The trial court erred in failing to advise defendant of his Boykin/Tahl rights on prior convictions and aggravating factors before accepting defendant’s stipulation. Because nothing in the record affirmatively showed that defendant was aware of his rights, under the totality of the circumstances, defendant did not provide a knowing and voluntary waiver. The same requirements for advisement and waiver that apply to a defendant’s stipulation to a prior conviction apply to aggravating factors.
The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B338040.PDF
The trial court erred in failing to advise defendant of his Boykin/Tahl rights on prior convictions and aggravating factors before accepting defendant’s stipulation. Because nothing in the record affirmatively showed that defendant was aware of his rights, under the totality of the circumstances, defendant did not provide a knowing and voluntary waiver. The same requirements for advisement and waiver that apply to a defendant’s stipulation to a prior conviction apply to aggravating factors.
The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B338040.PDF
Record failed to show that OMHD defendant validly waived his right to a jury where the trial court did not take any steps to determine if defendant understood his jury right and instead relied on counsel’s perfunctory questioning. Following a bench trial, McCray was recommitted as a violent offender with a mental health disorder (OMHD). On appeal, McCray raised a number of issues, including that the trial court failed to obtain from him a knowing and intelligent waiver of his right to a jury. While the appeal was pending, the recommitment at issue expired and McCray was recommitted based on…
Record failed to show that OMHD defendant validly waived his right to a jury where the trial court did not take any steps to determine if defendant understood his jury right and instead relied on counsel’s perfunctory questioning. Following a bench trial, McCray was recommitted as a violent offender with a mental health disorder (OMHD). On appeal, McCray raised a number of issues, including that the trial court failed to obtain from him a knowing and intelligent waiver of his right to a jury. While the appeal was pending, the recommitment at issue expired and McCray was recommitted based on a new petition. The Court of Appeal found this rendered the appeal moot but decided the jury waiver issue under an exception to mootness. Held: Dismissed as moot. A reviewing court independently examines the record to determine whether a defendant’s jury waiver was knowing, intelligent, and voluntary and will uphold the waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. This requires some showing that the defendant understood the mechanics of a jury trial—such as the number of jurors, the voir dire process, and the unanimity requirements. The record here did not meet this standard. The jury waiver colloquy consisted of McCray’s counsel asking whether he agreed to waive his right to a jury without any advisement on the record about the procedures inherent in a jury trial. “The essential problem in this case is that the trial court effectively outsourced to counsel the task of ensuring McCray fully understood what he was giving up, and then did nothing to verify what counsel advised his client.” Moreover, the Court of Appeal would not presume a knowing waiver from the fact that McCray had been party to multiple prior OMHD hearings because there was no showing in any of them that he made a knowing waiver of his right to a jury.
Senate Bill No. 567’s amendments to Penal Code section 1170(b)(1) do not require the prosecution to “plead” aggravating factors that it intends to urge at sentencing. In 2022, defendant pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (§ 288(a)). At sentencing, the court found no mitigating factors and seven aggravating factors set forth in California Rules of Court, rule 4.421, and sentenced defendant to 10 years in prison, which included the upper term on one of the two counts. On appeal, defendant argued the aggravating factors found…
Senate Bill No. 567’s amendments to Penal Code section 1170(b)(1) do not require the prosecution to “plead” aggravating factors that it intends to urge at sentencing. In 2022, defendant pleaded no contest to two counts of committing lewd or lascivious acts on a child under the age of 14 years (§ 288(a)). At sentencing, the court found no mitigating factors and seven aggravating factors set forth in California Rules of Court, rule 4.421, and sentenced defendant to 10 years in prison, which included the upper term on one of the two counts. On appeal, defendant argued the aggravating factors found by the trial court were not pleaded. Held: Affirmed. The court agreed with People v. Pantaleon (2023) 89 Cal.App.5th 932, 939–941, that there is a significant distinction between “enhancements,” which section 1170.1(e) requires “shall be alleged in the accusatory pleading,” and “circumstances in aggravation” addressed by section 1170(b), which does not contain a like mandate. Defendant’s sentence was not constitutionally or statutorily infirm due to failure to allege sentencing factors in aggravation.
On this record, defendant’s jury trial wavier was constitutionally sufficient, including as to the facts supporting the upper term sentence. On appeal, defendant argued that the aggravated term was unlawful because he did not waive his constitutional right to a jury trial on the facts underlying the aggravating factors, as required by Cunningham and Blakely. The court disagreed. Defendant’s plea form expressly waived his right to a jury trial not only as to each charge, but also as to any “special allegation and/or sentence enhancement I admit to be true.” In open court, he expressly confirmed that the court would consider all aggravating factors set forth in rule 4.421, and he went on to expressly confirm he was giving up his right to a jury trial. There is a distinction between what is constitutionally required for a valid jury waiver and what may be statutorily required under state law. A knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right, but there is no additional constitutional requirement that a defendant be specifically advised of the specific charges, enhancements, allegations, or other issues to which a general jury waiver will apply. Absent unusual circumstances not present here, where a defendant waives a jury trial he is deemed to have consented to a trial of all of the issues in the case before the court sitting without a jury. Given the clarity of the record here that defendant knowingly and voluntarily waived his right to jury trial generally and did so fully advised and personally agreeing in open court that the negotiated disposition included that the court would consider all aggravating circumstances, defendant’s jury waiver was constitutionally sufficient.
Defendant’s prior section 288(c) conviction and prior DUI convictions support the trial court’s reliance on the recidivist factor set forth in rule 4.421(b)(2) to justify the upper term sentence. Before imposing the upper term at sentencing, the trial court indicated defendant had four prior DUIs at the time of his conviction, as well as a prior misdemeanor conviction under section 288(c). Although the prior 288 conviction was admitted into evidence at the preliminary hearing, the four DUIs were identified in the probation department presentencing report. On appeal, defendant argued that none of these convictions were based on a certified record of conviction as required by amended section 1170(b)(3). The court found this issue forfeited, as the amended version of section 1170 went into effect four months prior to the sentencing hearing and defendant made no objection. In any event, the section 288(c) conviction alone was enough to support the trial court’s invocation of the recidivist factor. Although rule 4.421(b)(2) refers to prior “convictions,” it is apparent from the advisory committee’s comment that the Judicial Council’s intent was that a court may consider one conviction as an aggravating factor. Further, it would seem an absurd result if the trial court could not consider defendant’s prior 288(c) conviction as an aggravating factor in this case, given his current conviction for two counts of violating section 288(a).
Because at least one factor in aggravation—recidivism under rule 4.421(b)(2)—was established in a permissible manner, the trial court’s finding of additional factors in aggravation did not violate defendant’s Sixth Amendment right. In People v. Black (2007) 41 Cal.4th 799, 816 (Black II), the California Supreme Court recognized that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” Here, the court considered the amendments to section 1170—which created a rule limiting a trial court’s discretion to impose the upper term in cases where no aggravating factor has been proven beyond a reasonable doubt, stipulated to by the defendant, or established by certified record—and determined that these amendments did not change the law that one aggravating circumstance can justify imposition of the upper term, particularly in a case like this one, where the trial court finds no mitigating factors.
After jury was discharged and defendant waived his right to a jury trial on his priors, trial court erred by allowing the prosecution to substantially amend the information to change the date, place, and the offense alleged as a strike prior. A jury convicted Lavoie of a number of felony offenses and was discharged. After waiving his right to a jury trial on his prior convictions, Lavoie admitted two strike priors, two prior serious felony enhancements, and two prison priors. While Lavoie was admitting the priors, the trial court permitted the prosecution to amend the alleged prior convictions. The first…
After jury was discharged and defendant waived his right to a jury trial on his priors, trial court erred by allowing the prosecution to substantially amend the information to change the date, place, and the offense alleged as a strike prior. A jury convicted Lavoie of a number of felony offenses and was discharged. After waiving his right to a jury trial on his prior convictions, Lavoie admitted two strike priors, two prior serious felony enhancements, and two prison priors. While Lavoie was admitting the priors, the trial court permitted the prosecution to amend the alleged prior convictions. The first two amendments were to the date and jurisdiction of a prison prior and a prior serious felony. The third amendment changed the date, jurisdiction, and offense of a strike prior. Defense counsel did not object. Lavoie was sentenced to 71 years 4 months to life. On appeal, Lavoie argued it was error to allow the prosecution to amend the alleged prior convictions after the jury had been discharged. Held: Reversed in part. Penal Code section 1025, subdivision (b) "requires that the same jury that decided the issue of a defendant's guilt 'shall' also determine the truth of alleged prior convictions. Because a jury cannot determine the truth of the prior conviction allegations once it has been discharged" an information may not be amended to add prior conviction allegations after the jury is discharged. (People v. Tindall (2000) 24 Cal.4th 767, 782.) After analyzing Tindall and related cases, the court concluded that "when a defendant has waived a jury trial on prior conviction allegations, and when the prior conviction allegations are amended typographically and not substantially, the waiver remains binding." The waiver is not binding when the amendment is substantial. Here, the first two amendments to the date and jurisdiction of a prison prior and a prior serious felony were minor and did not constitute an error. The third amendment changing the date, jurisdiction and offense of a strike prior, however, was substantial.
Trial counsel provided ineffective assistance of counsel by failing to object to a substantial amendment to a prior conviction allegation after the jury had been discharged. The issue regarding the amendment to the information was forfeited on appeal because trial counsel did not object. Here, the failure to object constituted ineffective assistance of counsel. "[T]here could be no satisfactory explanation for defense counsel's failure to object." Lavoie could have avoided a 25-years-to-life sentence under the Three Strikes law if his trial attorney had objected. The erroneously amended strike was stricken and the matter remanded for resentencing.
The full opinion is available on the court's website here: https://www.courts.ca.gov/opinions/archive/E068328.PDF
When a trial court fails to advise a defendant and take waivers of any of his trial rights before accepting a guilty plea, the Howard totality of the circumstances test applies to determine whether the plea is valid. Farwell was charged with gross vehicular manslaughter and misdemeanor driving with a suspended or revoked license. Prior to trial, he attempted to plead no contest to the misdemeanor charge. The prosecution objected and the court did not accept the change of plea. After defense counsel cross-examined the first witness during trial, the parties entered into a stipulation that established all of the…
When a trial court fails to advise a defendant and take waivers of any of his trial rights before accepting a guilty plea, the Howard totality of the circumstances test applies to determine whether the plea is valid. Farwell was charged with gross vehicular manslaughter and misdemeanor driving with a suspended or revoked license. Prior to trial, he attempted to plead no contest to the misdemeanor charge. The prosecution objected and the court did not accept the change of plea. After defense counsel cross-examined the first witness during trial, the parties entered into a stipulation that established all of the elements of the misdemeanor charge, but the court did not advise Farwell of any of the constitutional rights implicated by a guilty plea or the stipulation, nor did it solicit a personal waiver of those rights. The jury found Farwell guilty as charged. On appeal, Farwell challenged the validity of the stipulation. The Court of Appeal affirmed the judgment. The California Supreme Court granted review. Held: Reversed. A stipulation that admits all the elements of a charged crime is tantamount to a guilty plea and the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights. In People v. Howard (1992) 1 Cal.4th 1132, the court held that a plea is valid notwithstanding the lack of express advisements and waivers "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances." Following Howard, some appellate courts concluded this test only applied to incomplete-advisement cases (like Howard), but not silent-record cases (i.e., where the trial court did not advise the defendant or obtain his waiver of any of his trial rights). After analyzing relevant case law, the California Supreme Court concluded that "the Howard totality of the circumstances test applies in all circumstances where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea."
Applying the Howard totality of the circumstances test, defendant's conviction must be reversed because there was no affirmative showing that he understood he was waiving his trial rights by virtue of the stipulation counsel entered on his behalf. The court noted that the "absence of express advisements is particularly troublesome in the context of stipulations that are tantamount to a guilty plea" and that "[w]hen the defendant's counsel enters into such a stipulation, the record must affirmatively demonstrate that the defendant understood the agreement effectively extinguished his trial rights." Regardless of whether the circumstances affirmatively demonstrated that Farwell was aware of his constitutional trial rights as a general matter, there was no affirmative evidence that Farwell understood his stipulation would conclusively establish all of the elements of the misdemeanor crime and make the guilty verdict a foregone conclusion. The stipulation was entered in the middle of a witness' testimony after an unreported discussion at the bench that was apparently outside Farwell's presence. The court did not discuss the stipulation or the legal effect with Farwell, and counsel did not confirm on the record she had done so. Before counsel entered the stipulation, Farwell had rejected a plea offer for the vehicular manslaughter charge, the court had refused to accept his no contest plea to the misdemeanor count, and he was in the middle of his jury trial. He would have correctly understood that he was accused of both crimes and the prosecution had the burden of proving him guilty beyond a reasonable doubt. The Court of Appeal's decision affirming Farwell's misdemeanor conviction was reversed and Farwell's case must be remanded to the trial court for further proceedings.
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/S231009.PDF
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…
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
Defendant's jury trial waiver was sufficient despite the fact that he was not specifically advised that he had the right to a jury comprised of 12 jurors who must make a unanimous decision as to his guilt. Doyle was found guilty of vehicular manslaughter and other offenses after a court trial. He appealed, arguing that he was not fully advised of his constitutional right to a trial by 12 jurors prior to waiving his right to a jury trial. While the court asked him whether he had discussed his right to a jury trial with counsel and whether he waived…
Defendant's jury trial waiver was sufficient despite the fact that he was not specifically advised that he had the right to a jury comprised of 12 jurors who must make a unanimous decision as to his guilt. Doyle was found guilty of vehicular manslaughter and other offenses after a court trial. He appealed, arguing that he was not fully advised of his constitutional right to a trial by 12 jurors prior to waiving his right to a jury trial. While the court asked him whether he had discussed his right to a jury trial with counsel and whether he waived that right, it did not specifically inform him that he had a right to a trial by 12 jurors and that all 12 jurors would have to unanimously find him guilty. Held: Affirmed. To be valid, a defendant's waiver of the right to a jury must also be knowing and intelligent. "No particular language is necessary to waive a jury trial so long as the words employed disclose in their ordinary common sense, fair meaning and context an intention to be tried by the court sitting without a jury." (People v. Martin (1980) 111 Cal.App.3d 973, 982.) While some federal appellate decisions have established that a waiver is valid if the defendant has been specifically informed that 12 members of the community compose a jury, that the defendant can take part in selecting the jury, that the jury verdict must be unanimous, and that the trial court will solely decide guilt or innocence if a jury trial is waived, and while those courts have expressed a strong preference for such a colloquy, the California Supreme Court has declined to adopt such admonitions. Here, Doyle was represented by counsel and made aware of his right to be found guilty beyond a reasonable doubt by a jury or the court, and that he would still have the same rights of cross-examination and to testify at a court trial. There was no requirement that the trial court explain every aspect that Doyle was giving up by entering a jury trial waiver. His waiver was voluntary, knowing, and intelligent.
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/E064557.PDF
Trial court committed structural error by instructing jury that if it found by a preponderance that defendant committed one charged sex offense it could infer he had the propensity to commit the others. During Cruz's trial for committing a number of sex offenses against three different minors, the court instructed the jury that it could find charged offenses true by a preponderance of the evidence and then use those findings to infer that Cruz had a disposition to commit the other charged offenses. The jury convicted him and he appealed. Held: Reversed. Evidence Code section 1108 allows admission of evidence…
Trial court committed structural error by instructing jury that if it found by a preponderance that defendant committed one charged sex offense it could infer he had the propensity to commit the others. During Cruz's trial for committing a number of sex offenses against three different minors, the court instructed the jury that it could find charged offenses true by a preponderance of the evidence and then use those findings to infer that Cruz had a disposition to commit the other charged offenses. The jury convicted him and he appealed. Held: Reversed. Evidence Code section 1108 allows admission of evidence of uncharged sexual offenses to show a propensity to commit sexual offenses. In People v. Villatoro (2012) 54 Cal.4th 1152, 1160, the court held that section 1108 also allows the jury to use evidence of sexual offenses charged in the current case to show a propensity to commit other charged offenses in the same case. There, the jury had been instructed with a modified version of CALCRIM No. 1191 that it had to find the sex offenses true beyond a reasonable doubt to infer propensity from them. Here, however, the court gave CALJIC No. 2.50.01. While the instruction "reflects the Villatoro rule that charged offenses can be used to show propensity . . . unlike the instruction upheld in that case, it does not state that these offenses must be found beyond a reasonable doubt before they can be used for that purpose." It was incorrect to instruct the jury in this way and, "for practical purposes, the instruction lowered the standard of proof for the determination of guilt." Instructional error that has the effect of lowering the reasonable doubt standard for guilt is one of the few errors deemed "structural" and therefore reversible per se. (People v. Aranda (2012) 55 Cal.4th 342, 365.)
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/F069940.PDF
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…
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.]
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…
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, 410411, 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.]