Lead Opinion
Opinion
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.” (Pen. Code, § 2972, subd. (a) (hereafter section 2972(a)).) We granted review to decide whether a trial court must advise the defendant personally of his or her right to a jury trial and whether the trial court must obtain a personal waiver of that right from the defendant before holding a bench trial to extend the defendant’s commitment as a mentally disordered offender.
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-y ear-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 section 2972(a) “imposes a mandatory duty” on the trial court to advise the defendant and “reflects a legislative intent to judicially ensure that ‘the person’ knows that he or she has the right to a jury trial.” (All subsequent statutory references are to the Penal Code unless otherwise indicated.) The Court of Appeal found that the trial court had not advised Blackburn of his right to a jury trial, but held that the omission was harmless because it was not reasonably probable Blackburn would have obtained a more favorable result had he been advised of his right to a jury trial.
The Court of Appeal further held that section 2972(a) does not require personal waiver of the right to a jury trial. However, the court said, because the purpose of the jury trial advisement is “to inform the MDO of the right to a jury trial so that he or she can decide whether to waive it,” section 2972(a)’s waiver requirement cannot reasonably be read to give counsel “exclusive control” over the decision whether to waive a jury trial. Instead, the court explained, counsel may waive a jury trial only “at the MDO’s direction or with his or her knowledge and consent,” or “over an MDO’s objection when the circumstances cast reasonable doubt on the MDO’s mental capacity to determine what is in his or her best interests.” The court found that because counsel had likely informed Blackburn of his rights and there was no indication he disagreed with counsel’s decision to waive a jury trial, Blackburn could not meet his burden to show error. Further, even if Blackburn could establish error, he could not establish prejudice in light of Dr. Perry’s uncontested adverse testimony.
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)
II.
“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty . . . .” (Addington v. Texas (1979)
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)
In In re Gary W. (1971)
In People v. Masterson (1994)
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,
Thus, Masterson focused on the particular statutory scheme and nature of the “ ‘special proceeding’ ” at issue. (Masterson, supra,
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)
A mentally disordered offender may be involuntarily committed at three different stages: as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), and following release from parole (§§ 2970, 2972). (See Lopez, supra, 50 Cal.4th at pp. 1061-1062.) At issue in this case is the third stage.
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. (§ 2970.) Section 2972(a) sets forth the procedures applicable to a hearing on such a petition. Its full text, with italics identifying the two sentences central to this dispute, reads: “The court shall conduct a hearing on the petition under Section 2970 for continued treatment. 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 for the person shall be given a copy of the petition, and any supporting documents. The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable. [¶] The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney. The trial shall commence no later than 30 calendar days prior to the time the person would otherwise have been released, unless the time is waived by the person or unless good cause is shown.” (§ 2972(a), italics added.) The same protections apply to a hearing in the superior court on a petition challenging an MDO
B.
We review de novo questions of statutory construction. (Imperial Merchant Services, Inc. v. Hunt (2009)
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.” (§ 2972(a).) The meaning of this text is unambiguous. The court must advise the defendant of the right to counsel and the right to a jury trial. And the court must make this advisement to “the person,” not to his or her attorney. This plain meaning is confirmed by the very next sentence of section 2972(a), which distinguishes between “the person” and his or her “attorney.” (Ibid. [“The attorney for the person shall be given a copy of the petition, and any supporting documents.”].)
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 (§ 2972, subd. (b)), the Attorney General’s view would suggest that the Legislature intended the advisement provision to apply only when a defendant chooses to represent himself or herself and is sufficiently competent to do so. We find this narrow inference of legislative intent improbable in light of the statute’s unqualified directive.
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 section 2972(a) requires. This omission was error.
C.
We next address whether section 2972(a)’s waiver provision requires an MDO defendant to personally waive his or her right to a jury trial before the court may hold a bench trial. We again 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, supra, 51 Cal.4th at pp. 529-530.) The waiver provision says: “The trial shall be by jury unless waived by both the person and the district attorney.” (§ 2972(a).)
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)
1.
Several considerations suggest that section 2972(a) gives the defendant, not counsel, primary control over the waiver decision. First, as explained above, the first two usages of “the person” in section 2972(a) refer specifically to the defendant and cannot be read to mean “the defendant or his or her attorney.” The third usage of “the person” in section 2972(a) appears in the waiver provision, and “it is generally presumed that when a word is used in a particular sense in one part of a statute, it is intended to have the same meaning if it appears in another part of the same statute.” (People v. Dillon (1983)
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,
Third, we note that in various provisions other than those describing trial procedures in sections 2966(b) and 2972(a), the MDO statute distinguishes between “the person,” “the patient,” or “the prisoner” and his or her attorney or representative. (See §§ 2964, subd. (a) [when an MDO defendant returns to a facility, a hearing must be held within 15 days “unless the patient or the patient’s attorney agrees to a continuance”], 2964, subd. (b) [“the prisoner or any person appearing on his or her behalf’ can request the appointment of psychological professionals], 2966, subd. (a) [same], 2972.1, subd. (c)(1)
The Court of Appeal contrasted section 2972(a) with Welfare and Institutions Code section 1801.5, which provides for a trial by jury in proceedings to extend the commitment of a juvenile who is “physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior,” unless the right is “personally waived.” (Italics added.) The court concluded that, since the Legislature used the phrase “personally waived” in Welfare and Institutions Code section 1801.5, but not in section 2972(a), it must not have intended section 2972(a) to require a personal waiver. But two considerations argue against an inference that the Legislature intended the waiver procedures for juvenile offenders to be different from those for adult mentally disordered offenders.
First, the legislative history of Welfare and Institutions Code section 1801.5 suggests that the Legislature did not intend the language of personal waiver to be a departure from the requirements in existing civil commitment statutes. The original language of section 1801.5, enacted in 1971, provided for a right to a jury trial but did not include any mention of personal waiver. (Stats. 1971, ch. 1680, § 1, p. 3606.) When the phrase “personally waived” was added in 1998 (Stats. 1998, ch. 267, § 2, p. 1181), the legislative commentary noted: “This bill’s provisions are modeled on, and are analogous to, procedures used for MDOs and [sexually violent predators].” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 2187 (1997-1998 Reg. Sess.) as amended Apr. 28, 1998, p. 7.) The Legislature thus adopted the current scheme for committing dangerous juvenile offenders on the understanding that its procedures were “modeled” on those in the MDO scheme. (Ibid.)
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,
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.” (§ 2960.) “The term ‘severe mental disorder’ means an illness or disease or condition that substantially impairs the person’s thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely.” (§ 2962(a)(2).) In light of this definition, we presume the Legislature was aware that many MDO defendants lack the capacity to make knowing and voluntary waivers of their right to a jury trial, and we doubt the Legislature intended to require courts to obtain a jury trial waiver from such persons. Indeed, assigning that decision to a person who is unable to exercise it competently would undermine the purpose of the advisement and waiver provisions, for those provisions are intended to ensure that the person makes a knowing and voluntary choice about whether to waive a jury trial. (See Pate v. Robinson (1966)
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,
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 § 2970 [extension petition for an MDO defendant in a state hospital must be accompanied by a written medical evaluation finding that the defendant suffers from a severe mental disorder that “is not in remission or cannot be kept in remission” without treatment].) A similar inference led this court to conclude that counsel, in making fundamental litigation decisions, may override the wishes of a criminal defendant facing a competency hearing (Masterson, supra,
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,
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.” (§ 2960; see § 2972, subd. (f) [declaring “affirmative obligation on the treatment facility to provide treatment”].) Although a petition for extended commitment must be supported by an evaluation finding that the defendant’s severe mental disorder “is not in remission or cannot be kept in remission without treatment” (§ 2970, subd. (a)), we have recognized that “[t]he ‘cannot be kept in remission without treatment’ standard can ... be found when a person ‘has not voluntarily followed the treatment plan’ during the year prior to the commitment or recommitment proceeding.” (In re Qawi, supra,
We thus observe that the Legislature placed control of the decision to waive a jury trial in “the person” (§ 2972(a)), even as we infer that the Legislature did not intend the decision to be made by a defendant who lacks the capacity to make a knowing and voluntary waiver. In reconciling these objectives, a trial court need not conduct a full-blown competency hearing. The statute does not expressly provide for such a hearing, and we are mindful of “the ‘ “administrative burdens” ’ and ‘practical difficulties’ of demanding new procedures.” (Barrett, supra,
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 section 2972(a) does not require the trial court to obtain a personal waiver from the defendant. Rather, waiver by counsel must be “at the MDO’s direction or with the MDO’s knowledge and consent” unless “the circumstances cast reasonable doubt on the MDO’s mental capacity to determine what is in his or her best interests.” The Court of Appeal declined to find error in this case, explaining that because counsel waived Blackburn’s presence at every pretrial hearing, the trial court could “reasonably expect counsel to discuss all pertinent matters that will arise or that have arisen in pretrial hearings, including the right to a jury trial and whether to have one.” The Court of Appeal added that “this was not the first extension of defendant’s MDO commitment, and the record does not suggest that defendant was unaware of his right to a jury trial notwithstanding the lack of a judicial advisement. Nor does the record suggest that defendant was unaware that counsel intended to waive a jury and had done so or that defendant wanted a jury trial and objected (or would have objected) to counsel’s waiver.”
Unlike the Court of Appeal and our concurring and dissenting colleagues (cone. & 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 section 2972(a)’s advisement and waiver provisions. By providing a right to counsel for MDO defendants facing extended commitment, the Legislature enacted section
3.
Our holding today is consistent with the result, if not the reasoning, of People v. Otis (1999)
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,
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)
The latter rule is consistent with the language of California Constitution, article VI, section 13, whose phrase “miscarriage of justice” encompasses not only errors affecting the outcome of the case, but also certain procedural errors that may or may not have affected the outcome. As this court explained in People v. O’Bryan (1913)
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,
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)
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,
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 section 2972, the Legislature was cognizant of these consequences and sought to afford defendants in MDO commitment proceedings various procedural protections to which criminal defendants are entitled, including the right to a jury trial, the right to a unanimous jury verdict, and the right to be committed by proof beyond a reasonable doubt. (Ante, at p. 1122.) Accordingly, the MDO commitment scheme is best understood as “a civil hearing with criminal procedural protections” (Montoya, supra,
In urging the applicability of Watson’s harmless error test, the Attorney General relies on People v. Epps (2001)
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 California Constitution, article VI, section 13. But Epps’ s brief treatment of harmless error did not discuss or purport to abrogate our settled law distinguishing between errors that are and are not automatically reversible under article VI, section 13. (See People v. Anzalone (2013)
Epps and Breverman, along with People v. Wims (1995)
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 section 2972(a). As in Lightsey, the error here is one “ ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” (Lightsey, supra,
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)
V.
As noted, our decision today rejects the rule previously set forth in Otis, supra,
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.
Concurrence Opinion
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 Penal Code section 2972, subdivision (a), the error requires automatic reversal. (Maj. opn., ante, at p. 1136.) In a companion case filed today, we adopt the same reversal rule when a trial court errs in denying a defendant found not guilty by reason of insanity (NGI) the right to a jury trial under Penal Code section 1026.5, subdivision (b). (People v. Tran (2015)
The Chief Justice dissents from these holdings, observing that “as a general matter” article VI, section 13 of the California Constitution (section 13) as
Section 13 says: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or 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.” The text does not say an appellate court may reverse a judgment only when an error affected the outcome. Instead, the text says a judgment may not be reversed unless an error resulted in a “miscarriage of justice.” (§ 13.) To the extent that the conception of justice embodied in our state Constitution encompasses concerns beyond the outcomes of cases, section 13 contemplates that some errors are reversible on grounds other than their likely effect on the outcome of a particular case.
The legislative history of section 13 confirms the meaning that the text implies. Section 13 was adopted in 1966 as part of a general reorganization of the California Constitution. It derives from former article VI, section 4 1/2 (former section 4 1/2), which was added to the California Constitution in 1911 when the voters approved Senate Constitutional Amendment No. 26. Before the addition of former section 4 1/2, appellate courts had restricted their role to reviewing pure questions of law. They did not review the facts underlying judgments to determine whether they supported a conviction in spite of an error at trial. (Ballot Pamp., Special Elec. (Oct. 10, 1911) argument in favor of Sen. Const. Amend. No. 26, p. 12 (1911 Ballot Pamphlet).) Consequently, most trial errors were reviewed under the functional equivalent of an automatic reversal rule. The addition of former section 4 1/2 to the California Constitution changed the role of appellate courts by requiring review of “the entire cause including the evidence” and permitting reversal only after finding a “miscarriage of justice.”
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)
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)
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,
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)
In People v. Collins (2001)
Finally, and most recently, our unanimous opinion in People v. Lightsey (2012)
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 section 13, nor did it purport to do so. As Watson itself and our cases before and after Watson have recognized, section 13 has always meant that certain errors automatically constitute miscarriages of justice and require reversal. The reason was best stated in O’Bryan, which I quote again: “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.” (O’Bryan, supra,
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)
Concurrence Opinion
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.” (Cal. Const., art. VI, § 13 (hereafter article VI, section 13).) Notwithstanding this explicit state constitutional provision generally eschewing the application of an automatic or reversible per se harmless error standard to state law error, today’s opinion, for the first time, holds that an automatic reversal rule should apply to the trial court’s failure to advise a defendant in a mentally disordered offender (MDO) commitment extension proceeding of the statutory right to a jury trial and to obtain the defendant’s personal waiver of a jury trial. It does so on the theory that such errors always constitute “a miscarriage of justice” because the errors assertedly totally denied defendant the right to a jury trial. (Maj. opn., ante, at pp. 1132-1134.)
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 article VI, section 13. Whether or not the total denial of the right to a jury trial in such a proceeding invariably constitutes a miscarriage of justice, describing the errors in this case as the total denial of a jury trial is inaccurate and gives a misleading impression regarding the nature and severity of the actual errors at issue here. This matter is a civil commitment proceeding, not a criminal prosecution, and this is not a case in which a defendant who expressed a wish to be tried by a jury was wrongfully denied that request and was required to face trial by the court. Nor is it a case in which an unrepresented defendant, unaware of the right to be tried by a jury, was left in the dark and subjected to a court trial while ignorant of his or
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” (art. VI, § 13) that calls for automatic reversal of a judgment without regard to the actual effect of the error on the fairness of the proceeding or the outcome of the case. Contrary to the majority’s claim, these are not the types of errors whose prejudicial effect defies detection or measurement. Instead, when a defendant’s counsel has concluded that it is in the defendant’s interest to be tried by the court rather than a jury, it will often be possible to realistically assess whether it is reasonably probable that the defendant, if personally advised of the right to a jury trial in an MDO commitment extension proceeding and asked whether he or she waives that right, would have chosen to be tried by a jury rather than the court. In my view, to require automatic reversal of a judgment for these types of procedural errors, where it is highly unlikely that the defendant was unaware of the right to a jury trial or would have requested a jury trial over his or her counsel’s contrary advice, fails to respect the history and purpose of California’s distinct constitutional harmless error provision. Accordingly, I dissent from this aspect of the majority opinion. And, considering the case as a whole, I believe it is clear that it is not reasonably probable that the trial court errors affected the outcome of this proceeding. Accordingly, I would find the trial court errors harmless under the applicable harmless error standard and would affirm the judgment.
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 article VI, section 13. For the reasons discussed below, I dissent.
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.’ (Cal. Const., art. VI, § 13.) ‘The effect of this provision is to eliminate any presumption of injury from error, and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant. Thus, reversible error is a relative concept, and whether a slight or gross error is ground for reversal depends on the circumstances in each case.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004)
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 article VI, section 13, regardless of how unlikely it may be that the errors actually affected the outcome. (See, e.g., Cahill, supra, 5 Cal.4th at pp. 487-493; see also id. at pp. 501-502 [describing this category as involving “fundamental ‘structural defects’ in the judicial proceedings, analogous to those to which the United States Supreme Court referred in [Arizona v. Fulminante (1991)
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 article VI, section 13 and its history and purpose. Relying on case law involving felony criminal prosecutions, the separate concurring opinion concludes that the statutory errors at issue here denied Blackburn “an adequate measure of procedural justice” thereby depriving him of his right to a jury trial. (Cone. opn. of Liu, J., ante, at p. 1142.)
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 article VI, section 13, a court may not presume that these types of statutory errors are prejudicial. Instead, it must undertake a realistic examination of all the circumstances to determine whether it is reasonably probable that the errors affected the outcome of the case. (People v. Breverman (1998)
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)
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)
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)
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 article I, section 16 of the California Constitution, which declares that “ ‘[a] jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.’ ” (Ernst, supra,
Similarly, in Epps, supra,
The majority seems to find significance in the fact that section 2972 affords defendants in MDO commitment proceedings protections “borrowed directly from the criminal context.” (Maj. opn., ante, at p. 1135.) The majority notes that in an MDO proceeding the statute requires a unanimous jury verdict and proof beyond a reasonable doubt. (§ 2972, subd. (a).)
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. Section 2972 itself refers to an MDO commitment proceeding as a “civil hearing.” (§ 2972, subd. (a); see People v. Fernandez (1999)
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)
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.
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)
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,
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 article VI, section 13.
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)
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 article VI, section 13. (See, e.g., People v. Riel (2000)
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)
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.
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,
Today’s majority commits just such a mistake by failing to follow the mandate of article VI, section 13, and holding that the statutory advisement and personal waiver errors at issue here should generally be considered prejudicial per se. Because the errors here do not in themselves constitute a “miscarriage of justice” (ibid.) and are amenable to constitutionally mandated harmless error review under article VI, section 13, I dissent from the majority’s adoption of an automatic reversal rule. And because I believe it is clear that the trial court errors were not prejudicial in this case, I would affirm the judgment.
Notes
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Because the errors in this case were simply the trial court’s failure (1) to personally advise an MDO defendant who was represented by counsel of the right to jury trial and (2) to obtain a personal waiver of that right, there is no need to decide what harmless error standard would apply if an MDO defendant who requested to be tried by a jury was denied that opportunity or if an MDO defendant who was not represented by counsel was not advised of the right to jury trial or asked whether he or she waived that right. There is no reason to prejudge those questions in this case.
The majority also cites People v. Collins (2001)
In addition, and quite significantly, as in Ernst, in Collins the requirement of a valid, express, in-court waiver of a jury trial by the defendant rested on the provisions of article I, section 16 of the California Constitution, a requirement that, as noted above, does not apply in a civil proceeding. In fact, the court’s opinion in Collins specifically relied upon the federal and state constitutional basis of the criminal defendant’s right to a jury in that case in distinguishing its holding from this court’s then-recent decision in People v. Epps (2001)
The opinion in Marshall explained that a jury trial on the special circumstance allegation was required by the applicable statute, not the Constitution. (Marshall, supra,
No case has held that the federal or California Constitution guarantees an individual a right to a jury trial in an MDO proceeding, and it would be difficult to reach such a conclusion. In general, the jury trial provisions of the United States and California Constitutions preserve “the right to trial by jury as it existed at common law . . . and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution.” (People v. One 1941 Chevrolet Coupe (1951)
I note that in People v. Barrett (2012)