People v. McCray

Filed 1/22/24 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A166084
v. (Alameda County Super. Ct.
JAMES MCCRAY, No. RM08389840)
Defendant and Appellant.
ORDER MODIFYING OPINION;
NO CHANGE IN JUDGMENT

BY THE COURT *:
The court orders that the opinion filed in this appeal on December 22,
2023, be modified as follows:

1. On page 6, in the second paragraph, in the set of parenthetical
citations that follow the second sentence in the paragraph, delete
the following language:

[dismissing an LPS appeal for mootness but exercising discretion
to address important issues likely to recur and evade review]

2. On page 7, in the sixth sentence in footnote 4, change “2018” to
“2019” so the sentence reads:

Without deciding whether, against this backdrop, the 2019 cane-
brandishing incident justifies the finding made here that McCray

* Streeter, Acting P. J., Goldman, J., Hiramoto, J. (Judge of the

Superior Court of California, County of Contra Costa, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution)

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 is currently dangerous to others, suffice it to say, that, as time
goes by, the evidence supporting continued recommitment in
future years will become increasingly attenuated in the absence
of more robust proof tying McCray’s mental illness to current
dangerousness.

The modifications effect no change in the judgment.

Dated: January 22, 2024 STREETER, Acting P. J.

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Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Andrew A. Steckler

Counsel: Keith Fox, under appointment by the Court of Appeal, for
Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising
Deputy Attorney General, and Eric J. Kohm, Deputy
Attorney General, for Plaintiff and Respondent.

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Filed 12/22/23 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A166084
v. (Alameda County Super. Ct.
JAMES MCCRAY, No. RM08389840)
Defendant and Appellant.

James McCray has been committed to the State Department of State
Hospitals (DSH) for a series of one-year terms more or less continuously since
2005 under the statutory scheme governing violent offenders with mental
health disorders (OMHD’s). (See Pen. Code, § 2960 et seq.). 1 He now appeals
from a 2022 order recommitting him for another one-year term.
McCray argues we should reverse the recommitment order for three
reasons: (1) contrary to the court’s findings, there is insufficient evidence he
represents a substantial danger of physical harm to others by reason of a
severe mental health disorder; (2) the court erred in finding he voluntarily

1 OMHD prisoners “were previously described as mentally disordered

offenders, or MDO’s. (See, e.g., People v. Blackburn (2015) 61 Cal.4th 1113,
1116 (Blackburn).) The Legislature recently changed this terminology to
‘offender with a mental health disorder.’ (Pen. Code, § 2962, subd. (d)(3);
Stats. 2019, ch. 9, § 7.)” (Public Guardian of Contra Costa County v. Eric B.
(2022) 12 Cal.5th 1085, 1095, fn. 3 (Eric B.).) For simplicity’s sake, we use
the term “OMHD” for all relevant periods of time.

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absented himself from his recommitment trial; and (3) prior to trial, the trial
court failed to obtain from him a knowing and intelligent waiver of his right
to a jury. The People argue that this appeal is moot, but on the merits
disagree on each point.
While we agree that McCray’s appeal must be dismissed as moot, under
the exception to the mootness doctrine for important issues that recur on
appeal yet evade review, we nonetheless address the trial court’s failure to
engage in a robust enough oral colloquy with McCray to establish that he
knowingly and intelligently waived his right to a jury trial.
I. BACKGROUND
McCray, 73 years old at the time of his 2022 recommitment trial,
suffers from schizophrenia. He was first hospitalized for this condition in the
1970s, and had a long history of auditory hallucinations; delusional beliefs;
paranoia that others were trying to hurt or threaten him; tangential and
disorganized speech and thinking; flattened affect, which manifested itself as
a mismatch between his facial expression and what he was feeling; and lack
of motivation, which included disinterest in attending treatment groups or
meetings with his treatment team.
McCray was convicted of assault with a deadly weapon in 2004, and
sentenced to prison. In 2005, he was found to be an OMHD, and as a
condition of parole he was committed for treatment to DSH’s predecessor
agency, the State of California Department of Mental Health. 2 After being

2 See Pen. Code, § 2962 (as “a condition of parole, a prisoner who meets

[specified] . . . criteria shall be provided necessary treatment by the State
Department of State Hospitals”). Prior to 2004, McCray had “ ‘an extensive
criminal history dating back to 1975 with charges including exhibiting a
deadly weapon not a firearm, battery, battery with serious bodily injury

2
released on five different occasions to a conditional release program
(CONREP) for outpatient treatment, he was rehospitalized each time for
noncompliance with treatment. The throughline leading to all these
rehospitalizations was failure to take medications. McCray was last
rehospitalized in November 2019.
On June 29, 2022, the Alameda County District Attorney’s Office
moved to consolidate three pending petitions to extend McCray’s OMHD
commitment for an additional year. The three petitions covered extensions
for 2020 to 2021, 2021 to 2022, and 2022 to 2023, respectively. The court
granted the motion to consolidate.
McCray waived his right to a jury trial, and the trial court found the
waiver to be knowing, intelligent, and voluntary. The court then conducted a
bench trial, which occurred over several days in July, August, and September
of 2022. At the August session of trial, the court found that McCray had
voluntarily absented himself from the proceedings.
In light of our disposition of this appeal, we need not describe in great
detail the evidence presented at McCray’s 2022 trial but will instead provide
the following general summary.
There was evidence of only one incident involving possible violence by
McCray. A CONREP clinical social worker testified that, in October 2019, he
went to McCray’s room to take him to a medical appointment. He entered
the room and spoke to McCray, who was located between the social worker
and the door of the room. The social worker described the ensuing
interaction as follows:

(multiple counts), obstruct/resist police officer, and assault with a deadly
weapon.’ ”

3
 “Mr. McCray said, I’m not going anywhere with you. I don’t have a
mental illness. There’s nothing wrong with me. And he has a cane. He uses
the cane, and he brandished the cane and stood in front of the door, and said,
I’m not going anywhere with you, and then started to walk towards me with
the cane. [¶] I . . . told him that if you don’t want to go, . . . I can’t make you
go, but I do need to you move away from the door so I could leave. [¶] And
after a short period of time he moved and let me walk out of the room.” When
the social worker was asked about his perceptions of McCray’s conduct
during this incident, he said he took it as “a threat to [do] physical harm with
the cane.”
The social worker also testified to McCray’s general pattern of
uncooperativeness with treatment, which included “[r]efusing to use
transportation. We would have transportation set up for him to come to our
program, ParaTransport transportation.· He would refuse to get on the
vehicle on many occasion[s].” He also “refus[ed] to participate in the group
therapy sessions that we schedule and we have for him, . . . continu[ed] [to]
insist[] that he was not mentally ill and did not need to be in the program,
and on several occasion[s] h[e] refus[ed] to take medication, . . . [and]
refus[ed] to get on the van to come in to get his shot.”
A state hospital psychiatrist who had worked with McCray and was
designated as an expert testified that McCray suffered from schizophrenia
and resulting symptoms, such as hallucinations and disorganized behaviors
and speech; that these symptoms were not in remission; that McCray had
very poor insight into his mental illness and was unaware of his chronic
symptoms; and that McCray did not meaningfully participate or engage in
his treatment.

4
 A state hospital clinical psychologist testified to conducting an
evaluation of McCray in order to assess his risk of dangerousness. She
pointed to McCray’s “history of violent behavior”; opined that this behavior
was of “high relevance” to his risk for future violence; and further opined that
he had a history of problems with relationships and antisocial behavior that
were of “moderate relevance” to his risk for future violence.
A state hospital forensic evaluation report prepared by a senior forensic
psychologist in October 2021 concluded that McCray represented a
substantial danger of physical harm to others by reason of a severe mental
disorder that was not in remission.
The trial court found it was proven true beyond a reasonable doubt that
McCray had a severe mental disorder; that the disorder was not in remission
and could not be kept in remission without treatment; and that as a result of
the disorder, McCray represented a substantial danger of physical harm to
others under Penal Code section 2970. The court ordered him recommitted
for a period of one year, ending on April 29, 2023.
McCray filed a timely notice of appeal. 3
II. DISCUSSION
A. McCray’s Appeal is Moot
The People argue McCray’s appeal is moot because the order from
which he has appealed recommitted him for a term that expired in April
2023, and prior to the expiration of this recommitment order, the District
Attorney filed a new recommitment petition. The record further indicates
that McCray has since been recommitted for one more year.

3 During the pendency of this appeal, McCray filed a “motion for

judicial notice” of a May 5, 2023 order issued by the trial court recommitting
him under Penal Code section 2972 until April 29, 2024. We grant this
request under Evidence Code sections 452 and 459.

5
 The mootness problem presented here “frequently arises in this area of
law given the short duration of conservatorships.” (Eric B., supra, 12 Cal.5th
at p. 1094, fn. 2.) The governing principles of justiciability are familiar ones.
In general, it is a court’s duty to decide “ ‘ “actual controversies by a judgment
which can be carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.” ’ ” (Eye Dog Foundation v.
State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)
The application of these principles here is straightforward. When,
during the pendency of an OMHD appeal, an event occurs such that the
appellate court cannot grant any effectual relief, the appeal becomes moot
and should ordinarily be dismissed. (See People v. Alsafar (2017)
8 Cal.App.5th 880, 882–883 (Alsafar); see also Conservatorship of Joseph W.
(2011) 199 Cal.App.4th 953, 960–961 (Joseph W.) [dismissing an LPS appeal
for mootness but exercising discretion to address important issues likely to
recur and evade review].) We conclude that Alsafar controls, and that
McCray’s appeal is moot because of his subsequent recommitment in 2023.
But there is an exception to the mootness doctrine for issues of
“continuing public importance” that are deemed “capable of repetition, yet
evad[e] review.” (Alsafar, supra, 8 Cal.App.5th at p. 883.) For the evading
review exception to apply, there must be more at stake than simple error-
correction in an individual case. The exception implicates the fundamental
role of an appellate court as a custodian of the law, which is why courts often
say it applies to issues that touch upon the “public interest.” (People v. Cheek
(2001) 25 Cal.4th 894, 897–898.)
We may exercise our discretion to address issues of this nature
notwithstanding a dismissal for mootness. The capable of repetition

6
exception to mootness has been invoked several times in OMHD
recommitment cases, most recently by the Supreme Court in Eric B., but also
by a number of Court of Appeal panels over the last 25 years. (See, e.g.,
Alsafar, supra, 8 Cal.App.5th at pp. 886–887; People v. Dunley (2016)
247 Cal.App.4th 1438, 1442–1443; People v. Gregerson (2011)
202 Cal.App.4th 306, 321; People v. Rish (2008) 163 Cal.App.4th 1370, 1380–
1381; People v. Williams (1999) 77 Cal.App.4th 436, 441, fn. 2.)
McCray argues that his sufficiency of the evidence and absence-from-
trial claims meet this standard. Even if we ultimately agreed there is merit
to one or both claims of error, 4 these are fact-specific issues and both are of

4 The sufficiency of the evidence issue, in particular, is close on the

present record. While even a single opinion by a psychiatric expert that a
person is currently dangerous can be sufficient to support the extension of an
OMHD commitment (People v. Bowers (2006) 145 Cal.App.4th 870, 879), such
an opinion must be based on more than speculation. Here, there is evidence
that McCray, who is now age 75, continues to be mentally ill. He is in denial
about his illness; is resistant to treatment; uncooperative and sometimes
vituperative with staff assigned to assist him; and prone to outbursts of
“agitation, hostility and bizarre behavior.” There is also evidence that, as a
much younger man, he had a significant criminal history of assaultive
conduct, and that the last episode of such conduct, which took place two
decades ago, was caused by his mental illness. Without deciding whether,
against this backdrop, the 2018 cane-brandishing incident justifies the
finding made here that McCray is currently dangerous to others, suffice it to
say, that, as time goes by, the evidence supporting continued recommitment
in future years will become increasingly attenuated in the absence of more
robust proof tying McCray’s mental illness to current dangerousness. “The
[United States Supreme Court] has repeatedly ‘recognized that civil
commitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.’ [Citation.] ‘Moreover, it is indisputable
that involuntary commitment to a [psychiatric] hospital after a finding of
probable dangerousness to self or others can engender adverse social
consequences to the individual. Whether we label this phenomena “stigma”

7
concern only to McCray. For us to address them now and render a legal
ruling that has no practical effect in this case would be pointless. Should
another recommitment proceeding be necessary, we see no reason why either
issue could not be brought before us in a future appeal if it recurs in that
proceeding. We also find it notable that no effort was made to seek calendar
preference in this appeal due to imminent mootness. To avoid mootness in a
subsequent appeal, McCray would be well-advised to proceed with greater
urgency and seek calendar preference.
Applying the Eric B. standard to McCray’s contention that the trial
court failed to obtain an effective waiver of his right to a jury trial, we come
to a different conclusion. This third assignment of error has legal
significance going beyond this case. We have seen the identical issue more
than once in moot OMHD recommitment appeals since our Supreme Court’s
2017 decision in People v. Sivongxxay (2017) 3 Cal.5th 151 (Sivongxxay), a
jury waiver case in which the court “emphasiz[ed] the value of a robust oral
colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury
trial.” (Id. at p. 169.) In an effort to rectify what appears to be a persistent
problem of deficient jury waivers in some OMHD recommitment cases, we
believe a published opinion addressing the jury waiver taken in this case is in
order. We therefore turn to that issue.

or choose to call it something else is less important than that we recognize
that it can occur and that it can have a very significant impact on the
individual.’ [Citation.]” (In re Howard N. (2005) 35 Cal.4th 117, 127–128,
quoting Addington v. Texas (1979) 441 U.S. 418, 425–426.)

8
 B. The Record Fails To Show That McCray Made a Knowing and
Intelligent Waiver of His Right to a Jury Trial
1. Relevant Proceedings Below
At the beginning of the trial in July 2022, the following dialogue
occurred:
“The COURT: . . . Good afternoon, all, including, of course, Mr.
McCray.
“And [McCray’s counsel], this is to be a court trial this afternoon?
“[MCCRAY’S COUNSEL]: Yes, that is the proposal. And I can voir
dire Mr. McCray on the issue.
“THE COURT: Okay. Please.
“[MCCRAY’S COUNSEL]: So Mr. McCray, you remember we talked
about you have the right to have a jury listen to the evidence in this case and
make the decision on whether or not you need more treatment at the
hospital.
“Do you remember talking about that?
“[MCCRAY]: Yeah.
“[MCCRAY’S COUNSEL]: And you decided that you wanted to have
the judge listen to the evidence and make the decision, to waive your right to
a jury, correct?
“[MCCRAY]: Yeah, yeah.
“[MCCRAY’S COUNSEL]: Okay. So the judge is supposed to make
sure that you understand that you have a right to have a jury but that you
are waiving that right in order to have the judge make the decision.
“Do you understand?
“[MCCRAY]: I waive that right.
“[MCCRAY’S COUNSEL]: Okay.
“[MCCRAY]: I waive.

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 “[MCCRAY’S COUNSEL]: Your Honor, does the Court or DA have any
other voir dire on that issue that you’d wish to hear?
“THE COURT: Mr. [Prosecutor], anything further?
“[PROSECUTOR]: No, Your Honor.
“THE COURT: Okay. That’s satisfactory to the Court. So I’ll take that
as a clear indication of acknowledgement and understanding of the jury right
and its waiver.”
The record supplies no other indication of McCray’s understanding of or
agreement to waive his right to a jury trial, such as a jury waiver form.
2. Legal Standards
The recommitment of OMHD defendants is governed by Penal Code
section 2972. 5 “If the court or jury finds that the patient has a severe mental
health disorder, that the patient’s severe mental health disorder is not in
remission or cannot be kept in remission without treatment, and that by
reason of the patient’s severe mental health disorder, the patient represents
a substantial danger of physical harm to others, the court shall order the
patient recommitted to the facility in which the patient was confined at the
time the petition was filed, or recommitted to the outpatient program in
which the patient was being treated at the time the petition was filed, or
committed to the DSH if the person was in prison. The commitment shall be
for a period of one year from the date of termination of . . . a previous
commitment . . . .” (§ 2972, subd. (c).)
Section 2972, subdivision (a) provides that in recommitment
proceedings a trial court “shall” advise an OMHD defendant of “the right to a
jury trial” and that “[t]he trial shall be by jury unless waived by both the
person and the district attorney.” (Id., subds. (a)(1) & (a)(2).) In Blackburn,

5 Undesignated statutory references are to the Penal Code.

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supra, 61 Cal.4th 1113, our Supreme Court, interpreting section 2972, held
that a defendant in an OMHD recommitment proceeding with the capacity to
make a knowing and voluntary waiver of the right to a jury trial must be
personally advised of that right, and that any waiver of that right must be
personal, knowing, and voluntary. (Id. at pp. 1124–1126.)
A trial court is not required to make, or confirm that a defendant is
given, a “ ‘specifically formulated canvass’ ” of a defendant’s right to a jury
trial in the course of determining whether a defendant has given a knowing,
intelligent, and voluntary waiver of that right. (Sivongxxay, supra, 3 Cal.5th
at p. 168; People v. Daniels (2017) 3 Cal.5th 961, 992–993 (lead opn. of
Cuéllar, J.) [“We continue to eschew any rigid rubric for trial courts to follow
in order to decide whether to accept a defendant’s relinquishment of this [jury
trial] right.”] (Daniels).) “[W]hether or not there is an intelligent, competent,
self-protecting waiver of jury trial by an accused must depend upon the
unique circumstances of each case.” (Adams v. U.S. ex rel. McCann (1942)
317 U.S. 269, 278; see Sivongxxay, supra, 3 Cal.5th at pp. 166–167.)
Our Supreme Court has emphasized that “the trial court is not merely
a passive receiver of an attempted [jury] waiver” (Daniels, supra, 3 Cal.5th at
p. 993 (lead opn. of Cuéllar, J.)) and has underlined the importance of a
carefully worded oral colloquy in evincing a knowing, intelligent, and
voluntary waiver of a jury trial. (Sivongxxay, supra, 3 Cal.5th at p. 169;
People v. Morelos (2022) 13 Cal.5th 722, 753.) Though there is no one-size-
fits-all formula for accomplishing this, there are some clear guideposts.
The court has specifically recommended, for example, advisement on
“the basic mechanics of a jury trial in a waiver colloquy, including but not
necessarily limited to the facts that (1) a jury is made up of 12 members of
the community; (2) a defendant through his or her counsel may participate in

11
jury selection; (3) all 12 jurors must unanimously agree in order to render a
verdict; and (4) if a defendant waives the right to a jury trial, a judge alone
will decide his or her guilt or innocence.” (Sivongxxay, supra, 3 Cal.5th at
p. 169.) The Supreme Court has even recommended, “[i]n situations where a
defendant has waived counsel, . . . the practice of appointing standby counsel
for the limited purpose of discussing with the defendant the decision to waive
a jury.” (Daniels, supra, 3 Cal.5th at pp. 999–1000 (lead opn. of Cuéllar, J.).)
Our task as a reviewing court is to independently examine the record to
determine whether a defendant’s jury waiver was knowing, intelligent, and
voluntary. (See People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Vargas
(1993) 13 Cal.App.4th 1653, 1660.) We will “uphold the validity of a jury
waiver ‘ “if the record affirmatively shows that it is voluntary and intelligent
under the totality of the circumstances.” ’ [Citation.] We do not start with a
presumption of validity that may only be rebutted by signs of a defendant’s
confusion or unwillingness in entering a waiver. Instead, a reviewing court
satisfies itself of a legitimate waiver only when the record affirmatively
demonstrates it was knowing and intelligent.” (Daniels, supra, 3 Cal.5th at
p. 991 (lead opn. of Cuéllar, J.); see People v. Collins (2001) 26 Cal.4th 297,
310.)
The failure to obtain a valid jury trial waiver in an OMHD commitment
proceeding “defies ordinary harmless error analysis.” (Blackburn, supra,
61 Cal.4th at p. 1134.) “To speculate about whether a defendant would have
chosen a jury trial if he or she had been in a position to make a personal
choice would pose insurmountable difficulties, as would an inquiry into what
effect, if any, that choice would have had on the outcome of the trial. . . .
‘[W]here a case improperly is tried to the court rather than to a jury, there is
no opportunity meaningfully to assess the outcome that would have ensued in

12
the absence of the error.’ [Citation.]” (Ibid.) Accordingly, “a trial court’s
failure to obtain a required personal jury trial waiver [i]s tantamount to the
denial of a jury trial, and as such, it constitutes a ‘miscarriage of justice’
under California Constitution, article VI, section 13.” (Ibid.) Thus, the
failure to obtain a valid jury trial waiver in an OMHD commitment
proceeding “requires reversal without inquiry into the strength of the
evidence in a particular case.” (Id. at p. 1133.)
That said, “[t]he concept of harmless error” does apply in this context in
a “limited sense.” (Blackburn, supra, 61 Cal.4th at p. 1136.) While “a trial
court’s failure to properly advise an [OMHD] defendant of the right to a jury
trial does not by itself warrant automatic reversal[,] . . . a trial court’s
acceptance of a defendant’s personal waiver without an express advisement
may be deemed harmless if the record affirmatively shows, based on the
totality of the circumstances, that the defendant’s waiver was knowing and
voluntary.” (Ibid.) “[T]he requirement of an affirmative showing means that
no valid waiver may be presumed from a silent record.” (Ibid.)
For trial judges, the practical effect of these standards of appellate
review and harmless error is important to appreciate. Because all of the
governing principles here are biased in favor of demonstrably effective
waivers, they encourage robust, on-the-record colloquies that leave nothing to
assumption or guesswork about what an OMHD defendant was told.
3. Analysis
We conclude the record in this case is insufficient to support the
determination that McCray made a valid waiver of his right to a jury.
The trial court did not take any steps itself to determine if McCray
understood what a jury trial entailed or how it differed from a bench trial.
(See Sivongxxay, supra, 3 Cal.5th at p. 169.) Instead, the court relied
entirely on McCray’s counsel’s perfunctory questioning of McCray on the

13
topic of his right to jury trial. Counsel began by reminding McCray of a
conversation the two of them previously had had concerning McCray’s “right
to have a jury listen to the evidence in this case and make the decision on
whether or not you need more treatment at the hospital,” and that McCray
“decided that you wanted to have the judge listen to the evidence and make
the decision, to waive your right to a jury.”
Counsel then asked McCray if he understood that “the judge is
supposed to make sure that you understand you have a right to have a jury
but that you are waiving that right in order to have the judge make the
decision,” to which McCray replied twice that he was waiving that right.
This exchange sheds no light on McCray’s awareness of the nature of the jury
right he was abandoning or the consequences of his decision to abandon it.
Nonetheless, the trial court declined counsel’s invitation to ask further
questions and found this exchange showed “a clear indication of
acknowledgement and understanding of the jury right and its waiver.”
We disagree. Whatever it was that McCray acknowledged and
understood is anything but clear. Counsel said nothing to McCray on the
record to explain the significance of a jury trial, such as that McCray had the
right to participate in the selection of a jury, or that once selected, the jury
had to unanimously agree in order to render a verdict. And despite the
guidance provided by Blackburn, Sivongxxay, and Daniels, the court failed to
explore McCray’s understanding of any of these matters with him. There was
no discussion between the court and McCray about how a jury trial works or
the difference between a bench trial and a trial by jury. The court did not
even ask McCray’s counsel if he concurred with McCray’s waiver decision.
The People do not attempt to argue that McCray was sufficiently
informed at the hearing of the basic mechanics of a jury trial or its differences

14
from a bench trial. Instead, they would have us conclude from the “totality of
the circumstances” that McCray’s waiver was knowing and intelligent. The
People’s argument on this point proceeds in two steps. First, we are told,
McCray’s counsel’s presence and participation was “critical” to the analysis of
whether his waiver was knowing and intelligent, including counsel’s
confirmation to the court that McCray preferred a bench trial, his willingness
to “voir dire” McCray on the issue, and his reminding McCray of their
previous conversation about his right to a jury trial. Here, the People rely on
pre-Sivongxxay cases and the statement in Daniels that “[c]ounsel plays a
crucial part in transmitting information to the client” about waiver of the
right to a jury trial (Daniels, supra, 3 Cal.5th at p. 996 (lead opn. of Cuéllar,
J.)). Second, the People emphasize that McCray, after recalling talking with
his counsel about his right to a jury trial and his preference for a bench trial,
“not once, but twice” stated without hesitation that he waived his right to a
jury trial.
We are unconvinced. To begin with, as the Daniels court observed,
“The phrase, ‘You don’t know what you don’t know’ encapsulates the futility
of relying on defendants to raise questions or identify misunderstandings on
their own when they lack the very basis to understand what lies beyond the
scope of their knowledge.” (Daniels, supra, 3 Cal.5th at p. 995 (lead opn. of
Cuéllar, J.).) “[C]onfidence does not imply comprehension. Individuals are
entirely capable of categorically asserting a position without awareness that
the roots of that position lie in ignorance or lack of reflection. It was
incumbent upon the court to verify, not merely to assume, that Daniels
indeed grasped the actual nature of the jury right—even if only at a basic
level. In his own mind, Daniels may have had an impression of what a jury
trial is. Just what impression that was . . . is well beyond what we can

15
discern from this record.” (Id. at p. 996 (lead opn. of Cuéllar, J.).) That is
equally true here.
The phrase “totality of the circumstances,” invoked repeatedly by the
People, is not a talisman that serves to validate any waiver colloquy, no
matter how general. While it is true that representation by counsel is one of
the circumstances to consider in determining whether a defendant’s waiver is
valid (Sivongxxay, supra, 3 Cal.5th at p. 173, fn. 8), it is hardly sufficient.
Nor does McCray’s represented status take on any greater significance in
light of how readily or vigorously he stated his agreement to the waiver. For
all we know, his ready assent indicates nothing more than that he
understood he was to follow instructions while in court. Under a standard
that requires us to determine whether the record “affirmatively
demonstrates” an effective waiver (Daniels, supra, 3 Cal.5th at p. 991 (lead
opn. of Cuéllar, J.); see People v. Collins, supra, 26 Cal.4th at p. 310), nothing
we see here meets the requisite standard.
The essential problem in this case is that the trial court effectively
outsourced to counsel the task of ensuring McCray fully understood what he
was giving up, and then did nothing to verify what counsel advised his client.
Counsel’s remarks indicate only that the two discussed McCray’s right to a
jury trial, not that they discussed anything about the content of that right,
and the remarks give no indication of whether McCray believed he had
sufficient time to discuss the matter fully with his counsel. These lacunae in
the record underscore the importance of the court directly informing an
OMHD defendant—someone who by definition is mentally impaired—about
the right being waived, as only then can a meaningful record assuredly be
made regarding a defendant’s understanding of the meaning of a jury waiver.
(See Blackburn, supra, 61 Cal.4th at p. 1137 [“Ultimately, we emphasize that

16
the most certain means of ensuring a valid waiver is careful compliance with
the express advisement and waiver process explained in this opinion.”].)
The record of the waiver taken in this case is similar to those in People
v. Jones (2018) 26 Cal.App.5th 420 (Jones) and People v. Blancett (2017)
15 Cal.App.5th 1200 (Blancett). Jones was accused of second degree murder
and child abuse. (Jones, at p. 423.) Represented by counsel, she sought to
waive her right to a jury trial. (Id. at p. 428.) She answered affirmatively to
two questions asked by the prosecutor taking her waiver: “ ‘Ms. Jones, do you
understand your right to a jury trial?’ ” and “ ‘Do you agree to waive that
right and have [the judge], sitting alone, decide the case?’ ” (Ibid.)
While acknowledging the precept that no specific form of advisement is
required (Jones, supra, 26 Cal.App.5th at p. 430), the Jones panel noted that
in several cases where jury waivers were found to be valid, “the trial courts
inquired extensively of the defendants before accepting their jury trial
waivers, specifically advising them that they would be giving up the right to
have their case decided by 12 members of a jury drawn from the community
or comprised of citizens.” (Id. at p. 431, citing Sivongxxay, supra, 3 Cal.5th
151, People v. Weaver (2012) 53 Cal.4th 1056, People v. Wrest (1992) 3 Cal.4th
1088, and U.S. ex rel. Williams v. DeRobertis (7th Cir. 1983) 715 F.2d 1174.)
The Jones panel also recognized that the OMHD defendant in that case
was represented by counsel and that the record showed she “had some
discussion with her attorney before the waiver was taken in that it was her
attorney who indicated to the trial court that Jones wanted to waive her right
to a jury trial.” (Jones, supra, 26 Cal.App.5th at p. 435.) But the panel
nonetheless reversed, describing what might as well have been the record in
McCray’s case. Because “the record does not show whether Jones’s attorney
ever discussed with her the nature of a jury trial,” and because “[t]here is no

17
showing from this record that Jones understood the nature of the right to a
jury trial she was relinquishing,” the panel concluded that the trial court did
not “take steps to ensure Jones ‘comprehend[ed] what the jury trial right
entails.’ ” (Id. at pp. 435, 436.) It explained, “The trial court’s two-question
inquiry of Jones, as to whether she ‘underst[ood] [her] right to a jury trial’
and whether she agreed to waive that right and have the trial judge ‘sitting
alone, decide the case’ does not affirmatively show that Jones understood the
nature of the right to a jury trial she was relinquishing.” (Id. at p. 423.)
Jones relied on Blancett (Jones, supra, 26 Cal.App.5th at pp. 433–434),
which also held that a jury waiver was invalid under circumstances similar to
those before us. The Blancett court considered whether an OMHD defendant,
Blancett, facing a hearing in which he was challenging a requirement that, as
a condition of parole, he accept treatment from the DSH as an OMHD, made
a knowing and intelligent waiver of his right to a jury based on his
confirmation to the court that, as his attorney represented, he was “ ‘okay
with having a judge decide [his] case and not a jury.’ ” (Blancett, supra,
15 Cal.App.5th at p. 1203.)
The Blancett court concluded that Blancett “did not waive his right to a
jury trial with full awareness of the nature of the right being abandoned and
the consequences of the decision to abandon it.” (Blancett, supra,
15 Cal.App.5th at p. 1206.) It pointed out, citing Sivongxxay, that the trial
court did not advise Blancett of his right to a jury trial or “explain the
significant attributes or mechanics of a jury trial. ([Sivongxxay, supra,
3 Cal.5th] at p. 169.) Neither did the court inquire whether [Blancett] had
sufficient opportunity to discuss the decision with his attorney, whether his
attorney explained the differences between a bench trial and a jury trial, or

18
whether Blancett had any questions about the waiver. (Id. at pp. 169–170.)”
(Blancett, at p. 1206.)
In short, in both Jones and Blancett, (1) the waiver colloquies were
limited to asking the defendants whether they wanted to have their cases
decided by the court rather than a jury; (2) the defendants were not advised
about any of the other features of a jury trial; and (3) the trial courts did not
ask the defendants whether they had had sufficient opportunities to discuss
their jury waivers with their counsel. That describes this case as well. On
the record before us, the problem we see is not a matter of lack of specificity
or failure to give some particular formulation of a waiver admonition.
Rather, as noted above, the problem is that we cannot tell what McCray was
told about his waiver—at all. Simply alluding to unspecified statements
made outside the courtroom by counsel is not enough to establish a valid
waiver.
The People attempt to distinguish Jones and Blancett, pointing out that
in those cases the OMHD defendants did not have relevant experience with
the justice system. (See Jones, supra, 26 Cal.App.5th at pp. 436–437;
Blancett, supra, 15 Cal.App.5th at pp. 1206–1207.) By contrast, the People
observe, McCray had a great deal of accumulated experience with the
commitment process. He “was familiar with OMHD proceedings given that
he was initially committed in 2005, and recommitted thereafter.” This, in our
view, is not a material distinction. We are not convinced we may infer
McCray’s level of understanding from the fact he had been through some
number of commitment and recommitment proceedings before. It is
indisputable he had been, but that says nothing about whether anyone ever
explained to him what it means to have a jury trial—or to give up the right to
one. None of the People’s citations to the records in these prior proceedings

19
shows whether there were jury waivers in any of those cases, and if so,
whether the waiver advisements were any more robust than the one McCray
received in 2022.
In short, the “totality of the circumstances” here does not demonstrate
that McCray’s waiver of his right to a jury prior to his 2022 recommitment
trial was knowing and intelligent. We conclude it was not.
III. DISPOSITION
The appeal is dismissed as moot.

STREETER, Acting P. J.

WE CONCUR:

GOLDMAN, J.
HIRAMOTO, J. *

* Judge of the Superior Court of California, County of Contra Costa,

assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Andrew A. Steckler

Counsel: Keith Fox, under appointment by the Court of Appeal, for
Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising
Deputy Attorney General, and Eric J. Kohm, Deputy
Attorney General, for Plaintiff and Respondent.

People v. McCray – A166084