Defendant’s waiver of right to a jury trial in Mentally Disordered Offender (MDO) commitment proceedings was not knowing and voluntary, warranting reversal. In 2016, the Board of Parole Hearings determined defendant met the MDO criteria under Penal Code section 2962. Prior to the hearing on defendant’s petition challenging the determination, the court appointed counsel, who immediately requested a court trial. The trial court asked defendant if he was “okay with having a judge decide [his] case and not a jury.” Defendant replied, “Yes.” Following a bench trial, the court determined defendant met the MDO criteria and had him committed to the Department of Mental Health. On appeal, defendant argued his waiver of the right to a jury trial was not knowing and voluntary. Held: Reversed. In People v. Blackburn (2015) 61 Cal.4th 1113, the California Supreme Court held that a trial court must advise a defendant in MDO recommitment proceedings of his or her right to a jury trial. The Court of Appeal here held that Blackburn applies to all MDO hearings, including original commitment hearings. Before proceeding with a bench trial, the court must elicit a personal waiver of the right to a jury trial, unless the court finds substantial evidence that the petitioner lacks the capacity to make a knowing and voluntary waiver. Here, the trial court did not inform defendant of his right to a jury trial, nor inquire as to whether defendant had sufficient opportunity to discuss the decision with his attorney, who had been appointed only moments earlier. While 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, the record did not do so in this case. Given the court’s “stark colloquy,” the lack of evidence defendant discussed the waiver with counsel, and defendant’s lack of familiarity with MDO proceedings, his waiver was not knowing and intelligent.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B277433.PDF