THE PEOPLE, Plaintiff and Respondent, v. BRUCE LEE BLACKBURN, Defendant and Appellant.
No. S211078
Supreme Court of California
Aug. 17, 2015.
1113
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.
OPINION
LIU, J.—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.” (
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 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,
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.
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
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 his claims because the issues are recurring and would otherwise evade review. The court held that the language of
The Court of Appeal further held that
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
We granted review in this case and in the companion case of People v. Tran (2015) 61 Cal.4th 1160 [191 Cal.Rptr.3d 251, 354 P.3d 148], which presents similar issues in the context of commitment extension proceedings for persons found not guilty of a criminal offense by reason of insanity (
II.
“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty . . . .” (Addington v. Texas (1979) 441 U.S. 418, 425 [60 L.Ed.2d 323, 99 S.Ct. 1804] (Addington); see Foucha v. Louisiana (1992) 504 U.S. 71, 80 [118 L.Ed.2d 437, 112 S.Ct. 1780]; Humphrey v. Cady (1972) 405 U.S. 504, 509 [31 L.Ed.2d 394, 92 S.Ct. 1048] [commitment to a mental hospital produces “a massive curtailment of liberty“]; People v. Barrett (2012) 54 Cal.4th 1081, 1098 [144 Cal.Rptr.3d 661, 281 P.3d 753] (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 [63 L.Ed.2d 552, 100 S.Ct. 1254] [“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 [152 Cal.Rptr. 425, 590 P.2d 1] [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 apply as a matter of due process to defendants in certain commitment proceedings. (See People v. Allen (2008) 44 Cal.4th 843, 870 [80 Cal.Rptr.3d 183, 187 P.3d 1018] (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 [121 Cal.Rptr. 488, 535 P.2d 352] (Burnick) [requirement of proof beyond a reasonable doubt]; People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373] (Feagley)
In In re Gary W. (1971) 5 Cal.3d 296 [96 Cal.Rptr. 1, 486 P.2d 1201], 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 [149 Cal.Rptr. 491, 584 P.2d 1097]; 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 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. 2953-2954, 2955-2956.) 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 [103 Cal.Rptr.2d 579] (Montoya); see People v. Harrison (2013) 57 Cal.4th 1211, 1229 [164 Cal.Rptr.3d 167, 312 P.3d 88] [“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 [35 Cal.Rptr.2d 679, 884 P.2d 136] (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
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 nature of the criminal proceedings and to assist counsel in a rational manner. (
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
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 [116 Cal.Rptr.3d 530, 239 P.3d 1228] (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.” (
A mentally disordered offender may be involuntarily committed at three different stages: as a condition of parole (
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. (
B.
We review de novo questions of statutory construction. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387 [97 Cal.Rptr.3d 464, 212 P.3d 736].) 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 [74 Cal.Rptr.3d 891, 180 P.3d 935].) 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 [120 Cal.Rptr.3d 531, 246 P.3d 612] (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 [168 Cal.Rptr.3d 710, 319 P.3d 988].)
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 advise the person of his or her right to be represented by an attorney and of the right to a jury trial.” (
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 (
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,
In this case, the record does not indicate that the trial court advised Blackburn of his right to a jury trial as
C.
We next address whether
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, 94-95 [284 Cal.Rptr. 305, 813 P.2d 1335]; 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 [81 P.2d 913];
1.
Several considerations suggest that
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 [119 Cal.Rptr.2d 859, 46 P.3d 335] [purpose of admonitions under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] 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 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
The Court of Appeal contrasted
First, the legislative history of
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
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.” (
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 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.)
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
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 [7 Cal.Rptr.3d 780, 81 P.3d 224], italics added . . .)” (Barrett, at p. 1109.) Thus, the conditions that result from
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.” (
We thus observe that the Legislature placed control of the decision to waive a jury trial in “the person” (
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
Unlike the Court of Appeal and our concurring and dissenting colleagues (conc. & dis. opn., post, at pp. 1143-1144, 1146-1148), 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
3.
Our holding today is consistent with the result, if not the reasoning, of People v. Otis (1999) 70 Cal.App.4th 1174 [83 Cal.Rptr.2d 326] (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 People v. Otis, supra, 70 Cal.App.4th 1174, and People v. 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
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 [17 L.Ed.2d 730, 87 S.Ct. 788].) California‘s harmless error rule is set forth in
The latter rule is consistent with the language of
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
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 [113 L.Ed.2d 302, 111 S.Ct. 1246] (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 [20 Cal.Rptr.2d 582, 853 P.2d 1037] (Cahill)), can entail a “miscarriage of justice” under
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 [34 Cal.Rptr.2d 238, 881 P.2d 298] (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
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
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. 1119.) In enacting
In urging the applicability of Watson‘s harmless error test, the Attorney General relies on People v. Epps (2001) 25 Cal.4th 19 [104 Cal.Rptr.2d 572, 18 P.3d 2] (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
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
Epps and Breverman, along with People v. Wims (1995) 10 Cal.4th 293 [41 Cal.Rptr.2d 241, 895 P.2d 77] (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
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
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. 1131 [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 [5 Cal.Rptr.2d 268, 824 P.2d 1315]; Barrett, supra, 54 Cal.4th at p. 1114 (conc. & dis. opn. of Werdegar, J.) [finding advisement error harmless]; Barrett, 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.
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.
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.
Werdegar, J., Corrigan, J., Cuellar, J., and Kruger, J., concurred.
LIU, J., Concurring.—The court holds that when a trial court errs in completely denying a mentally disordered offender (MDO) the right to a jury trial under
The Chief Justice dissents from these holdings, observing that “as a general matter”
The legislative history of
In the 1911 Ballot Pamphlet, the proposed amendment‘s sponsor, Senator Boynton, said: “The object of this amendment is to enable our courts of last
Shortly after the enactment of former section 4 1/2, our decision in People v. O‘Bryan (1913) 165 Cal. 55 [130 P. 1042] (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.” (165 Cal. 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.” (165 Cal. 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
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 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.” (Ballot Pamp., 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 [131 Cal.Rptr. 782, 552 P.2d 742]; People v. Sarazzawski (1945) 27 Cal.2d 7, 11 [161 P.2d 934]; Vallejo etc. R. R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 553-554 [147 P. 238]; People v. Fleming (1913) 166 Cal. 357, 381 [136 P. 291].) 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 that “the distinction between reversible and
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 [20 Cal.Rptr.2d 582, 853 P.2d 1037], 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 [34 Cal.Rptr.2d 238, 881 P.2d 298], and People v. Breverman (1998) 19 Cal.4th 142, 174 [77 Cal.Rptr.2d 870, 960 P.2d 1094]. (See maj. opn., ante, at pp. 1133-1134.)
In People v. Collins (2001) 26 Cal.4th 297 [109 Cal.Rptr.2d 836, 27 P.3d 726], 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
Finally, and most recently, our unanimous opinion in People v. Lightsey (2012) 54 Cal.4th 668 [143 Cal.Rptr.3d 589, 279 P.3d 1072] 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 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
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
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 [124 L.Ed.2d 182, 113 S.Ct. 2078]), and that right must be observed “even though there
Werdegar, J., Cuellar, J., and Kruger, J., concurred.
CANTIL-SAKAUYE, C. J., Concurring and Dissenting.—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.” (
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
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” (
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 assaulting 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.
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
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.’ (
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
Additionally, Justice Liu‘s separate opinion concurring in 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
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 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
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
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
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 (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 107 S.Ct. 2658]; People v. Concepcion (2008) 45 Cal.4th 77, 81 [193 P.3d 1172, 84 Cal.Rptr.3d 418].) 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. (
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 [48 Cal.Rptr.2d 525, 907 P.2d 373]; People v. Lucky (1988) 45 Cal.3d 259, 282 [247 Cal.Rptr. 1, 753 P.2d 1052]; People v. Robles (1970) 2 Cal.3d 205, 214-215 [85 Cal.Rptr. 166, 466 P.2d 710].) Nonetheless, the governing 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
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. 1135), 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. 1136). 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.)
Even in the limited context in 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, the defendant would have requested a jury trial over counsel‘s advice, or (2) because, even if the record does not affirmatively show that the 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 the 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.
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 [34 Cal.Rptr.2d 238, 881 P.2d 298] (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
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
The majority seems to find significance in the fact that
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.
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 [92 L.Ed.2d 296, 106 S.Ct. 2988], 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.)
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 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 [124 L.Ed.2d 182, 113 S.Ct. 2078] (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. 1135, quoting Sullivan, supra, 508 U.S. at p. 281.) But this reference to Sullivan is inapt.
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, supra, 391 U.S. at p. 149, italics added.) The quote from Sullivan cited by today‘s
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 of that right—are fully amenable to review under the traditional state harmless error standard mandated by
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 [96 Cal.Rptr.2d 463, 999 P.2d 686] (Zamudio), for example, we analyzed the effect of a trial court error under a statute,
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
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.
The case of People v. Lightsey (2012) 54 Cal.4th 668 [143 Cal.Rptr.3d 589, 279 P.3d 1072], 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 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
Chin, J., concurred.