In proceedings to extend the involuntary commitment of a mentally disordered offender (MDO), the trial court must advise the defendant of his right to a jury trial and obtain the defendant’s personal waiver of that right before holding a bench trial, unless the defendant lacks the capacity to make to make a knowing and voluntary waiver. After he was convicted of criminal offenses, Blackburn was declared an MDO and his commitment was extended twice. When the District Attorney filed a third petition to extend his commitment, Blackburn opposed the extension and wanted a trial. Without advising Blackburn of his right to a jury trial or securing a personal waiver from him, the court accepted counsel’s waiver of the right, held a bench trial, and extended Blackburn’s commitment. Blackburn appealed, arguing that the court erred by failing to secure a personal waiver of his right to a jury trial. The Court of Appeal held that the trial court erred by failing to advise Blackburn of his right to a jury trial, but it found the error harmless. The court also concluded that a personal waiver of the jury trial right was not required. The Supreme Court granted review. Held: Reversed and remanded. Penal Code section 2972 sets forth the procedures applicable to a hearing on a petition to extend an MDO’s commitment beyond the termination of parole. Here, the Supreme Court concluded that section 2972 unambiguously requires the trial court to advise the MDO, not merely his attorney, of the right to a jury trial. After analyzing section 2972 and other MDO statutes, the court construed “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 [on the record] 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.” 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 must appear on the record. The court disapproved People v. Otis (1999) 70 Cal.App.4th 1174, and People v. Montoya (2001) 86 Cal.App.4th 825 to the extent they are inconsistent with this decision.

When a trial court errs in completely denying an MDO defendant the right to a jury trial under section 2972, subdivision (a), the error requires automatic reversal. The trial court erred in this case because the record did not indicate that the court advised Blackburn of his right to a jury trial. The court also erred in accepting counsel’s waiver of Blackburn’s right to a jury trial. After analyzing California’s harmless error rule set forth in the California Constitution (art. VI, § 13) and considering the MDO commitment scheme, the Supreme Court concluded that the total deprivation of a jury trial without a valid waiver in an MDO commitment proceeding requires automatic reversal. A trial court’s failure to obtain the required personal waiver is tantamount to the denial of a jury trial and, as a result, constitutes a “miscarriage of justice” under article VI, section 13. The jury guarantee is a basic protection in MDO commitment proceedings and the denial of this right defies harmless error analysis. However, the harmless error analysis does apply if the trial court accepts counsel’s waiver and the record affirmatively shows that there was substantial evidence that the defendant lacked the capacity to make a knowing and voluntary waiver. Additionally, “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.” Because the trial court here may have relied on prior law in proceeding with a bench trial without making a record of Blackburn’s personal waiver or his lack of capacity to make a waiver, the Supreme Court remanded the case for the trial court to make this determination. The court disapproved People v. Wrentmore (2011) 196 Cal.App.4th 921, and People v. Cosgrove (2002) 100 Cal.App.4th 1266 to the extent they are inconsistent with this decision. [Editor’s Note: Chief Justice Cantil-Sakauye and Justice Chin dissented from the portion of the opinion addressing harmless error review.]