People v. Blackburn

Filed 8/17/15 (this opn. precedes companion case, S211329, also filed 8/17/15)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, ) S211078

)

v. )

) Ct.App. 6 H037207

BRUCE LEE BLACKBURN, )

) Santa Clara County

Defendant and Appellant. ) Super. Ct. No. BB304666

____________________________________)

The statutory scheme for extending the involuntary commitment of a

mentally disordered offender (hereafter sometimes MDO) beyond termination of

parole requires the trial court to ―advise the person of his or her right to be

represented by an attorney and of the right to a jury trial‖ and to hold a jury trial

―unless waived by both the person and the district attorney.‖ (Pen. Code, § 2972,

subd. (a) (hereafter section 2972(a)).) We granted review to decide whether a trial

court must advise the defendant personally of his or her right to a jury trial and

whether the trial court must obtain a personal waiver of that right from the

defendant before holding a bench trial to extend the defendant‘s commitment as a

mentally disordered offender.

We conclude that the trial court must advise the MDO defendant personally

of his or her right to a jury trial and, before holding a bench trial, must obtain a

personal waiver of that right from the defendant unless the court finds substantial

evidence — that is, evidence sufficient to raise a reasonable doubt — that the

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defendant lacks the capacity to make a knowing and voluntary waiver, in which

case defense counsel controls the waiver decision.

Here, the trial court did not advise defendant Bruce Lee Blackburn of his

right to a jury trial, did not obtain Blackburn‘s personal waiver of that right, and

did not find that there was substantial evidence that Blackburn lacked the capacity

to make a knowing and voluntary waiver. Thus, the trial court erred in conducting

a bench trial that extended Blackburn‘s commitment. When a trial court errs in

completely denying an MDO defendant his or her statutory right to a jury trial, the

error constitutes a miscarriage of justice and automatically requires reversal. In

Blackburn‘s case, however, because the trial court and the parties, in reliance on

prior law, likely did not contemplate the need to make a record in conformity with

today‘s holding, we reverse the Court of Appeal‘s judgment upholding the

extension order and remand the case to that court with directions to remand to the

trial court for a proper determination of whether Blackburn personally made a

knowing and voluntary waiver of his right to a jury trial or whether, at the time of

counsel‘s waiver, there was substantial evidence that Blackburn lacked the

capacity to make a knowing and voluntary waiver.

I.

In 2004, Blackburn was convicted of first degree burglary and forcible false

imprisonment. Blackburn had entered the home of an 85-year-old woman at night,

and she awoke to find him naked and lying on top of her. He pinned her down

with his legs and restrained her by pulling her hair, but the woman managed to

escape. When the police arrived, they found Blackburn sitting naked on the toilet,

eating pork chops, and speaking incoherently. In December 2006, he was declared

a mentally disordered offender and committed to Atascadero State Hospital as a

condition of parole. His commitment was extended in 2009 and again in 2010.

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In April 2011, the Santa Clara County District Attorney filed a third

petition to extend Blackburn‘s commitment. No record was kept of the relevant

pretrial proceedings. However, according to a settled statement requested by the

Court of Appeal, defense counsel notified the trial court that Blackburn opposed

an extension of his commitment and wanted a trial. Defense counsel requested a

bench trial, and the prosecutor agreed.

At trial, Dr. Kevin Perry testified that Blackburn suffered from

―schizoaffective disorder, bipolar type‖ and was not in remission. He noted that

Blackburn was paranoid, believed that other patients were stealing from him,

believed that he is the Son of God, and suggested that he could communicate over

long distances without technology. Blackburn appeared to understand the purpose

of the evaluation but jumped from topic to topic without logical connections.

Blackburn generally continued to take his medication after a court order

compelling him to take it had expired and realized that it was helpful to attend

group therapy. When asked about the basis for his conclusion that Blackburn

presented a risk to the community, Dr. Perry responded that he showed ―active

symptoms of the same disorder that was previously adjudicated as a causal or an

aggravating factor in a violent crime.‖ Dr. Perry also explained that before

Blackburn could be released, he needed to develop a discharge plan to help

identify and manage his symptoms, and that Blackburn had not completed a viable

plan. Blackburn did not testify and did not attempt to undermine Dr. Perry‘s

testimony. The court sustained the petition and extended Blackburn‘s

commitment.

Blackburn appealed, arguing that the trial court prejudicially erred by

failing to advise him of the right to a jury trial and by conducting a bench trial

without first obtaining his personal waiver of that right. Although Blackburn‘s

commitment had expired, the Court of Appeal exercised its discretion to address

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his claims because the issues are recurring and would otherwise evade review.

The court held that the language of section 2972(a) ―imposes a mandatory duty‖

on the trial court to advise the defendant and ―reflects a legislative intent to

judicially ensure that ‗the person‘ knows that he or she has the right to a jury

trial.‖ (All subsequent statutory references are to the Penal Code unless otherwise

indicated.) The Court of Appeal found that the trial court had not advised

Blackburn of his right to a jury trial, but held that the omission was harmless

because it was not reasonably probable Blackburn would have obtained a more

favorable result had he been advised of his right to a jury trial.

The Court of Appeal further held that section 2972(a) does not require

personal waiver of the right to a jury trial. However, the court said, because the

purpose of the jury trial advisement is ―to inform the MDO of the right to a jury

trial so that he or she can decide whether to waive it,‖ section 2972(a)‘s waiver

requirement cannot reasonably be read to give counsel ―exclusive control‖ over

the decision whether to waive a jury trial. Instead, the court explained, counsel

may waive a jury trial only ―at the MDO‘s direction or with his or her knowledge

and consent,‖ or ―over an MDO‘s objection when the circumstances cast

reasonable doubt on the MDO‘s mental capacity to determine what is in his or her

best interests.‖ The court found that because counsel had likely informed

Blackburn of his rights and there was no indication he disagreed with counsel‘s

decision to waive a jury trial, Blackburn could not meet his burden to show error.

Further, even if Blackburn could establish error, he could not establish prejudice in

light of Dr. Perry‘s uncontested adverse testimony.

Finally, the Court of Appeal observed: ―The best assurance of compliance

is a record that reflects it.‖ Accordingly, the court created a prospective rule for

lower courts requiring that, when a trial court conducts a bench trial to extend an

MDO defendant‘s commitment without receiving a personal waiver from the

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defendant, the record must reflect the facts establishing the defendant‘s awareness

of the right to a jury and the validity of counsel‘s waiver. Alternatively, the record

must contain an advisement and waiver form signed by the defendant.

We granted review in this case and in the companion case of People v. Tran

(Aug. 17, 2015, S211329) ___ Cal.4th ___, which presents similar issues in the

context of commitment extension proceedings for persons found not guilty of a

criminal offense by reason of insanity. (§ 1026.5, subd. (b).)

II.

―[C]ivil commitment for any purpose constitutes a significant deprivation

of liberty.‖ (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington); see

Foucha v. Louisiana (1992) 504 U.S. 71, 80; Humphrey v. Cady (1972) 405 U.S.

504, 509 [commitment to a mental hospital produces ―a massive curtailment of

liberty‖]; People v. Barrett (2012) 54 Cal.4th 1081, 1098 (Barrett) [―civil

commitment for any purpose can affect liberty and other vital interests‖].)

―Moreover, it is indisputable that involuntary commitment to a mental 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‘

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.‖

(Addington, at pp. 425–426; see Vitek v. Jones (1980) 445 U.S. 480, 492 [―The

loss of liberty produced by an involuntary commitment is more than a loss of

freedom from confinement.‖]; Conservatorship of Roulet (1979) 23 Cal.3d 219,

223 [involuntary ―confinement in a mental hospital . . . deprived appellant of

freedom in its most basic aspects and placed a lasting stigma on her reputation‖].)

At the same time, a civil commitment proceeding is not a criminal

proceeding, even though it is often collateral to a criminal trial. We have

recognized that some constitutional protections available in the criminal context

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apply as a matter of due process to defendants in certain commitment proceedings.

(See People v. Allen (2008) 44 Cal.4th 843, 870 (Allen) [defendant in sexually

violent predator (SVP) proceeding has due process right to testify over the

objection of counsel]; People v. Burnick (1975) 14 Cal.3d 306, 322–323 (Burnick)

[requirement of proof beyond a reasonable doubt]; People v. Feagley (1975) 14

Cal.3d 338 (Feagley) [jury verdict must be unanimous].) But we have also found

various constitutional protections inapplicable. (See People v. McKee (2010) 47

Cal.4th 1172, 1193–1195 (McKee) [SVP commitment statute is not punitive and

thus does not violate ex post facto clause]; Conservatorship of Ben C. (2007) 40

Cal.4th 529, 539 [due process does not require independent appellate review of

whether there is any arguable issue on appeal from the imposition of a

conservatorship]; see also Kansas v. Hendricks (1997) 521 U.S. 346, 369

[initiation of civil commitment proceeding ―does not constitute a second

prosecution‖ for double jeopardy purposes].)

In In re Gary W. (1971) 5 Cal.3d 296, a case involving the extension of

confinement of a minor ward of the California Youth Authority, we observed that

―[t]he right to a jury trial in an action which may lead to . . . involuntary

confinement‖ is ―fundamental‖ (id. at p. 306) and emphasized that when

individuals are ―threatened with involuntary confinement, [the right to a jury trial

is] equally important whether the threat of confinement originates in a civil action

or a criminal prosecution‖ (id. at p. 307). However, we have not previously

addressed whether a mentally disordered offender has a constitutional right to a

jury trial in a commitment extension proceeding, and we do not address that

question here. In the wake of decisions of this court finding various due process

guarantees applicable to certain commitment proceedings (see In re Moye (1978)

22 Cal.3d 457, 467; Burnick, supra, 14 Cal.3d at pp. 324–325; Feagley, supra, 14

Cal.3d at p. 350), the Legislature enacted the MDO statute in 1985, setting forth

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procedural protections generally available only in the criminal context, including

the right to a jury trial. (Stats. 1985, ch. 1418, § 1, pp. 5009–5010.) The

Legislature later moved these protections to sections 2966 and 2972. (Stats. 1986,

ch. 858, §§ 4, 7, pp. 2953–2956.) The MDO commitment scheme has thus been

described as ―something of a hybrid, a civil hearing with criminal procedural

protections.‖ (People v. Montoya (2001) 86 Cal.App.4th 825, 830 (Montoya); see

People v. Harrison (2013) 57 Cal.4th 1211, 1229 [―Although a civil commitment

proceeding is not criminal in nature, it does afford the prisoner many of the

protections of a criminal defendant . . . .‖].)

In People v. Masterson (1994) 8 Cal.4th 965 (Masterson), we held that

counsel can waive the right to a jury trial, ―even over the defendant‘s objection,‖

in a proceeding under section 1368 to determine a defendant‘s competence to

stand trial. (Masterson, at p. 974.) Our reasoning in Masterson provides guidance

on the proper analytical approach to the case before us. There we began by citing

the general proposition that ― ‗counsel is captain of the ship‘ ‖ and has authority to

bind the client in procedural aspects of litigation. (Id. at p. 969.) But we did not

rely on that general proposition to resolve the case, nor did we ―decide whether . . .

there are some statutory rights that counsel may not waive.‖ (Id. at p. 970.)

―Rather,‖ we said, ―we base our conclusion upon an examination of the nature of

competency proceedings as well as the jury trial right at issue.‖ (Id. at pp. 970–

971.)

In addition to noting that the right to a jury trial in a competency

proceeding ―is statutory, not constitutional,‖ we observed in Masterson that the

applicable statutes neither require an advisement nor address the issue of waiver.

(Masterson, supra, 8 Cal.4th at p. 969, citing §§ 1368, 1369). We explained:

―The sole purpose of a competency proceeding is to determine the defendant‘s

present mental competence, i.e., whether the defendant is able to understand the

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nature of the criminal proceedings and to assist counsel in a rational manner.

(Pen. Code, § 1367; [citations].) Because of this, the defendant necessarily plays a

lesser personal role in the proceeding than in a trial of guilt. How can a person

whose competence is in doubt make basic decisions regarding the conduct of a

proceeding to determine that very question?‖ (Masterson, at p. 971.) Crucial to

our reasoning was the fact that ― ‗[a] section 1368 hearing is held only after there

has been a prima facie showing of mental incompetence.‘ ‖ (Id. at p. 972; see id.

at p. 974 [―the court here declared a doubt as to defendant‘s competence‖]; former

§ 1367.1, subd. (a), added by Stats. 1992, ch. 722 and repealed by Stats. 2014,

ch. 759 [judicial finding based on ―the defendant‘s behavior or other evidence‖

that ―there is reason to believe that the defendant is mentally disordered and as a

result may be incompetent to stand trial‖ is a prerequisite to a section 1368

competency hearing].) ― ‗Of necessity, therefore, defendant‘s attorney must play a

greater role in making fundamental choices for him, and cannot be expected to

seek approval of strategic decisions made in the course of obtaining and presenting

proof of incompetence.‘ ‖ (Masterson, at p. 972.)

Thus, Masterson focused on the particular statutory scheme and nature of

the ― ‗special proceeding‘ ‖ at issue. (Masterson, supra, 8 Cal.4th at p. 969.) The

statutes at issue in Masterson make clear that there has already been a prima facie

showing of incompetence by the time a defendant faces a competency hearing, and

thus it is sensible that counsel‘s decisions may trump the defendant‘s. In resolving

the present case, we focus our attention on the statutory scheme for extending an

MDO defendant‘s commitment and on the nature and purpose of those

proceedings.

III.

Unlike the competency hearing statutes considered in Masterson, the

statutory scheme that governs MDO commitment proceedings expressly provides

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for advisement and waiver of the right to a jury trial. We briefly describe the

scheme and then focus on its specific provisions addressing the right to a jury trial.

A.

The Mentally Disordered Offender Act ―provides that individuals convicted

of certain enumerated violent offenses caused or aggravated by a severe mental

disorder, and who pose a substantial threat of harm to others, may be required to

receive mental health treatment as a condition of parole.‖ (Lopez v. Superior

Court (2010) 50 Cal.4th 1055, 1057 (Lopez); see McKee, supra, 47 Cal.4th at

pp. 1201–1202.) An MDO commitment is neither penal nor punitive; it has ―the

dual purpose of protecting the public while treating severely mentally ill

offenders.‖ (Lopez, at p. 1061.) ―Any commitment under this article places an

affirmative obligation on the treatment facility to provide treatment for the

underlying causes of the person‘s mental disorder.‖ (§ 2972, subd. (f).)

A mentally disordered offender may be involuntarily committed at three

different stages: as a condition of parole (§ 2962), in conjunction with the

extension of parole (§ 2966, subd. (c)), and following release from parole

(§§ 2970, 2972). (See Lopez, supra, 50 Cal.4th at pp. 1061–1062.) At issue in

this case is the third stage.

The district attorney may seek continued treatment and commitment of a

mentally disordered offender beyond the termination of parole by filing a petition

in the superior court alleging that the individual suffers from a severe mental

disorder that is not in remission and that he or she poses a substantial risk of harm

to others. (§ 2970.) Section 2972(a) sets forth the procedures applicable to a

hearing on such a petition. Its full text, with italics identifying the two sentences

central to this dispute, reads: ―The court shall conduct a hearing on the petition

under Section 2970 for continued treatment. The court shall advise the person of

his or her right to be represented by an attorney and of the right to a jury trial.

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The attorney for the person shall be given a copy of the petition, and any

supporting documents. The hearing shall be a civil hearing, however, in order to

reduce costs the rules of criminal discovery, as well as civil discovery, shall be

applicable. [¶] The standard of proof under this section shall be proof beyond a

reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its

verdict. The trial shall be by jury unless waived by both the person and the

district attorney. The trial shall commence no later than 30 calendar days prior to

the time the person would otherwise have been released, unless the time is waived

by the person or unless good cause is shown.‖ (§ 2972(a), italics added.) The

same protections apply to a hearing in the superior court on a petition challenging

an MDO commitment at either of the other two phases, except that a hearing must

be conducted ―within 60 calendar days after the petition is filed, unless either time

is waived by the petitioner or his or her counsel, or good cause is shown.‖

(§ 2966, subd. (b) (hereafter section 2966(b)).)

B.

We review de novo questions of statutory construction. (Imperial

Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) In doing so, ― ‗our

fundamental task is ―to ascertain the intent of the lawmakers so as to effectuate the

purpose of the statute.‖ ‘ ‖ (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,

321.) We begin with the text, ―giv[ing] the words their usual and ordinary

meaning [citation], while construing them in light of the statute as a whole and the

statute‘s purpose [citation].‖ (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51

Cal.4th 524, 529–530 (Pineda).) ―If no ambiguity appears in the statutory

language, we presume that the Legislature meant what it said, and the plain

meaning of the statute controls.‖ (People v. Gray (2014) 58 Cal.4th 901, 906.)

We first address whether the trial court erred in failing to advise Blackburn

of his right to a jury trial. The advisement provision states: ―The court shall

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advise the person of his or her right to be represented by an attorney and of the

right to a jury trial.‖ (§ 2972(a).) The meaning of this text is unambiguous. The

court must advise the defendant of the right to counsel and the right to a jury trial.

And the court must make this advisement to ―the person,‖ not to his or her

attorney. This plain meaning is confirmed by the very next sentence of section

2972(a), which distinguishes between ―the person‖ and his or her ―attorney.‖

(Ibid. [―The attorney for the person shall be given a copy of the petition, and any

supporting documents.‖].)

The Attorney General argues that when counsel is present, the required

advisement is ―moot‖ because counsel is obligated to advise the client of his or her

rights. But the statutory mandate contains no mootness exception. Moreover,

because mentally disordered offenders have not only a right to counsel but a right

to appointed counsel in case of indigence (§ 2972, subd. (b)), the Attorney

General‘s view would suggest that the Legislature intended the advisement

provision to apply only when a defendant chooses to represent himself or herself

and is sufficiently competent to do so. We find this narrow inference of legislative

intent improbable in light of the statute‘s unqualified directive.

It may be argued that it is sufficient for the trial court to give the

advisement to counsel, who is then obligated to advise the client. But this, too,

would empty the advisement provision of meaningful content, for it is hard to see

what purpose would be served by advising counsel when counsel is already

presumed to know the law. (See Tubbs v. Southern Cal. Rapid Transit Dist.

(1967) 67 Cal.2d 671, 679.) The Legislature saw fit to include the statutory

provision requiring an advisement even though MDO defendants are often

represented by counsel and even though counsel is presumed to know the

defendant‘s rights and is obligated to advise the defendant accordingly. The

meaning of the provision is clear. As the Court of Appeal explained, ―[i]t reflects

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a legislative intent to judicially ensure that ‗the person‘ knows that he or she has

the right to a jury trial.‖ We conclude that section 2972(a) requires the trial court

to directly advise the MDO defendant on the record in a court proceeding.

In this case, the record does not indicate that the trial court advised

Blackburn of his right to a jury trial as section 2972(a) requires. This omission

was error.

C.

We next address whether section 2972(a)‘s waiver provision requires an

MDO defendant to personally waive his or her right to a jury trial before the court

may hold a bench trial. We again begin with the text, ―giv[ing] the words their

usual and ordinary meaning [citation], while construing them in light of the statute

as a whole and the statute‘s purpose [citation].‖ (Pineda, supra, 51 Cal.4th at

pp. 529–530.) The waiver provision says: ―The trial shall be by jury unless

waived by both the person and the district attorney.‖ (§ 2972(a).)

In construing these words, we recognize that in ordinary civil actions, the

―general rule‖ is that counsel has authority to bind the client in virtually all aspects

of litigation, including waiver of the state constitutional right to a jury trial. (In re

Horton (1991) 54 Cal.3d 82, 95; see id. at p. 95 [―counsel is captain of the ship‖];

Zurich G. A. & L. Ins. Co., Ltd. v. Kinsler (1938) 12 Cal.2d 98, 105; Code Civ.

Proc., § 283, subd. 1.) Commitment proceedings, however, are not ordinary civil

actions; they are ― ‗special proceedings of a civil nature.‘ ‖ (In re Gary W., supra,

5 Cal.3d at p. 309; see People v. Yartz (2005) 37 Cal.4th 529, 536.) And they

threaten the possibility of ―a significant deprivation of liberty.‖ (Addington,

supra, 441 U.S. at p. 425.) As in Masterson, we train our attention on the text and

purpose of the particular statutes that govern this special proceeding to determine

whether the decision to waive a jury trial must be made by the defendant or may

be made by counsel notwithstanding the defendant‘s wishes.

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Ultimately, we construe the waiver provision of section 2972(a) to establish

a default rule that a court must obtain a personal waiver of the defendant‘s right to

a jury trial before holding a bench trial. But when the trial court finds substantial

evidence that defendant lacks the capacity to make a knowing and voluntary

waiver, control of the decision shifts to defense counsel.

1.

Several considerations suggest that section 2972(a) gives the defendant, not

counsel, primary control over the waiver decision. First, as explained above, the

first two usages of ―the person‖ in section 2972(a) refer specifically to the

defendant and cannot be read to mean ―the defendant or his or her attorney.‖ The

third usage of ―the person‖ in section 2972(a) appears in the waiver provision, and

―it is generally presumed that when a word is used in a particular sense in one part

of a statute, it is intended to have the same meaning if it appears in another part of

the same statute.‖ (People v. Dillon (1983) 34 Cal.3d 441, 468 (Dillon).)

Second, reading the waiver provision together with the advisement

provision, as we must, confirms that the waiver decision belongs to the defendant

in the first instance. The purpose of an advisement is to inform the defendant of a

particular right so that he or she can make an informed choice about whether to

waive that right. (See Barrett, supra, 54 Cal.4th at p. 1105 [―[A]bsent any

requirement of a personal waiver, the person facing commitment has no need for

an express court advisement of the right to request a jury trial.‖]; People v. Koontz

(2002) 27 Cal.4th 1041, 1070 [purpose of admonitions under Faretta v. California

(1973) 422 U.S. 806 is ―to ensure a clear record of a defendant‘s knowing and

voluntary waiver of counsel‖].) If the Legislature had intended to allow counsel to

waive a jury trial notwithstanding the defendant‘s wishes, it would not have

needed to require the trial court to expressly advise the defendant. As the Court of

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Appeal explained, the purpose of the mandatory advisement is ―to inform the

MDO of the right to a jury trial so that he or she can decide whether to waive it.‖

Third, we note that in various provisions other than those describing trial

procedures in sections 2966(b) and 2972(a), the MDO statute distinguishes

between ―the person,‖ ―the patient,‖ or ―the prisoner‖ and his or her attorney or

representative. (See §§ 2964, subd. (a) [when an MDO defendant returns to a

facility, a hearing must be held within 15 days ―unless the patient or the patient‘s

attorney agrees to a continuance‖], 2964, subd. (b) [―the prisoner or any person

appearing on his or her behalf‖ can request the appointment of psychological

professionals], 2966, subd. (a) [same], 2972.1, subd. (c)(1) [―both defense counsel

and the person on outpatient status shall sign and return to the court a form‖

concerning continued treatment], 2972.1, subd. (c)(2) [―If the person on outpatient

status refuses or is unable to sign the form, his or her counsel shall indicate, in

writing, that the form . . . [was] explained to the person and the person refused or

was unable to sign the form.‖].) Again, we presume the Legislature intended such

usage to have consistent meaning throughout the same statute. (See Dillon, supra,

34 Cal.3d at p. 468.)

The Court of Appeal contrasted Penal Code section 2972(a) with Welfare

and Institutions Code section 1801.5, which provides for a trial by jury in

proceedings to extend the commitment of a juvenile who is ―physically dangerous

to the public because of his or her mental or physical deficiency, disorder, or

abnormality which causes the person to have serious difficulty controlling his or

her dangerous behavior,‖ unless the right is ―personally waived.‖ (Italics added.)

The court concluded that, since the Legislature used the phrase ―personally

waived‖ in Welfare and Institutions Code section 1801.5, but not in section

2972(a), it must not have intended section 2972(a) to require a personal waiver.

But two considerations argue against an inference that the Legislature intended the

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waiver procedures for juvenile offenders to be different from those for adult

mentally disordered offenders.

First, the legislative history of Welfare and Institutions Code section 1801.5

suggests that the Legislature did not intend the language of personal waiver to be a

departure from the requirements in existing civil commitment statutes. The

original language of section 1801.5, enacted in 1971, provided for a right to a jury

trial but did not include any mention of personal waiver. (Stats. 1971, ch. 1680,

§ 1, p. 3606.) When the phrase ―personally waived‖ was added in 1998 (Stats.

1998, ch. 267, § 2, p. 1181), the legislative commentary noted: ―This bill‘s

provisions are modeled on, and are analogous to, procedures used for MDOs and

[sexually violent predators].‖ (Assem. Com. on Public Safety, Analysis of Sen.

Bill No. 2187 (1997–1998 Reg. Sess.) as amended Apr. 28, 1998, p. 7.) The

Legislature thus adopted the current scheme for committing dangerous juvenile

offenders on the understanding that its procedures were ―modeled‖ on those in the

MDO scheme. (Ibid.)

Second, to conclude that the Legislature intended mentally disordered

juvenile offenders, but not mentally disordered adult offenders, to control the

decision to waive a jury trial would raise serious equal protection concerns. (See

Barrett, supra, 54 Cal.4th at p. 1107 [―Because of the fundamental interests at

stake, equal protection principles are often invoked in civil commitment cases to

ensure that the statutory scheme applicable to a particular class of persons has not

treated them unfairly in comparison with other groups with similar

characteristics.‖].) Such differential treatment would be rather peculiar insofar as

it suggests that adult mentally disordered offenders are less capable of a voluntary

and intelligent waiver than similarly situated juvenile offenders. By construing the

waiver provision of section 2972(a) to mean the defendant controls the waiver

15

decision, we avoid this constitutional concern. (See People v. Gutierrez (2014) 58

Cal.4th 1354, 1373.)

2.

The considerations above suggest that the waiver decision belongs to the

defendant in the first instance. But that is not the end of the matter because we

must construe the waiver provision in light of the purpose of the MDO scheme.

By its terms, the MDO statute addresses the treatment and civil commitment of

offenders who suffer from a ―severe mental disorder.‖ (§ 2960.) ―The term

‗severe mental disorder‘ means an illness or disease or condition that substantially

impairs the person‘s thought, perception of reality, emotional process, or

judgment; or which grossly impairs behavior; or that demonstrates evidence of an

acute brain syndrome for which prompt remission, in the absence of treatment, is

unlikely.‖ (§ 2962, subd. (a)(2).) In light of this definition, we presume the

Legislature was aware that many MDO defendants lack the capacity to make a

knowing and voluntary waiver of their right to a jury trial, and we doubt the

Legislature intended to require courts to obtain a jury trial waiver from such

persons. Indeed, assigning that decision to a person who is unable to exercise it

competently would undermine the purpose of the advisement and waiver

provisions, for those provisions are intended to ensure that the person makes a

knowing and voluntary choice about whether to waive a jury trial. (See Pate v.

Robinson (1966) 383 U.S. 375, 384 [―it is contradictory to argue that a defendant

may be incompetent, and yet knowingly or intelligently ‗waive‘ his right[s]‖].)

Our cases have recognized that defendants whose competence has been

called into doubt necessarily exercise a lesser degree of control over proceedings

than defendants whose competence has not been called into doubt. In Masterson,

we held that the trial court did not err when it allowed counsel to waive the

requirement that the jury be composed of 12 members in a proceeding to

16

determine the defendant‘s competency to stand trial. (Masterson, supra, 8 Cal.4th

at p. 974.) We emphasized the ―respective roles of counsel and client in

competency hearings,‖ which are ― ‗held only after there has been a prima facie

showing of mental incompetence.‘ ‖ (Id. at p. 972.) ―[I]f counsel represents a

defendant as to whose competence the judge has declared a doubt sufficient to

require a section 1368 hearing, he should not be compelled to entrust key

decisions about fundamental matters to his client‘s apparently defective

judgment.‘ ‖ (Ibid.)

Similarly, we held in Barrett that the decision to waive a jury trial belongs

solely to counsel in commitment proceedings for persons alleged to be

developmentally disabled and dangerous. (Barrett, supra, 54 Cal.4th at p. 1105.)

We explained that ―[t]he significant cognitive and intellectual deficits that [severe

developmental disability] entails, which appear early in life and never recede,

affect the ability to ‗make basic decisions‘ regarding the conduct of the [Welfare

and Institutions Code] section 6500 proceeding. [Citation.] Such an individual

thus plays a limited ‗personal role‘ in the case, and must rely on counsel to decide

all tactical and procedural matters, such as whether to exercise the jury trial right.‖

(Id. at pp. 1103–1104.) We concluded that the lack of advisement and personal

waiver of the right to a jury trial in a Welfare and Institutions Code section 6500

proceeding does not violate due process of law. (Barrett, at p. 1105.)

The Attorney General contends that we can infer that nearly every

defendant in an MDO commitment extension proceeding lacks the capacity to

make a knowing and voluntary waiver from the preliminary showing required for

the district attorney to file an extension petition. (See § 2970 [extension petition

for an MDO defendant in a state hospital must be accompanied by a written

medical evaluation finding that the defendant suffers from a severe mental

disorder that ―is not in remission or cannot be kept in remission‖ without

17

treatment].) A similar inference led this court to conclude that counsel, in making

fundamental litigation decisions, may override the wishes of a criminal defendant

facing a competency hearing (Masterson, supra, 8 Cal.4th at p. 972) or a

developmentally disabled person facing a commitment proceeding (Barrett, supra,

54 Cal.4th at pp. 1104–1105). But the reasoning of those cases does not extend to

mentally disordered offenders.

Instead, we have observed that many persons who suffer from mental

illness or related disorders can understand the nature of legal proceedings and

determine their own best interests. In Barrett, we distinguished between

developmental disability and mental illness in this regard. We said developmental

disability involves ―cognitive and intellectual deficits‖ that ―appear early in life

and never recede‖ and ―affect the ability to ‗make basic decisions‘ regarding the

conduct of [a legal] proceeding.‖ (Barrett, supra, 54 Cal.4th at p. 1103.) By

contrast, ―[m]ental illness and related disorders are said to be conditions that may

arise suddenly and, for the first time, in adulthood.‖ (Id. at p. 1108.) ―[T]he need

for treatment may be temporary, and . . . disabling mental disorders may be

intermittent or short-lived.‖ (Ibid.) ―Where present, . . . ‗ ―mental illness ‗often

strikes only limited areas of functioning, leaving other areas unimpaired, and

consequently . . . many mentally ill persons retain the capacity to function in a

competent manner.‘ ‖ ‘ (In re Qawi (2004) 32 Cal.4th 1, 17, italics added . . . .)‖

(Barrett, at p. 1109.) Thus, the conditions that result from a mental illness or

related disorder, ―though they include imminent dangerousness, do not necessarily

imply incompetence or a reduced ability to understand, and make decisions about,

the conduct of the proceedings.‖ (Ibid.; see Conservatorship of John L. (2010) 48

Cal.4th 131, 154 [―it may not be presumed that . . . one who has been evaluated or

treated for a mental disorder [] is incompetent to waive [trial] rights‖]; Welf. &

Inst. Code, § 5331 [―No person may be presumed to be incompetent because he or

18

she has been evaluated or treated for mental disorder . . . , regardless of whether

such evaluation or treatment was voluntarily or involuntarily received.‖]; cf. In re

Qawi, supra, 32 Cal.4th at p. 24 [―Although an MDO must be determined to have

a ‗severe mental disorder,‘ commitment for a mental disorder does not by itself

mean that individuals are incompetent to participate in their own medical

decisions.‖].)

By definition, every mentally disordered offender has previously been

deemed competent to stand trial, and the premise of the MDO statute is that severe

mental disorders are ―treatable.‖ (§ 2960; see § 2972, subd. (f) [declaring

―affirmative obligation on the treatment facility to provide treatment‖].) Although

a petition for extended commitment must be supported by an evaluation finding

that the defendant‘s severe mental disorder ―is not in remission or cannot be kept

in remission without treatment‖ (§ 2970, subd. (a)), we have recognized that ―[t]he

‗cannot be kept in remission without treatment‘ standard can . . . be found when a

person ‗has not voluntarily followed the treatment plan‘ during the year prior to

the commitment or recommitment proceeding.‖ (In re Qawi, supra, 32 Cal.4th at

p. 24.) A defendant‘s compliance with treatment in advance of a commitment

extension hearing may alleviate or attenuate, at least for the duration of the

proceeding, any cognitive impairment associated with a particular mental disorder.

The potentially transitory and treatable nature of mental illness and the potentially

limited areas of functioning impaired by such illness preclude any categorical

inference that an MDO defendant facing a commitment extension proceeding

cannot competently decide whether to waive a jury trial.

We thus observe that the Legislature placed control of the decision to waive

a jury trial in ―the person‖ (§ 2972(a)), even as we infer that the Legislature did

not intend the decision to be made by a defendant who lacks the capacity to make

a knowing and voluntary waiver. In reconciling these objectives, a trial court need

19

not conduct a full-blown competency hearing. The statute does not expressly

provide for such a hearing, and we are mindful of ―the ‗ ―administrative burdens‖ ‘

and ‗practical difficulties‘ of demanding new procedures.‖ (Barrett, supra, 54

Cal.4th at p. 1106.) In Masterson, we found it dispositive that ― ‗[a] section 1368

hearing is held only after there has been a prima facie showing of mental

incompetence‘ ‖ and that ―the court . . . declared a doubt as to defendant‘s

competence‖ based on such a showing. (Masterson, supra, 8 Cal.4th at pp. 972,

974.) We adopt a similar approach here: In a section 2972(a) commitment

extension hearing, the decision to waive a jury trial belongs to the defendant in the

first instance, and the trial court must elicit the waiver decision from the defendant

on the record in a court proceeding. But if the trial court finds substantial

evidence that the defendant lacks the capacity to make a knowing and voluntary

waiver, then control of the waiver decision belongs to counsel, and the defendant

may not override counsel‘s decision. In this context, evidence is substantial when

it raises a reasonable doubt about the defendant‘s capacity to make a knowing and

voluntary waiver, and the trial court‘s finding of a reasonable doubt must appear

on the record. (Cf. People v. Lawley (2002) 27 Cal.4th 102, 131; Masterson, at

p. 974.)

In this case, Blackburn did not personally waive his right to a jury trial.

Nor, as the Court of Appeal observed, does the record ―establish that during the

pretrial period defendant was so affected by his mental disease as to raise doubt

about his capacity‖ to make a knowing and voluntary waiver. Accordingly, we

conclude that the trial court erred in accepting counsel‘s waiver and holding a

bench trial.

The Court of Appeal held that section 2972(a) does not require the trial

court to obtain a personal waiver from the defendant. Rather, waiver by counsel

must be ―at the MDO‘s direction or with the MDO‘s knowledge and consent‖

20

unless ―the circumstances cast reasonable doubt on the MDO‘s mental capacity to

determine what is in his or her best interests.‖ The Court of Appeal declined to

find error in this case, explaining that because counsel waived Blackburn‘s

presence at every pretrial hearing, the trial court could ―reasonably expect counsel

to discuss all pertinent matters that will arise or that have arisen in pretrial

hearings, including the right to a jury trial and whether to have one.‖ The Court of

Appeal added that ―this was not the first extension of defendant‘s MDO

commitment, and the record does not suggest that defendant was unaware of his

right to a jury trial notwithstanding the lack of a judicial advisement. Nor does the

record suggest that defendant was unaware that counsel intended to waive a jury

and had done so or that defendant wanted a jury trial and objected (or would have

objected) to counsel‘s waiver.‖

Unlike the Court of Appeal and our concurring and dissenting colleague

(conc. & dis. opn., post, at pp. 2, 6–8), we decline to infer from these

circumstances that Blackburn knowingly and voluntarily waived his right to a jury

trial. To presume Blackburn‘s knowing and voluntary waiver, as the Court of

Appeal did, would defeat the point of section 2972(a)‘s advisement and waiver

provisions. By providing a right to counsel for MDO defendants facing extended

commitment, the Legislature enacted section 2972(a) on the understanding that

most defendants would be represented by counsel. If counsel could waive a jury

trial based on the defendant‘s presumed consent when the record does not

expressly indicate the defendant‘s wishes, and even when the defendant is not

present when the waiver occurs, then the Legislature would have had no need to

require the trial court to advise ―the person‖ of his or her right to a jury trial or to

obtain a waiver from ―the person.‖ (§ 2972(a).) Instead, counsel would be

authorized to make the waiver decision, and the onus would be on the defendant to

prove lack of consent. But that is not the scheme the Legislature enacted. Section

21

2972(a) makes clear that ―[t]he trial shall be by jury unless waived by both the

person and the district attorney.‖ (Italics added.) The statute does not require the

defendant to affirmatively show he or she wanted a jury trial; a jury trial is the

default procedure absent a personal waiver. In sum, the trial court must elicit the

waiver decision from the defendant in a court proceeding unless it finds substantial

evidence of incompetence, in which case counsel controls the waiver decision.

3.

Our holding today is consistent with the result, if not the reasoning, of

People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), which upheld the trial court‘s

acceptance of counsel‘s jury trial waiver over the objection of an MDO defendant.

The defendant in that case showed signs of cognitive impairment at the

commitment hearing: ―Otis . . . told the court that invisible police had been

sexually assaulting him and were sexually assaulting him as he spoke to the court.

The court stated for the record that Otis was not being assaulted in court.‖ (Id. at

pp. 1175–1176.) The trial court‘s direct observation of Otis provided ample basis

to doubt that he was capable of making a knowing and voluntary waiver decision.

(Id. at p. 1177.)

We agree with Otis that ―[t]he Legislature must have contemplated that

many persons, such as Otis, might not be sufficiently competent to determine their

own best interests. There is no reason to believe the Legislature intended to leave

the decision on whether trial should be before the court or a jury in the hands of

such a person.‖ (Otis, supra, 70 Cal.App.4th at p. 1177.) However, we

disapprove Otis, supra, 70 Cal.App.4th 1174, and Montoya, supra, 86 Cal.App.4th

825, to the extent they hold that control of the waiver decision in an MDO

commitment hearing invariably belongs to counsel. That conclusion sweeps too

broadly in light of the Legislature‘s focus on ―the person‖ in section 2972(a)‘s

advisement and waiver provisions as well as the potentially transitory, treatable,

22

and variable nature of cognitive impairments that may afflict mentally disordered

offenders.

IV.

Having found that the trial court erred in accepting counsel‘s waiver of

Blackburn‘s right to a jury trial, we now consider the appropriate remedy.

When ―state standards alone have been violated, the State is free . . . to

apply its own state harmless-error rule to such errors of state law.‖ (Cooper v.

California (1967) 386 U.S. 58, 62.) California‘s harmless error rule is set forth in

article VI, section 13 of our state Constitution. In People v. Watson (1956) 46

Cal.2d 818 (Watson), we made clear that a defendant who has established state-

law error must typically demonstrate that ―it is reasonably probable that a result

more favorable to [the defendant] would have been reached in the absence of the

error.‖ (Id. at p. 836.) ―As we have explained, however, ‗under the California

constitutional harmless-error provision some errors . . . are not susceptible to the

―ordinary‖ or ―generally applicable‖ harmless-error analysis — i.e., the Watson

―reasonably probable‖ standard — and may require reversal of the judgment

notwithstanding the strength of the evidence contained in the record in a particular

case.‘ ‖ (People v. Lightsey (2012) 54 Cal.4th 668, 699 (Lightsey).)

The latter rule is consistent with the language of article VI, section 13,

whose phrase ―miscarriage of justice‖ encompasses not only errors affecting the

outcome of the case, but also certain procedural errors that may or may not have

affected the outcome. As this court explained in People v. O’Bryan (1913) 165

Cal. 55 (O’Bryan) two years after our state harmless error rule was adopted:

―When we speak of administering ‗justice‘ in criminal cases, under the English or

American system of procedure, we mean something more than merely ascertaining

whether an accused is or is not guilty. It is an essential part of justice that the

question of guilt or innocence shall be determined by an orderly legal procedure,

23

in which the substantial rights belonging to defendants shall be respected. For

example, if a court should undertake to deny to a defendant charged with a felony

the right of trial by jury, and after a hearing of the evidence render a judgment of

conviction, it cannot be doubted that such judgment should be set aside even

though there had been the clearest proof of guilt.‖ (Id. at pp. 65–66.)

We have not previously determined the correct approach to review when a

trial court fails to obtain a valid jury trial waiver from an MDO defendant and

thereby denies the defendant his or her statutory right to a jury trial on the entire

cause in a civil commitment proceeding. As explained below, we hold that the

erroneous denial of a jury trial in this context is a ―miscarriage of justice‖ within

the meaning of article VI, section 13 and requires reversal without inquiry into the

strength of the evidence in a particular case.

This court and the high court have applied harmless error analysis to a wide

range of errors and have recognized that most errors can be harmless. (See Allen,

supra, 44 Cal.4th at p. 872; Arizona v. Fulminante (1991) 499 U.S. 279, 306

(Fulminante).) But we have explained that certain errors, which operate to deny a

defendant an ― ‗orderly legal procedure‘ ‖ (People v. Cahill (1993) 5 Cal.4th 478,

501 (Cahill)), can entail a ―miscarriage of justice‖ under article VI, section 13. In

Lightsey, we held that a trial court‘s failure to appoint counsel to represent a

defendant during a mental competency proceeding, in violation of section 1368,

was automatically reversible because it was ― ‗analogous to‘ ‖ the ― ‗total

deprivation of the right to counsel at trial.‘ ([Fulminante, supra, 499 U.S. at

p. 309].)‖ (Lightsey, supra, 54 Cal.4th at p. 699.) We observed that the defendant

―was completely deprived of the assistance of counsel at a critical stage of the trial

proceedings in violation of section 1368. As with a pervasive Sixth Amendment

violation, the statutory violation here cannot be likened to ‗trial error‘ . . . . We

cannot simply excise some item of evidence in order to ‗make an intelligent

24

judgment‘ [citation] about whether the competency determination might have been

affected by the absence of counsel to represent defendant. . . . Attempting to

assess the effect of the absence of counsel on the trial court‘s finding of

competence is, in truth, no different than attempting to assess the effect on a jury‘s

final verdict of the absence of counsel during a trial on substantive charges: there

is no reasoned manner in which to do so because the lack of true adversarial

testing denied defendant the basic procedure by which his competence should

have been determined.‖ (Id. at p. 701.) We thus concluded that the denial of the

defendant‘s right to counsel under section 1368 automatically required reversal.

(Lightsey, at pp. 699, 702.)

If the case now before us were a criminal matter involving the invalid

waiver of a state or federal constitutional jury trial right, there could be no doubt

that the error would constitute a ―miscarriage of justice‖ requiring reversal without

regard to the strength of the evidence. Under settled law, ―a judgment in a

criminal case resulting from a court trial must be reversed if the defendant did not

expressly waive the right to a trial by jury.‖ (People v. Ernst (1994) 8 Cal.4th 441,

443 (Ernst).) In Ernst, we held that the trial court erroneously deprived the

defendant of a jury trial where the defendant himself never expressly waived the

right, even though counsel stated that the defendant was prepared to waive the

right and, at a subsequent proceeding, indicated that the right had been waived.

(Id. at p. 446.) We observed that absent an express waiver by a defendant, trial to

a court deprives the defendant of a jury trial, and reversal is required. (Id. at

p. 448.) Similarly, in People v. Collins (2001) 26 Cal.4th 297 (Collins), we held

that the defendant‘s jury trial waiver was invalid because the trial court had

obtained the waiver by assuring the defendant of an unspecified benefit. (Id. at

p. 312.) We then explained that ―a harmless error standard does not, and cannot,

apply‖ because ―the right to a jury trial is fundamental, and its denial . . . result[s]

25

in a ‗miscarriage of justice‘ within the meaning of California Constitution, article

VI, section 13, and requir[es] that the judgment of conviction be set aside.‖ (Id. at

p. 311.)

The failure to obtain a valid jury trial waiver defies ordinary harmless-error

analysis. 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. As we said in Collins, ―where

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 the absence of the

error.‖ (Collins, supra, 26 Cal.4th at p. 313.) Accordingly, we treat a trial court‘s

failure to obtain a required personal jury trial waiver as tantamount to the denial of

a jury trial, and as such, it constitutes a ―miscarriage of justice‖ under article VI,

section 13. (See People v. Breverman (1998) 19 Cal.4th 142, 174 (Breverman)

[―In rare instances involving ‗fundamental ―structural defects‖ ‘ [citation] in a

criminal proceeding (for example, the complete denial of the right to a jury, or to

an impartial judge), it may be impossible, or beside the point, to evaluate the

resulting harm by resort to the trial record, and a miscarriage of justice may arise

regardless of the evidence.‖]; Cahill, supra, 5 Cal.4th at p. 491 [―in some contexts

— for example, the erroneous denial of a defendant‘s right to jury trial — an error

may result in a miscarriage of justice, and require reversal, regardless of the

strength of the evidence properly received at trial‖].)

Although we have not held that mentally disordered offenders have a state

or federal constitutional right to a jury trial in commitment extension proceedings,

this court and the high court have long recognized that such proceedings threaten

the possibility of lasting stigma and a significant deprivation of liberty. (Ante, at

p. 5.) In enacting section 2972, the Legislature was cognizant of these

26

consequences and sought to afford defendants in MDO commitment proceedings

various procedural protections to which criminal defendants are entitled, including

the right to a jury trial, the right to a unanimous jury verdict, and the right to be

committed by proof beyond a reasonable doubt. (Ante, at pp. 6–7.) Accordingly,

the MDO commitment scheme is best understood as ―a civil hearing with criminal

procedural protections‖ (Montoya, supra, 86 Cal.App.4th at p. 830), and we find it

significant for purposes of determining the applicability of harmless error analysis

that the Legislature set forth protections in section 2972 that are borrowed directly

from the criminal context. In an MDO commitment proceeding, as in a criminal

trial, the ―jury guarantee‖ is a basic protection ―whose precise effects are

unmeasurable‖ and whose denial ―def[ies] analysis by ‗harmless-error‘ standards.‖

(Sullivan v. Louisiana (1993) 508 U.S. 275, 281.) Accordingly, the total

deprivation of a jury trial without a valid waiver in an MDO commitment

proceeding requires automatic reversal.

In urging the applicability of Watson‘s harmless error test, the Attorney

General relies on People v. Epps (2001) 25 Cal.4th 19 (Epps). In Epps, after a

jury found the defendant guilty of various offenses, the trial court dismissed the

jury and, in a bench trial, found true several prior conviction allegations. (Id. at

p. 22.) We held that the trial court erred under section 1025 in denying the

defendant a jury trial on the prior conviction allegations. (Epps, at pp. 23–28.)

We then observed: ―When a state need not provide a jury trial at all, it follows

that the erroneous denial of that right does not implicate the federal Constitution.

[Citations.] Moreover, because the error is purely one of state law, the Watson

harmless error test applies. (See, e.g., People v. Breverman (1998) 19 Cal.4th 142,

172, 178; see also Cal. Const., art. VI, § 13.)‖ (Id. at p. 29.) We found the error

harmless because the evidence of the prior convictions was uncontradicted, but we

27

expressly reserved the question whether ―we would find harmless error in a case

involving contested factual questions.‖ (Id. at p. 30.)

The Attorney General reads Epps to hold that the Watson harmless error

standard is the sole test for determining whether a purely state law error warrants

reversal under article VI, section 13. But Epps‘s brief treatment of harmless error

did not discuss or purport to abrogate our settled law distinguishing between errors

that are and are not automatically reversible under article VI, section 13. (See

People v. Anzalone (2013) 56 Cal.4th 545, 553; Lightsey, supra, 54 Cal.4th at

p. 699.) Instead, Epps cited Breverman, which itself recognized that some errors

of state law require automatic reversal and mentioned the complete denial of a jury

trial in a criminal case as an example. (Breverman, supra, 19 Cal.4th at p. 174.)

Epps and Breverman, along with People v. Wims (1995) 10 Cal.4th 293

(Wims), applied Watson‘s harmless error standard to the erroneous denial of a jury

determination of certain limited matters in a criminal jury trial. In Breverman, the

trial court‘s jury instructions erroneously omitted instructions on a heat of passion

theory of the lesser included offense of voluntary manslaughter. (Breverman,

supra, 19 Cal.4th at pp. 153–162.) We said ―the failure to instruct sua sponte on a

lesser included offense in a noncapital case is, at most, an error of California law

alone‖ and, citing Wims, held that such misinstruction is ―subject . . . to the

Watson harmless error test.‖ (Breverman, at pp. 165, 171.) In Wims, the trial

court violated the defendant‘s statutory right to a jury determination on allegations

of use of a deadly and dangerous weapon when it failed to instruct the jury on the

factual elements the prosecution was required to prove. (Wims, at pp. 302–303.)

We observed that the Watson test ―is ‗generally applicable under current

California law‘ ‖ and, upon reviewing the evidence, concluded it was not

reasonably probable that the jury would have found the weapon use allegation

untrue. (Wims, at p. 315.)

28

Whereas Wims, Breverman, and Epps each applied the Watson test to the

erroneous denial of a jury determination of certain limited matters in a criminal

jury trial, the issue before us involves a trial court‘s acceptance of an invalid

waiver that completely deprives an MDO defendant of his or her right to a jury

trial under section 2972(a). As in Lightsey, the error here is one ― ‗affecting the

framework within which the trial proceeds, rather than simply an error in the trial

process itself.‘ ‖ (Lightsey, supra, 54 Cal.4th at p. 700.) Such error denies the

defendant ―the basic procedure by which‖ the validity of his or her commitment

―should have been determined‖ under a statutory scheme whose protections are

borrowed directly from the criminal context. (Id. at p. 701.) We therefore

conclude that when a trial court errs in completely denying an MDO defendant the

right to a jury trial under section 2972(a), the error requires automatic reversal.

We disapprove People v. Wrentmore (2011) 196 Cal.App.4th 921, 928–929, and

People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1275–1276, to the extent they

are inconsistent with this opinion.

The concept of harmless error does have applicability in this context in the

following limited sense. A trial court‘s acceptance of counsel‘s waiver without an

explicit finding of substantial evidence that the defendant lacked the capacity to

make a knowing and voluntary waiver may be deemed harmless if the record

affirmatively shows that there was substantial evidence that the defendant lacked

that capacity at the time of counsel‘s waiver. (See, e.g., ante, at p. 22 [discussing

Otis].) In addition, a trial court‘s failure to properly advise an MDO defendant of

the right to a jury trial does not by itself warrant automatic reversal. Instead, 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. (Cf. People v. Howard (1992) 1 Cal.4th 1132, 1178; Barrett, supra, 54

29

Cal.4th at p. 1114 (conc. & dis. opn. of Werdegar, J.) [finding advisement error

harmless]; id. at pp. 1151–1152 (conc. & dis. opn. of Liu, J.) [same].) In both

scenarios, the requirement of an affirmative showing means that no valid waiver

may be presumed from a silent record. (Ante, at pp. 21–22.) Ultimately, we

emphasize that the most certain means of ensuring a valid waiver is careful

compliance with the express advisement and waiver process explained in this

opinion.

V.

As noted, our decision today rejects the rule previously set forth in Otis,

supra, 70 Cal.App.4th 1174, and Montoya, supra, 86 Cal.App.4th 825, that

counsel invariably controls the decision to waive a jury trial in an MDO

commitment proceeding. In this case, the trial court and the parties may have

reasonably relied on that prior law in proceeding with a bench trial without

making a record of Blackburn‘s personal waiver or his inability to make a

knowing and voluntary waiver. Accordingly, we remand this case to the Court of

Appeal with directions to remand to the trial court so that the district attorney may

submit evidence, if any, that Blackburn personally made a knowing and voluntary

waiver or that he lacked the capacity to make a knowing and voluntary waiver at

the time of counsel‘s waiver. If the trial court finds by a preponderance of the

evidence that Blackburn made a knowing and voluntary waiver, or if it finds

substantial evidence that he lacked that capacity at the time of counsel‘s waiver,

then the court shall reinstate the extension order. This approach applies to all

cases presently on direct appeal where the record does not reveal whether an MDO

defendant personally waived his or her right to a jury trial or whether there was

substantial evidence that the defendant lacked the capacity to make a knowing and

voluntary waiver at the time of counsel‘s waiver.

30

CONCLUSION

For the reasons above, we reverse the judgment of the Court of Appeal

upholding the extension order and remand for proceedings not inconsistent with

this opinion.

LIU, J.

WE CONCUR:

WERDEGAR, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

31

CONCURRING OPINION BY LIU, J.

The court holds that when a trial court errs in completely denying a

mentally disordered offender (MDO) the right to a jury trial under Penal Code

section 2972, subdivision (a), the error requires automatic reversal. (Maj. opn.,

ante, p. 29.) In a companion case filed today, we adopt the same reversal rule

when a trial court errs in denying a defendant found not guilty by reason of

insanity (NGI) the right to a jury trial under Penal Code section 1026.5,

subdivision (b). (People v. Tran (Aug. 17, 2015, S211329) __ Cal.4th __, __ [at

p. 2] (Tran).)

The Chief Justice dissents from these holdings, observing that ―as a general

matter‖ article VI, section 13 of the California Constitution (section 13) as

interpreted in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) authorizes

reversal of a judgment only upon a finding of prejudice. (Conc. & dis. opn., post,

at p. 5; see Tran, supra, __ Cal.4th at p. __ [slip opn. at p. 4] (conc. & dis. opn. of

Cantil-Sakauye, C.J.).) Of course, the qualifier is all-important here. The court‘s

opinions today do not dispute that the Watson standard applies as a general

matter; they instead conclude that the erroneous denial of a jury trial in an MDO

or NGI commitment extension proceeding falls outside the general rule. To

provide further context for today‘s opinions, and because the applicability of

harmless error doctrine is a recurring issue in appellate adjudication, I briefly

review the text, history, and purpose of section 13.

1

Section 13 says: ―No judgment shall be set aside, or new trial granted, in

any cause, on the ground of misdirection of the jury, or of the improper admission

or rejection of evidence, or for any error as to any matter of pleading, or for any

error as to any matter of procedure, unless, after an examination of the entire

cause, including the evidence, the court shall be of the opinion that the error

complained of has resulted in a miscarriage of justice.‖ The text does not say an

appellate court may reverse a judgment only when an error affected the outcome.

Instead, the text says a judgment may not be reversed unless an error resulted in a

―miscarriage of justice.‖ (§ 13.) To the extent that the conception of justice

embodied in our state Constitution encompasses concerns beyond the outcomes of

cases, section 13 contemplates that some errors are reversible on grounds other

than their likely effect on the outcome of a particular case.

The legislative history of section 13 confirms the meaning that the text

implies. Section 13 was adopted in 1966 as part of a general reorganization of the

California Constitution. It derives from former article VI, section 4 1/2 (former

section 4 1/2), which was added to the California Constitution in 1911 when the

voters approved Senate Constitutional Amendment No. 26. Before the addition of

former section 4 1/2, appellate courts had restricted their role to reviewing pure

questions of law. They did not review the facts underlying judgments to

determine whether they supported a conviction in spite of an error at trial. (Voter

Information Guide, Special Elec. (Oct. 10, 1911) argument in favor of Sen. Const.

Amend. No. 26, p. 12 (1911 Voter Information Guide).) Consequently, most trial

errors were reviewed under the functional equivalent of an automatic reversal rule.

The addition of former section 4 1/2 to the California Constitution changed the

role of appellate courts by requiring review of ―the entire cause including the

evidence‖ and permitting reversal only after finding a ―miscarriage of justice.‖

2

In the 1911 Voter Information Guide, the proposed amendment‘s sponsor,

Senator Boynton, said: ―The object of this amendment is to enable our courts of

last resort to sustain verdicts in criminal cases unless there has been a miscarriage

of justice, or, putting it in another way, its purpose is to render it unnecessary for

the higher courts to grant the defendant in a criminal case a new trial for

unimportant errors. It is designed to meet the ground of common complaint that

criminals escape justice through technicalities.‖ (1911 Voter Information Guide,

supra, argument in favor of Sen. Const. Amend. No. 26, p. 11.) Senator Boynton

then provided the following examples of the ―absurd lengths‖ to which courts had

gone in reversing ―immaterial errors‖: ―In Missouri a case was reversed and the

prisoner escaped conviction because the indictment alleged the deceased ‗instantly

died‘ instead of charging according to the ancient formula that he ‗did then and

there die.‘ In a Texas case the elimination of the letter ‗r‘ from the word ‗first‘

saved a murderer from the gallows, when his guilt was absolutely determined. In

our own state a conviction for murder was set aside because the indictment failed

to state that the man killed was a human being.‖ (Id. at p. 12.) These comments,

which were provided to the voters before they ratified the proposed amendment,

suggest that the enactment of former section 4 1/2 was directed at trivial errors and

was not meant or understood to provide that only an error affecting the outcome of

a trial would qualify as a miscarriage of justice.

Shortly after the enactment of former section 4 1/2, our decision in People

v. O’Bryan (1913) 165 Cal. 55 (O’Bryan) explained how it had altered the

California Constitution. O’Bryan concluded that the trial court had violated the

defendant‘s state constitutional right not to be compelled to be a witness against

himself. We then considered whether the conviction should be reversed, noting

that ―[t]his question must be answered with due regard to the terms of section

4 1/2 of article VI, added to the constitution by amendment adopted in 1911.‖ (Id.

3

at p. 63.) After explaining the legal background against which the voters adopted

former section 4 1/2, we said that former section 4 1/2 ―must be given at least the

effect of abrogating the old rule that prejudice is presumed from any error of law.‖

(Id. at p. 65.)

Importantly, we continued: ―When we speak of administering ‗justice‘ in

criminal cases, under the English or American system of procedure, we mean

something more than merely ascertaining whether an accused is or is not guilty. It

is an essential part of justice that the question of guilt or innocence shall be

determined by an orderly legal procedure, in which the substantial rights

belonging to defendants shall be respected. For example, if a court should

undertake to deny to a defendant charged with a felony the right of trial by jury,

and after a hearing of the evidence render a judgment of conviction, it cannot be

doubted that such judgment should be set aside even though there had been the

clearest proof of guilt. . . . [I]t would hardly be suggested that because he was in

fact guilty, no ‗miscarriage of justice‘ had occurred.‖ (O’Bryan, supra, 165 Cal. at

pp. 65–66.) As O’Bryan makes clear, the contemporaneous understanding of

former section 4 1/2 was that certain types of error would result in a miscarriage of

justice even when the evidence convincingly established the reliability of the

outcome of the case. And one example of such error was the complete denial of a

jury trial on a felony charge.

In 1914, the voters approved Senate Constitutional Amendment No. 12,

which amended former section 4 1/2 by extending the ―miscarriage of justice‖

standard to civil cases. The amendment did not call into question our construction

of that provision in O’Bryan. Indeed, as with Senate Constitutional Amendment

No. 26, the sponsor of the 1914 amendment, Senator Boynton, explained that it ―is

designed to prevent the reversal of civil cases by courts of appeal on purely

technical grounds. [¶] . . . . [¶] . . . In scores of cases appellate judges have

4

reluctantly set aside meritorious decisions on no other grounds than that during a

long and heated trial, counsel for the successful party committed some technical

breach of legal procedure.‖ (Voter Information Guide, Gen. Elec. (Nov. 3, 1914)

arguments in favor of Sen. Const. Amend. No. 12, p. 4.)

Our case law has consistently treated O’Bryan as the seminal authority on

the meaning of former section 4 1/2. (See, e.g., People v. Collins (1976) 17 Cal.3d

687, 697–698, fn. 5; People v. Sarazzawski (1945) 27 Cal.2d 7, 11; Vallejo etc.

R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 553–554; People v. Fleming

(1913) 166 Cal. 357, 381.) Most notable is our discussion of O’Bryan in our

frequently cited Watson decision. In that case, the defendant wore his Army

uniform during trial. During cross-examination of the defendant, the prosecution

pursued a line of questioning intended to show that he had taken gymnasium

classes to ―stretch his height beyond the 6 feet 6 inch limit fixed by the Army

. . . so he could be discharged from further Army service.‖ (Watson, supra, 46

Cal.2d at p. 833.) The prosecution argued that the defendant was wearing his

Army uniform in court to gain sympathy and respect for his patriotic service, and

the inquiry would serve to rebut this effect. We held that the trial court erred by

improperly overruling an objection to the prosecution‘s line of questioning. (Id. at

pp. 833–834.)

We then addressed whether the error constituted a ―miscarriage of justice‖

under former section 4 1/2. Summarizing O’Bryan, we said that ―generally‖ a

showing of prejudice is required for reversal and that ―ordinarily where the result

appears just, and it further appears that such result would have been reached if the

error had not been committed, a reversal will not be ordered.‖ (Watson, supra, 46

Cal.2d at p. 835, italics added.) At the same time, we said that ―certain

fundamental rights, however, are guaranteed to the defendant upon which he can

insist regardless of the state of the evidence, such as the right to a jury trial,‖ and

5

that ―the distinction between reversible and nonreversible error does not rest upon

the distinction between error relating to constitutional rights as contrasted with

other rights, but that the section applies to both.‖ (Ibid.)

Regarding the category of errors that do not automatically establish a

miscarriage of justice, we explained that our previous opinions had used various

formulations to articulate the meaning of ― ‗miscarriage of justice.‘ ‖ (Watson,

supra, 46 Cal.2d at pp. 835–836.) Surveying these various formulations, we

concluded that ―the test generally applicable may be stated as follows: That a

‗miscarriage of justice‘ should be declared only when the court, ‗after an

examination of the entire cause, including the evidence,‘ is of the ‗opinion‘ that it

is reasonably probable that a result more favorable to the appealing party would

have been reached in the absence of the error.‖ (Id. at p. 836, italics added.) In

sum, while stating the prejudice standard that applies to errors subject to harmless

error analysis, Watson recognized that not all errors are subject to the harmless

error test it articulated and that some errors may automatically constitute

miscarriages of justice ―regardless of the state of the evidence.‖ (Id. at p. 835.)

In People v. Cahill (1993) 5 Cal.4th 478, we reiterated O’Bryan‘s

construction of the miscarriage of justice standard: ―[A]lthough, as a general rule,

the determination whether an error has resulted in a ‗miscarriage of justice‘ within

the meaning of the constitutional provision will depend upon an appellate court‘s

evaluation of the effect of the error in light of the evidence at trial, in some

contexts — for example, the erroneous denial of a defendant‘s right to jury trial —

an error may result in a miscarriage of justice, and require reversal, regardless of

the strength of the evidence properly received at trial.‖ (Id. at p. 491.) We made

similar statements in People v. Ernst (1994) 8 Cal.4th 441, 448, and People v.

Breverman (1998) 19 Cal.4th 142, 174. (See maj. opn., ante, at pp. 25–26.)

6

In People v. Collins (2001) 26 Cal.4th 297, the trial court ―found defendant

guilty of three counts of forcible and five counts of nonforcible lewd or lascivious

acts upon a child under the age of 14 years. [Citation.] The trial court found true

the allegations that defendant committed three of the acts by force or fear and that

two of the acts involved substantial sexual conduct [citations], and that defendant

had served a prior prison term [citation].‖ (Id. at p. 303.) We held that the

defendant‘s jury trial waiver was invalid because the trial court had obtained the

waiver by assuring the defendant of an unspecified benefit. (Id. at p. 312.) The

Attorney General argued that we should review the case for harmless error (id. at

p. 311), but we unanimously rejected that argument. As the court explained, ―a

harmless error standard does not, and cannot, apply in the present case. Under the

federal Constitution, the right to trial by jury is recognized as fundamental, and its

denial is ‗structural error,‘ compelling reversal of a judgment of conviction

without the necessity of a determination of prejudice. [Citations.] Similarly,

under the California Constitution, the right to jury trial is fundamental, and its

denial is considered a ‗structural defect in the proceedings,‘ resulting in a

‗miscarriage of justice‘ within the meaning of California Constitution, article VI,

section 13, and requiring that the judgment of conviction be set aside.‖ (Ibid.; see

id. at p. 314 (conc. opn. of Brown, J.).)

Finally, and most recently, our unanimous opinion in People v. Lightsey

(2012) 54 Cal.4th 668 observed: ―Typically, a defendant who has established

error under state law must demonstrate there is a reasonable probability that in the

absence of the error he or she would have obtained a more favorable result.

[Citations.] As we have explained, however, ‗under the California constitutional

harmless-error provision some errors . . . are not susceptible to the ―ordinary‖ or

―generally applicable‖ harmless-error analysis — i.e., the Watson ―reasonably

probable‖ standard — and may require reversal of the judgment notwithstanding

7

the strength of the evidence contained in the record in a particular case.‘ ‖ (Id. at

p. 699.) In Lightsey, we held that the trial court violated Penal Code section 1368

by allowing the defendant to represent himself in a competency proceeding, and

we went on to conclude that the error automatically constituted a miscarriage of

justice. (Lightsey, at p. 702.)

As this discussion makes clear, our statement in Watson of the harmless

error standard routinely applied by California appellate courts does not articulate

the full meaning of section 13, nor did it purport to do so. As Watson itself and

our cases before and after Watson have recognized, section 13 has always meant

that certain errors automatically constitute miscarriages of justice and require

reversal. The reason was best stated in O’Bryan, which I quote again: ―When we

speak of administering ‗justice‘ in criminal cases, under the English or American

system of procedure, we mean something more than merely ascertaining whether

an accused is or is not guilty. It is an essential part of justice that the question of

guilt or innocence shall be determined by an orderly legal procedure, in which the

substantial rights belonging to defendants shall be respected.‖ (O’Bryan, supra,

165 Cal. at p. 65.)

Our Legislature has determined that before the state may confine a

defendant involuntarily, it must give him or her an adequate measure of procedural

justice. ―The right to trial by jury reflects . . . ‗a profound judgment about the way

in which law should be enforced and justice administered‘ ‖ (Sullivan v. Louisiana

(1993) 508 U.S. 275, 281), and that right must be observed ―even though there had

been the clearest proof‖ (O’Bryan, supra, 165 Cal. at p. 66) that the defendant

requires continued treatment. Today‘s holdings requiring reversal when a trial

court errs in completely denying an MDO or NGI defendant the right to a jury trial

8

follow from the text, history, and purpose of section 13 as well as this court‘s

consistent and longstanding interpretation of that provision.

LIU, J.

WE CONCUR:

WERDEGAR, J.

CUÉLLAR, J.

KRUGER, J.

9

CONCURRING AND DISSENTING OPINION

BY CANTIL-SAKAUYE, C. J.

I concur in the statutory interpretation in parts I through III of the majority

opinion. But I respectfully dissent from the remainder of the opinion concerning

the standard of harmless error review applicable to the state law errors that

occurred in this case and the proper application of that standard. Unlike the

federal Constitution, which contains no provision addressing the subject of

harmless error in a judicial proceeding, the California Constitution contains an

explicit provision directed to that subject, providing that ―[n]o judgment shall be

set aside . . . for any error as to any matter of procedure, unless, after an

examination of the entire cause, including the evidence, the court shall be of the

opinion that the error complained of has resulted in a miscarriage of justice.‖ (Cal.

Const., art. VI, § 13 (hereafter article VI, section 13).) Notwithstanding this

explicit state constitutional provision generally eschewing the application of an

automatic or reversible per se harmless error standard to state law error, today‘s

opinion, for the first time, holds that an automatic reversal rule should apply to the

trial court‘s failure to advise a defendant in a mentally disordered offender (MDO)

commitment extension proceeding of the statutory right to a jury trial and to obtain

the defendant‘s personal waiver of a jury trial. It does so on the theory that such

errors always constitute ―a miscarriage of justice‖ because the errors assertedly

totally denied defendant the right to a jury trial. (Maj. opn., ante, at pp. 24-27.)

1

Contrary to the claim of the majority, however, we have no occasion in this

case to decide whether the total denial of the statutory right to a jury trial in an

MDO proceeding automatically constitutes a ―miscarriage of justice‖ within the

meaning of article VI, section 13. Whether or not the total denial of the right to a

jury trial in such a proceeding invariably constitutes a miscarriage of justice,

describing the errors in this case as the total denial of a jury trial is inaccurate and

gives a misleading impression regarding the nature and severity of the actual

errors at issue here. This matter is a civil commitment proceeding, not a criminal

prosecution, and this is not a case in which a defendant who expressed a wish to

be tried by a jury was wrongfully denied that request and was required to face trial

by the court. Nor is it a case in which an unrepresented defendant, unaware of the

right to be tried by a jury, was left in the dark and subjected to a court trial while

ignorant of his or her jury trial right. Instead, this is a case in which defendant was

represented by counsel, who, undoubtedly with full knowledge of his client‘s right

to be tried by a jury, intentionally requested that the matter be heard by the court

rather than a jury. The defect here was not in wrongfully depriving defendant of

the right to a jury trial in an MDO commitment extension proceeding, but rather

the much less serious mistakes of failing to advise defendant personally of the

statutory right to a jury trial and to obtain an on-the-record waiver of that right

from defendant personally rather than from defendant‘s counsel.

I agree with the majority that the trial court erred in these respects.

However, these failures are of an entirely different, and less serious, magnitude

than a wholesale deprivation of the right to a jury trial in a criminal trial or in an

MDO commitment extension proceeding; they are not properly viewed as

inevitably giving rise to a ―miscarriage of justice‖ (art. VI, § 13) that calls for

automatic reversal of a judgment without regard to the actual effect of the error on

the fairness of the proceeding or the outcome of the case. Contrary to the

2

majority‘s claim, these are not the types of errors whose prejudicial effect defies

detection or measurement. Instead, when a defendant‘s counsel has concluded

that it is in the defendant‘s interest to be tried by the court rather than a jury, it will

often be possible to realistically assess whether it is reasonably probable that the

defendant, if personally advised of the right to a jury trial in an MDO commitment

extension proceeding and asked whether he or she waives that right, would have

chosen to be tried by a jury rather than the court. In my view, to require automatic

reversal of a judgment for these types of procedural errors, where it is highly

unlikely that the defendant was unaware of the right to a jury trial or would have

requested a jury trial over his or her counsel‘s contrary advice, fails to respect the

history and purpose of California‘s distinct constitutional harmless error provision.

Accordingly, I dissent from this aspect of the majority opinion. And, considering

the case as a whole, I believe it is clear that it is not reasonably probable that the

trial court errors affected the outcome of this proceeding. Accordingly, I would

find the trial court errors harmless under the applicable harmless error standard

and would affirm the judgment.

I. BACKGROUND

Defendant Bruce Lee Blackburn was convicted of first degree burglary and

forcible false imprisonment after entering the home of an 85-year-old woman and

accosting her in bed while he was naked. He was eventually declared an MDO

and committed to Atascadero State Hospital as a condition of parole. After two

extensions of Blackburn‘s commitment, the Santa Clara County District Attorney

filed a third petition for recommitment, which Blackburn elected to oppose and as

to which he requested a trial. The trial court failed to advise Blackburn of his right

to a jury trial and relied on his counsel‘s request to waive jury trial in favor of a

court or bench trial.

3

At that bench trial, the prosecutor presented testimony of an expert who

diagnosed Blackburn as having ―schizoaffective disorder, bipolar type‖ that was

not in remission despite his medication and that the condition was the same

disorder involved in his prior violent crime. Blackburn experienced delusions,

paranoia, and impulsivity that the expert believed would pose a danger to others.

The expert further noted that Blackburn had failed to formulate a viable discharge

plan. Blackburn did not contest the expert‘s testimony, and he neither testified nor

offered any defense evidence. The trial court sustained the petition and extended

Blackburn‘s commitment for one year pursuant to Penal Code section 2972,

subdivision (e).1

For the first time on appeal, Blackburn complained that he was denied his

statutory right to a jury trial because he was not personally advised of that right

and did not personally waive that right. On appeal, Blackburn does not contend

that his bench trial was conducted by a biased judge or point to anything that

suggests that if advised of the right to a jury trial and asked if he wanted to invoke

or waive that right, he would have chosen to be tried by a jury rather than by the

court. Nonetheless, today‘s opinion concludes that the trial court‘s failure to

personally advise Blackburn of his right to a jury trial and to obtain a personal

waiver of that right from Blackburn is sufficient to require reversal of the

judgment without application of the ordinary harmless error standard mandated by

article VI, section 13. For the reasons discussed below, I dissent.

1 All subsequent statutory references are to the Penal Code unless otherwise

indicated.

4

II. DISCUSSION

A. The standard of review for error under state law applicable in this

case

The rules governing the reversal of judgments based on state law error are

well settled. We have previously stated:

―Our state Constitution provides that ‗[n]o judgment shall be set aside, or

new trial granted, in any cause, . . . for any error as to any matter of procedure,

unless, after an examination of the entire cause, including the evidence, the court

shall be of the opinion that the error complained of has resulted in a miscarriage of

justice.‘ (Cal. Const., art. VI, § 13.) ‗The effect of this provision is to eliminate

any presumption of injury from error, and to require that the appellate court

examine the evidence to determine whether the error did in fact prejudice the

defendant. Thus, reversible error is a relative concept, and whether a slight or

gross error is ground for reversal depends on the circumstances in each case.‘

[Citation.]‖ (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, italics added.)

As our past decisions have recognized, the governing harmless error

provision was added to our state Constitution in 1911 in response to earlier

California decisions that had applied a reversible per se rule to relatively minor

procedural errors in criminal cases, overturning criminal convictions under

circumstances even though it was clear, as a realistic matter, that the error had not

affected the result in the case. (People v. Cahill (1993) 5 Cal.4th 478, 490-491

(Cahill), citing People v. O’Bryan (1913) 165 Cal. 55, 64.) In light of this explicit

California constitutional provision, our decisions have long made it clear that, as a

general matter, ― ‗a ―miscarriage of justice‖ should be declared only when the

court, ―after an examination of the entire cause, including the evidence,‖ is of the

―opinion‖ that it is reasonably probable that a result more favorable to the

appealing party would have been reached in the absence of the error.‘ ‖ (Cassim

5

v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800, quoting People v. Watson (1956)

46 Cal.2d 818, 836.)

Today‘s opinion acknowledges this general rule, but it fails to apply it in

this case. Instead, the majority maintains that this case should be viewed as falling

within an established, but limited, exception to the general rule, applicable to

errors that are so fundamental that they inevitably amount to a ―miscarriage of

justice‖ within the meaning of article VI, section 13, regardless of how unlikely it

may be that the errors actually affected the outcome. (See, e.g., Cahill, supra, 5

Cal.4th at pp. 487-493; see also id. at pp. 501-502 [describing this category as

involving ―fundamental ‗structural defects‘ in the judicial proceedings, analogous

to those to which the United States Supreme Court referred in [Arizona v.

Fulminante (1991) 499 U.S. 279]‖].) The majority reaches its conclusion by

characterizing the errors in this case as the ―denial of a jury trial‖ (maj. opn., ante,

at pp. 24, 26) and by analogizing the errors to the denial of a felony defendant‘s

right to a jury trial in a criminal proceeding. (Id. at pp. 26-27.)

Additionally, Justice Liu‘s separate opinion to his majority opinion more

broadly contends that the total denial of the right to a jury trial always constitutes a

per se miscarriage of justice, apparently without regard to whether the proceedings

are civil or criminal in nature or whether the particular right to jury trial is

constitutionally-based or is purely statutory. For this proposition, he explores the

text of article VI, section 13 and its history and purpose. Relying on case law

involving felony criminal prosecutions, the separate concurring opinion concludes

that the statutory errors at issue here denied Blackburn ―an adequate measure of

procedural justice‖ thereby depriving him of his right to a jury trial. (Conc. opn.

of Liu, J., ante, at p. 8.)

But we need not establish such a broad rule for all judicial proceedings held

in this state. In this civil matter, the advisement and waiver errors are simply

6

procedural errors of a statutory nature, and article VI, section 13 states that

judgments cannot be set aside ―for any error as to any matter of procedure, unless,

after an examination of the entire cause, including the evidence, the court shall be

of the opinion that the error complained of has resulted in a miscarriage of

justice.‖ (Ibid.) Both the majority opinion and Justice Liu‘s concurring opinion

erroneously assume that the procedural errors in this matter had the automatic

effect of denying Blackburn his statutory right to a jury trial without regard to

examining the case-by-case circumstances of whether the statutory errors affected

the decision to proceed with a bench trial.

As already noted, however, the errors in this case cannot accurately be

described as the denial of a jury trial. This is not an instance in which an MDO

defendant requested to be tried by a jury and the trial court denied the request and

required the defendant‘s case to be decided by the court (either because the court

was unaware of the statutory right to a jury trial or because the defendant‘s

counsel objected to a jury trial and the court was of the view that counsel, rather

than his or her client, controlled the decision regarding a jury trial). Nor is this a

case in which an MDO defendant was not represented by counsel and failed to

request a jury trial because he or she was unaware of the right to be tried by a jury

and was not advised of that right. Instead, this is a case in which defendant was

represented by counsel and defendant‘s counsel, presumably well aware of his

client‘s right to a jury trial, explicitly requested that the case be heard by the court

rather than by a jury. The errors here were simply the court‘s failure to advise

defendant personally of the right to a jury trial and to elicit an explicit waiver of

that right from defendant personally.

To be sure, an MDO defendant‘s statutory rights to be personally advised

by the court of the right to jury trial and to be asked personally whether he or she

wishes to waive that right are unquestionably meaningful and significant

7

safeguards. But the beneficial nature of these safeguards does not mean that a

proceeding in which these safeguards have not been provided totally denies a

defendant the right to a jury trial or deprives a defendant of a fair procedure.

The fact that a trial court in an MDO proceeding fails to advise the

defendant personally of the statutory right to a jury trial and to elicit an express

on-the-record waiver of that right from the defendant personally does not mean

that the defendant is unaware of the availability of a jury trial or that he or she

wishes to be tried by a jury rather than the court. The applicable statutory

requirements that the court personally advise an MDO defendant of the right to

jury trial and obtain an explicit personal waiver from the defendant do not

distinguish between cases in which the defendant is represented by counsel or is

unrepresented, but when, as here, a defendant is represented by counsel, the

statutory requirements generally operate simply as backup or prophylactic

safeguards. When a defendant is represented by counsel, it is generally reasonable

to assume that counsel has previously discussed the option of a jury trial with the

defendant. (See Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 272 [―in

the absence of evidence to the contrary, the court must assume counsel is

competent‖ and had discussed the decision to waive the statutory right to jury trial

with his client].) And when counsel requests a court trial and the defendant does

not object, it is also reasonable, as a practical matter, to infer that the defendant

agrees with the request for a court, rather than a jury, trial. Moreover, even if

defense counsel has not discussed the statutory jury trial right with his client and

the client is otherwise unaware of that right, the fact that the case has been tried by

the court rather than by a jury cannot be reasonably characterized as the result of

the trial court’s denial of the defendant‘s right to a jury trial. Instead, the court

trial is the result of defense counsel’s determination that it is in the defendant’s

best interest to be tried by the court, rather than by a jury, a determination that, in

8

the absence of very unusual circumstances, the defendant, if asked directly, is not

likely to have rejected. Contrary to the majority‘s assertion (maj. opn., ante, at

p. 26), an on-the-record waiver of a jury trial by the defendant personally is not the

only way to tell, realistically as opposed to theoretically, whether a defendant who

desired a jury trial was denied that opportunity. In short, the errors that occurred

in this case are much different from, and cannot properly be equated with, a

complete denial or deprivation of the right to a jury trial.

It is true, of course, that it is possible that, if personally advised by the trial

court of the right to a jury trial and asked whether he or she waives that right, a

defendant who is represented by counsel may insist upon being tried by a jury

notwithstanding his counsel‘s contrary advice. But, under article VI, section 13, a

court may not presume that these types of statutory errors are prejudicial. Instead,

it must undertake a realistic examination of all the circumstances to determine

whether it is reasonably probable that the errors affected the outcome of the case.

(People v. Breverman (1998) 19 Cal.4th 142, 173 [―Article VI, section 13

eliminated the prior appellate presumption that any substantial trial error causes a

miscarriage of justice.‖].)

In a variety of contexts, past California decisions have held that the absence

of similar procedural safeguards ― that is, advice from the trial court regarding

the existence of a fundamental right delivered in person to the defendant and an

explicit personal waiver of that right by the defendant ― does not constitute the

type of fundamental structural defect that demonstrates that the defendant has not

been accorded a fair and just procedure and for that reason invariably constitutes a

―miscarriage of justice‖ for purposes of article VI, section 13.

For example, as a matter of state and federal constitutional law, a criminal

defendant has a fundamental right to be physically present during all parts of a

trial in which the defendant faces felony criminal charges. (Kentucky v. Stincer

9

(1987) 482 U.S. 730, 745; People v. Concepcion (2008) 45 Cal.4th 77, 81.)

California, by statute, has long required a trial court to obtain a written waiver in

open court from the defendant whenever the defendant is not present during felony

trial proceedings. (§ 977, subd. (b)(2) [setting out the specific form that a personal

waiver by a defendant must take].) Nonetheless, in cases in which the defendant is

represented by counsel, California decisions have repeatedly and uniformly held

that even if the defendant has not been personally advised by the court of his or

her right to be present and even when the trial court has erred in failing to obtain

the statutorily required personal waiver of that right from the defendant, the error

is purely statutory and does not itself constitute a miscarriage of justice. Instead,

the trial court error is subject to the ordinary harmless error standard mandated by

the California Constitution. (People v. Moon (2005) 37 Cal.4th 20-21 [the lack of

a written waiver is reviewed for error under People v. Watson, supra, 46 Cal.2d

818 (Watson); rejecting the argument that there was no showing that the defendant

understood the nature of the right he was waiving]; People v. Weaver (2001) 26

Cal.4th 876, 968 [capital defendant‘s absence during the playing of a videotape to

the jury was ―merely statutory‖ error; reviewed under Watson]; (People v. Jackson

(1996) 13 Cal.4th 1164, 1211 [error in capital defendant‘s one-day absence during

the taking of testimony was ―of a purely statutory dimension‖; reviewed under

Watson].)

Similarly, past California decisions have held that even though defense

counsel ordinarily has control over what witnesses to present in a criminal

proceeding, a defendant in a criminal proceeding has a fundamental constitutional

right to testify on his or her own behalf, even when the defendant is represented by

counsel and counsel does not want to call the defendant as a witness. (People v.

Lucas (1995) 12 Cal.4th 415, 444; People v. Lucky (1988) 45 Cal.3d 259, 282;

People v. Robles (1970) 2 Cal.3d 205, 214-215.) Nonetheless, the governing

10

decisions have not held that a defendant has been denied the right to testify in his

or her own behalf simply because the trial court has not personally advised the

defendant of that right and has not elicited a personal waiver of that right from the

defendant. Instead, the decisions have found a violation of a defendant‘s right to

testify over counsel‘s contrary advice only when the defendant‘s desire to testify

has been brought to the trial court‘s attention and the court has denied the

defendant the opportunity to testify. (See, e.g., In re Horton (1991) 54 Cal.3d 82,

95 [―courts may assume that counsel‘s waiver reflects the defendant‘s consent in

the absence of an express conflict‖; ―there is no duty to admonish and secure an on

the record waiver unless the conflict comes to the court's attention.‖].) In the

absence of the defendant‘s invocation of the right to testify, we have rejected a

defendant‘s claim, on appeal, that his conviction should be automatically reversed

because the trial court did not advise him of his right to testify over his counsel‘s

objection or obtain a waiver of that right. (People v. Bradford (1997) 15 Cal.4th

1229, 1331-1333.)

The majority does not deny that it is applying an automatic or reversible per

se rule to a trial court‘s failure to obtain an explicit, on-the-record personal waiver

of a jury trial by defendant (maj. opn., ante, at p. 27), but maintains that it is not

applying an automatic reversal rule when the trial court‘s error is solely in failing

to advise a defendant of the right to a jury trial. (Maj. opn., ante, at p. 29.) In that

circumstance, according to the majority, a trial court‘s acceptance of a defendant‘s

personal waiver without an express advisement can be harmless ―if the record

affirmatively shows, based on the totality of the circumstances, that the

defendant‘s waiver was knowing and voluntary.‖ (Ibid.) The majority

emphasizes that, under its rule, ―the requirement of an affirmative showing means

that no valid waiver may be presumed from a silent record.‖ (Ibid.)

11

Even in the limited context to which the majority‘s harmless error rule

applies, however, the novel and very restrictive harmless error rule it fashions

bears no resemblance to the ordinary harmless error standard set forth in Watson

and applied in prior cases. The majority‘s harmless error test does not focus on all

of the relevant circumstances to determine whether or not it is reasonably probable

that a trial court‘s failure to personally advise an MDO defendant of the right to

jury trial actually affected the outcome of the case. For example, the majority test

does not permit an appellate court to find that the advisement error did not affect

the outcome and does not warrant reversal, either (1) because it is not reasonably

probable that, if so advised, defendant would have requested a jury trial over

counsel‘s advice, or (2) because, even if the record does not affirmatively show

that defendant explicitly waived a jury, it is reasonable to infer that the defendant

implicitly waived a jury trial when the defendant‘s past experience indicates he or

she was aware of the right to a jury trial and defendant raised no objection when

defense counsel requested a court trial. In short, even in this limited context, the

majority pays no heed to the well-established California harmless error

jurisprudence.

Consequently, in my view it is clear that the type of errors at issue here may

not properly be treated as reversible per se, but rather are subject to the ordinary

harmless error standard embodied in article VI, section 13.2

2 Because the errors in this case were simply the trial court‘s failure (1) to

personally advise an MDO defendant who was represented by counsel of the right

to jury trial and (2) to obtain a personal waiver of that right, there is no need to

decide what harmless error standard would apply if an MDO defendant who

requested to be tried by a jury was denied that opportunity or if an MDO

defendant who was not represented by counsel was not advised of the right to jury

trial or asked whether he or she waived that right. There is no reason to prejudge

those questions in this case.

12

B. MDO proceedings are not governed by the right to a jury trial

under the federal or state Constitution nor are they equivalent to

criminal trials

Today‘s opinion does not realistically come to grips with the difference

between the limited errors that occurred in this case and a complete deprivation of

the right to jury trial that would arise when a defendant who expresses a wish to be

tried by a jury is denied that right. The majority, however, does cite one case —

People v. Ernst (1994) 8 Cal.4th 441 (Ernst) — in which a criminal conviction

was reversed because the trial court had not elicited an express waiver of the right

to jury trial from the defendant personally, even though the defendant was

represented by counsel and counsel had clearly stated that both he and the

defendant agreed to waive a jury trial.

Unlike the present case, however, Ernst concerned the defendant‘s right to

a jury trial in a criminal prosecution derived from the federal and state

Constitutions, not a state statute. In concluding that reversal was required, the

court in Ernst relied upon the very specific language of article I, section 16 of the

California Constitution, which declares that ― ‗[a] jury may be waived in a

criminal cause by the consent of both parties expressed in open court by the

defendant and the defendant’s counsel.‘ ‖ (Ernst, supra, 8 Cal.4th at p. 445.) The

specific language of article I, section 16 that was crucial in Ernst — explicitly

requiring a jury waiver to be expressed in open court by both the defendant‘s

counsel and the defendant — does not apply outside the criminal context. In

contrast to a criminal case, article I, section 16 provides that ―[i]n a civil cause a

jury may be waived by the consent of the parties expressed as prescribed by

statute.‖ Here, although the governing statute contemplates waiver by the

13

defendant in an MDO proceeding, it does not state that the waiver must be

expressed in open court by the defendant.3

Even in the criminal context, past decisions of this court have held that in

circumstances in which a criminal defendant‘s right to a jury trial of an issue rests

on a statutory rather than a constitutional basis, errors relating to the statutory jury

trial right are not prejudicial per se but rather are subject to harmless error review.

For example, in People v. Marshall (1996) 13 Cal.4th 799 (Marshall), the trial

court failed to permit the jury to make a death-eligibility finding on a multiple-

murder special-circumstance allegation as required by section 190.4, the

3 The majority also cites People v. Collins (2001) 26 Cal.4th 297 (Collins) in

support of its conclusion, but that case involved an instance in which the trial court

improperly induced the defendant to waive a jury trial by offering the defendant a

benefit if he agreed to be tried by the court rather than a jury. In Collins, this court

held that the trial court‘s ―error in improperly inducing a waiver of that right

amounts to a ‗structural defect in the proceedings‘ requiring that the judgment of

conviction be set aside without the necessity of a determination of prejudice.‖ (Id.

at p. 312.) The facts of Collins are entirely distinguishable from the present case,

where no inducement was given to encourage the waiver of a jury trial, and

defense counsel knowingly and voluntarily requested a court trial and defendant

raised no objection.

In addition, and quite significantly, as in Ernst, in Collins the requirement

of a valid, express, in-court waiver of a jury trial by the defendant rested on the

provisions of article I, section 16, a requirement that, as noted above, does not

apply in a civil proceeding. In fact, the court‘s opinion in Collins specifically

relied upon the federal and state constitutional basis of the criminal defendant‘s

right to a jury in that case in distinguishing its holding from this court‘s then-

recent decision in People v. Epps (2001) 25 Cal.4th 19 (Epps) — a case described

and discussed below. The court in Collins explained in this regard that because

the defendant‘s right to a jury trial in Epps was based on a state statute rather than

the Constitution, the jury trial error in Epps was ―purely one of state law [and thus]

was subject to the state test of harmless error (Watson, supra, 46 Cal.2d at p. 836),

requiring reversal only upon a finding of a reasonable probability of a result more

favorable to the defendant in the absence of the error.‖ (Collins, supra, 26 Cal.4th

at p. 313, fn. 5.)

14

applicable California death penalty statute.4 On appeal, this court rejected the

argument that the trial court error in failing to submit that issue to the jury was a

structural defect and reversible per se, and held instead that the failure to submit

the special circumstance allegation to the jury was ―susceptible to quantitative

assessment because the record compels the conclusion the error had no effect on

the outcome of the trial.‖ (Marshall, supra, at pp. 851-852.) We explained that

because the jury had properly convicted the defendant of three counts of murder,

―there is no possibility this jury would have found defendant not death-eligible

had the special circumstance allegation been submitted to it.‖ (Id. at p. 852.)

Accordingly, we affirmed the judgment of death.

Similarly, in Epps, supra, 25 Cal.4th 19, the trial court failed to permit a

jury trial on several prior-conviction allegations that enhanced the defendant‘s

sentence by five years and additional enhancements under the three strikes law.

We adhered to article VI, section 13, and again rejected the argument that the error

was a structural defect requiring automatic reversal ―because the right to a jury

trial of the prior conviction allegations in this case is purely a creature of state

statutory law.‖ (Epps, supra, at p. 29.) We concluded that the error was harmless

considering that ―the only factual question for the jury was whether the prior

convictions occurred, and defendant did not question this fact at his prior

convictions trial‖ and ―the prior conviction records were official government

documents clearly describing the alleged convictions.‖ (Id. at pp. 29-30.)

4 The opinion in Marshall explained that a jury trial on the special

circumstance allegation was required by the applicable statute, not the

Constitution. (Marshall, supra, 13 Cal.4th at p. 851, fn. 9.)

15

The majority seems to find significance in the fact that section 2972 affords

defendants in MDO commitment proceedings protections ―borrowed directly from

the criminal context.‖ (Maj. opn., ante, at p. 27.) The majority notes that in an

MDO proceeding the statute requires a unanimous jury verdict and proof beyond a

reasonable doubt. (§ 2972, subd. (a).)

But simply because MDO commitment proceedings share some protections

afforded to defendants in criminal prosecutions does not justify departure from the

generally applicable harmless error rule mandated by the California Constitution.

The majority cites no case to justify this approach. If this were a valid reason to

apply the majority‘s rule, an automatic reversal rule should have been applied to

the denial of a jury trial concerning special circumstances in Marshall and

concerning prior convictions in Epps. The proceedings in those cases afforded the

criminal defendants all of the rights applicable in criminal proceedings, yet we did

not apply a rule of automatic reversal where the defendant was erroneously not

afforded a jury trial as required by the applicable statute. If we are to borrow

protections provided in criminal proceedings for the present matter, then Marshall

and Epps should supply the basis for how we evaluate any error concerning the

right to a jury trial based only on statute. Moreover, the actual restrictions on life

and liberty as to which a jury trial was not afforded in Marshall and Epps were far

more serious than the one-year civil MDO commitment at issue in the present

case. There is no reason to single out MDO proceedings for different treatment, as

today‘s opinion does.

Simply put, unlike Ernst, the present case is not a criminal case. Section

2972 itself refers to an MDO commitment proceeding as a ―civil hearing.‖

(§ 2972, subd. (a); see People v. Fernandez (1999) 70 Cal.App.4th 117, 126, fn. 5;

People v. Robinson (1998) 63 Cal.App.4th 348, 352; People v. Superior Court

(Myers) (1996) 50 Cal.App.4th 826, 832.) As one court has noted, ―the MDO

16

provisions are neither punitive in purpose nor effect and their procedural

safeguards do not require us to transform the hearing into a criminal trial.‖

(Myers, supra, at pp. 834.) Although some procedural safeguards that are

applicable in criminal proceedings have been extended by statute to MDO

proceedings, MDO proceedings do not have many of the protections afforded to

criminal defendants. (People v. Beeson (2002) 99 Cal.App.4th 1393, 1404 [―a

defendant in an MDO proceeding, despite the statutorily required proof beyond a

reasonable doubt standard, does not have a constitutional right to the additional

procedural safeguards generally reserved for criminal defendants, including a

presumption-of-innocence instruction‖]; see People v. Williams (2003) 110

Cal.App.4th 1577, 1592 [refusing to allow an absolute right of self-

representation]; People v. Clark (2000) 82 Cal.App.4th 1072, 1081 [refusing to

recognize a right against compulsory self-incrimination]; People v. Robinson,

supra, at p. 349 [refusing to apply a prohibition against ex post facto laws].)

The high court has also rejected the argument that the provision of some

criminal procedural safeguards found in criminal trials means that other

protections provided to criminal defendants should also apply to civil commitment

proceedings. In Allen v. Illinois (1986) 478 U.S. 364, the United States Supreme

Court rejected the notion that the Fifth Amendment right against compulsory self-

incrimination in criminal proceedings should also apply to a civil commitment

proceeding under the Illinois Sexually Dangerous Persons Act. The court

reasoned: ―[T]he State has indicated quite clearly its intent that these commitment

proceedings be civil in nature; its decision nevertheless to provide some of the

safeguards applicable in criminal trials cannot itself turn these proceedings into

criminal prosecutions requiring the full panoply of rights applicable there.‖

(Allen, supra, at p. 372.)

17

The fact that our courts have refused to provide other protections afforded

in the criminal context to MDO commitment proceedings only accentuates why it

is illogical to assume that civil MDO proceedings should be treated the same as

criminal prosecutions. Criminal trials and civil MDO proceedings serve very

different goals and purposes, yet today‘s opinion completely fails to address those

differences and, instead, imposes a reversal rule derived from the constitutionally

protected right to jury trial in criminal prosecutions.

Significantly, the majority does not hold that an MDO defendant‘s right to

a jury trial rests on federal or state constitutional grounds; rather the majority

proceeds on the assumption that the jury trial right in an MDO proceeding is based

solely on the applicable statute.5 Accordingly, because a defendant‘s procedural

rights in an MDO proceeding to be personally advised by the court of a right to a

jury trial and to be asked whether he or she waives that right derive from a state

statute, the decision in Ernst and the other criminal cases relied upon by the

5 No case has held that the federal or California constitution guarantees an

individual a right to a jury trial in an MDO proceeding, and it would be difficult to

reach such a conclusion. In general, the jury trial provisions of the United States

and California Constitutions preserve ―the right to trial by jury as it existed at

common law . . . and what that right is, is a purely historical question, a fact which

is to be ascertained like any other social, political or legal fact. The right is the

historical right enjoyed at the time it was guaranteed by the Constitution.‖ (People

v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 287 [interpreting Cal. Const.,

art. I, former § 7, see now art I, § 16]; see Duncan v. Louisiana (1968) 391 U.S.

145, 160-161 [interpreting due process clause of the 14th Amend. of the U.S.

Const.].) Commitment proceedings for MDO‘s, as defined by section 2970, were

apparently unknown at common law, and the parties have not directed us to any

authority suggesting otherwise. (See Matter of Application of O’Connor (1915)

29 Cal.App. 225, 235-236 [―where the state constitution guarantees the common-

law right of trial by jury, only those cases in which that right was habitually

exercised according to the course of the common law come within the terms of the

guaranty, and . . . an inquisition of insanity is not one of those cases‖].)

18

majority to support a reversible per se rule are clearly distinguishable from the

present case, and there is no persuasive reason why they should be extended to

civil MDO commitment extension proceedings.6

C. The circumstances of the error in this matter do not defy harmless

error review

Quoting the high court‘s decision in Sullivan v. Louisiana (1993) 508 U.S.

275 (Sullivan), today‘s opinion additionally suggests that a reversible per se rule is

justified because the error in question ― ‗def[ies] analysis by ―harmless-error‖

standards‘ ‖ on the theory that the effects of the error are ― ‗unmeasurable.‘ ‖

(Maj. opn., ante, at p. 27, quoting Sullivan, supra, 508 U.S. at p. 281.) But this

reference to Sullivan is inapt.

6 I note that in People v. Barrett (2012) 54 Cal.4th 1081, the majority

concluded that a person facing a civil commitment as a dangerous

developmentally disabled person under Welfare and Institutions Code,

section 6500, has no due process or equal protection right to be advised of the

right to jury trial or to personally waive such a right. Justice Liu‘s concurring and

dissenting opinion in that case would have found that Barrett had a state statutory

right to be advised of her jury trial right, but further concluded that the error was

harmless under the state law harmless error test of Watson, stating ―I would

conclude on the basis of the evidence that there was no reasonable probability

Barrett would have achieved a more favorable outcome had she been tried by a

jury.‖ (People v. Barrett, supra, at p. 1151 (conc. & dis. opn. of Liu, J.); see also

id. at p. 1114 (conc. & dis. opn. of Werdegar, J. [finding trial court erred in failing

to advise defendant of her jury trial right, but concluding that the error was

nonprejudicial under art. VI, § 13 ―because it was not reasonably probable she

would have achieved a more favorable result had the trial court informed her of

her jury trial right‖].) Contrary to the implication of the majority (maj. opn., ante,

at pp. 29-30), absolutely nothing in the concurring and dissenting opinions in

Barrett suggests that the defendant had knowingly and voluntarily waived that

right or that resolution of the harmless error question turned on an affirmative

showing of that fact.

19

In Sullivan, the high court recognized the ―right to trial by jury in serious

criminal cases to be ‗fundamental to the American scheme of justice.‘ ‖ (Sullivan,

supra, 508 U.S. at p. 277, quoting Duncan v. Louisiana (1968) 391 U.S. 145, 149,

italics added.) The quote from Sullivan cited by today‘s majority addressed a

faulty instruction concerning the definition of reasonable doubt and how that

erroneous instruction had the effect of denying the defendant his right to a jury

trial for first degree murder in a manner that defied review. (Sullivan, at p. 281.)

But in subsequent cases, the high court has distanced itself from some of the very

broad language and reasoning in Sullivan (see, e.g., Neder v. United States (1999)

527 U.S. 1, 10-15), and has declined to apply an automatic reversal rule in

somewhat analogous situations, including a trial court‘s failure to instruct the jury

on an element of a charged offense (ibid.) and a trial court‘s failure to submit a

sentencing factor for determination by a jury (Washington v. Recuenco (2006) 548

U.S. 212, 218-222).

Significantly, the majority does not address the potential difference

between the errors that occurred in this case and the complete deprivation of the

right to jury trial that would be presented, for example, when a defendant who

expresses a wish to be tried by a jury is denied that right. The majority cites no

case in which the United States Supreme Court (or, indeed, any court) has applied

an automatic reversal rule in a case like this one — a civil commitment proceeding

in which a party‘s right to a jury trial derives solely from statute, and the trial

court‘s errors are simply failing to personally advise a defendant who is

represented by counsel of the right to a jury trial and to obtain a personal waiver of

that right from the defendant.

In my view, the prejudicial effect of the limited errors at issue here —

namely, the trial court‘s failure to personally advise a defendant in an MDO

proceeding of the right to jury trial and to obtain an on-the-record personal waiver

20

of that right — are fully amenable to review under the traditional state harmless

error standard mandated by article VI, section 13.

The amenability of these types of statutory errors to harmless error review

is clearly demonstrated by this court‘s past decisions.

In People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 (Zamudio),

for example, we analyzed the effect of a trial court error under a statute, section

1016.5, that requires a trial court to advise a defendant who is pleading guilty or

no contest of all the possible immigration consequences of such a plea. In

Zamudio, the defendant agreed to waive his jury trial and pled ―no contest to the

felony of unlawful driving or taking of a vehicle without the owner‘s consent.‖

(Id. at p. 188.) Before taking the plea, the trial court properly advised the

defendant of some of the immigration consequences of such a plea, but the court

failed to advise him that his conviction might result in his being precluded from

any future admission to this country. We agreed with the defendant‘s contention

that the trial court had erred under the statute in failing to so advise him. (Ibid.)

Nonetheless, notwithstanding the fact that section 1016.5, subdivision (b),

contained a provision specifically stating that, in the event of any advisement error

under the statute, the court ―shall vacate the judgment‖ and allow the defendant to

withdraw the plea, in Zamudio this court concluded that the trial court‘s error

could not properly be considered prejudicial per se and automatically require

setting aside the defendant‘s plea. Instead, we held that the prejudicial effect of

the error had to be determined under the standard established by article VI, section

13, and we concluded that under that constitutional provision the defendant was

required to show prejudice from the absence of such advice, namely ―that,

properly advised, he would not have pleaded no contest in the first place.‖

(Zamudio, supra, 23 Cal.4th at p. 192.)

21

Similarly, past decisions of this court that have addressed a trial court‘s

failure to comply with the statutory safeguards regarding a criminal defendant‘s

waiver of the right to be personally present at trial proceedings have also

concluded that such errors are fully amenable to, and are properly evaluated under,

the ordinary harmless error test established by article VI, section 13. (See, e.g.,

People v. Riel (2000) 22 Cal.4th 1153, 1195-1196; People v. Mayfield (1997) 14

Cal.4th 668, 738-739; People v. Jackson, supra, 13 Cal.4th at pp. 1209-1212.) In

People v. Jackson, for example, after concluding that the trial court had violated

the applicable provisions of section 977 in permitting the capital defendant in that

case to be absent from a portion of the trial in which evidence was taken, this court

declared that because ―the error in this case is of a purely statutory dimension[,]

[w]e will reverse the judgment only if we can conclude ‗that it is reasonably

probable that a result more favorable to the appealing party would have been

reached in the absence of the error.‘ ‖ (13 Cal.4th at p. 1211 [quoting Watson].)

The court in Jackson went on to find that ‗[n]o such reasonable probability

appears in the present case,‖ reasoning that because the defendant was aware of

his right to be present at the trial proceedings in question and had agreed with his

counsel‘s judgment that there was no need for his presence at such proceedings,

―defendant‘s absence during that testimony was not likely to affect the outcome of

the trial.‖ (Ibid.)

As in Zamudio and the cases involving a waiver of personal presence, the

relevant inquiry here is whether, if the trial court had properly advised Blackburn

of his statutory right to a jury trial and sought a personal waiver, it is reasonably

probable that the outcome of the proceeding would have been different. As the

cited cases make clear, such an inquiry does not defy analysis under the ordinary

harmless error standard.

22

Applying the traditional Watson harmless error standard to the

circumstances of this case, I believe it is clear that it is not reasonably probable

that the trial court errors affected the outcome of this matter. Here, nothing

indicates that had Blackburn been advised of his statutory right to a jury trial and

had he been asked whether he waived that right, he would have declined to waive

that right. This matter was Blackburn‘s third MDO extension proceeding.

Blackburn was represented by experienced counsel, who was fully aware that his

client had the right to a jury trial and who, with that knowledge, determined that it

was in his client‘s best interest to be tried by the court rather than by a jury.

Presumably, counsel concluded that Blackburn would benefit from having this

MDO matter decided by a trial judge who was experienced in handling such

proceedings and might be less likely to be influenced by possible stigma

concerning mental health issues than the average lay juror who has no experience

with such matters. Furthermore, because the defense presented no evidence

whatsoever, this is not a case in which there is evidence that, from defendant‘s

perspective, would potentially be more persuasive to a jury than to a court. Under

these circumstances, it is counterintuitive to conclude that Blackburn would have

rejected his counsel‘s choice and insisted on a trial by jury after being advised of

that right.

The case of People v. Lightsey (2012) 54 Cal.4th 668, relied on by the

majority, is quite distinguishable. In that matter, the defendant was erroneously

denied counsel during competency proceedings, and, instead, represented himself,

presenting an expert who testified that the defendant was competent to stand trial.

In Lightsey, we explained that such an error defied review because, if counsel had

been appointed, there were ―myriad possible strategic choices counsel might have

made that could have affected the outcome, for example, by choosing a defense

expert different from the expert defendant chose, [or] asking for a third expert to

23

break the tie between the two experts already consulted.‖ (Id. at p. 701.)

Moreover, ―the evidence presented regarding defendant‘s competence was

conflicting.‖ (Ibid.) Consequently, we concluded that ―allowing defendant to

represent himself in the competency proceedings was akin to structural error,

rendering the result of the proceedings — the finding that defendant was mentally

competent to stand trial — unreliable.‖ (Ibid.)

In stark contrast to the facts in Lightsey, Blackburn was represented by

experienced counsel. There is no indication or evidence that Blackburn would

have disagreed with his counsel‘s choice to have a bench trial. Because, we know

what evidence the state presented and that the defense did not present any

conflicting evidence at all, there was no evidence that might plausibly be

considered more persuasive in defendant‘s favor if tried before a jury. The trial

court errors here were amenable to harmless error review and were not prejudicial

under the Watson standard.

III. CONCLUSION

Past cases have explained that an overly broad rule of reversible error that

automatically compels the reversal of a judgment on the basis of an error that did

not affect the outcome ―will result either in a superfluous retrial in which the

outcome is a foregone conclusion or, even more unfortunately, in a new trial

whose result is altered by the loss of essential witnesses or testimony through the

passage of time.‖ (Cahill, supra, 5 Cal.4th at p. 509.)

Today‘s majority commits just such a mistake by failing to follow the

mandate of article VI, section 13, and holding that the statutory advisement and

personal waiver errors at issue here should generally be considered prejudicial per

se. Because the errors here do not in themselves constitute a ―miscarriage of

justice‖ (ibid.) and are amenable to constitutionally mandated harmless error

review under article VI, section 13, I dissent from the majority‘s adoption of an

24

automatic reversal rule. And because I believe it is clear that the trial court errors

were not prejudicial in this case, I would affirm the judgment.

CANTIL-SAKAUYE, C. J.

I CONCUR:

CHIN, J.

25

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Blackburn

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 215 Cal.App.4th 809

Rehearing Granted

__________________________________________________________________________________

Opinion No. S211078

Date Filed: August 17, 2015

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Gilbert T. Brown

__________________________________________________________________________________

Counsel:

Rudy Kraft, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,

Assistant Attorney General, Seth K. Schalit, John H. Deist, Laurence K. Sullivan, Catherine A. Rivlin and

Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Rudy Kraft

P.O. Box 1677

San Luis Obispo, CA 93406

(805) 546-9239

Karen Z. Bovarnick

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 703-5550

2