In proceedings to extend the involuntary commitment of a person found not guilty by reason of insanity (NGI), the trial court must advise the NGI defendant of his right to a jury trial and obtain a personal waiver before holding a bench trial, unless the defendant lacks the capacity to make a knowing and voluntary waiver. The District Attorney filed a petition to extend Tran’s NGI commitment a fourth time. Tran’s counsel requested a bench trial and the prosecutor agreed. After the trial, the court sustained the petition and extended Tran’s NGI commitment. Tran appealed. The Court of Appeal held that the trial court erred by failing to advise Tran 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 California Supreme Court granted review. Held: Reversed and remanded. Penal Code section 1026.5, subdivision (b) unambiguously requires that the trial court personally inform a NGI defendant facing a commitment extension of his right to a jury trial and that the trial court secure a waiver of that right from the defendant on the record before holding a bench trial. (See also People v. Blackburn (2015) 61 Cal.4th 1113 [a companion case, which dealt with this same issue in the context of a MDO commitment extension proceedings].) However, if the trial court finds substantial evidence that the defendant lacks capacity to make a waiver, then control of the waiver decision belongs to counsel. Substantial evidence is evidence that raises a reasonable doubt about the defendant’s capacity to make a knowing and voluntary waiver. The court disapproved People v. Powell (2004) 114 Cal.App.4th 1153, 1158 and People v. Givan (2007) 156 Cal.App.4th 405, 410–411, to the extent they are inconsistent with this decision.

Trial court’s acceptance of an invalid jury trial waiver under section 1026.5, subdivision (b)(4) automatically requires reversal. The Supreme Court also concluded that the trial court’s acceptance of an invalid jury trial waiver is not susceptible to ordinary harmless error analysis and that automatic reversal is required. However, not all errors under section 1026.5, subdivision (b)(4)’s advisement and waiver provisions require automatic reversal. “A trial court’s acceptance of counsel’s waiver without an explicit finding of substantial evidence that the NGI 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 defense counsel’s waiver. Similarly, a trial court’s acceptance of a defendant’s personal waiver without an express advisement of the statutory right to a jury trial 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. In both scenarios, the requirement of an affirmative showing means that no valid waiver may be presumed from a silent record.” Here, the record was silent with respect to both inquiries. But because the trial court may have relied on prior law that vested counsel with the waiver decision, the Supreme Court remanded for a determination of whether Tran made a knowing and voluntary waiver of his right to a jury trial or lacked the capacity to make such a waiver. [Editor’s Note: Chief Justice Cantil-Sakauye and Justice Chin dissented from the portion of the opinion addressing harmless error review.]