Filed 3/23/16 P. v. O’Day CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041099
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC116051)

             v.

JAMES ALLEN O’DAY,

         Defendant and Appellant.



         Appellant James Allen O’Day challenges an order extending his commitment
under Penal Code section 1026.5, after being found not guilty by reason of insanity. He
contends that the trial court erred by failing to obtain a personal waiver of the right to a
jury in the commitment proceeding. After the opening brief was filed, but before the
respondent filed its brief, the California Supreme Court’s decided People v. Tran (2015)
61 Cal.4th 1160 (Tran) which found that personal knowing waivers of the right to jury
trial were required in recommitment proceedings, unless there was substantial evidence
that appellant lacked the capacity to waive that right. In light of Tran, respondent
concedes that the case is properly returned to the trial court for further proceedings. We
agree that the case should be remanded to the trial court, therefore, we will reverse and
remand for further proceedings consistent with Tran.
                       FACTUAL AND PROCEDURAL BACKGROUND
       In 2001, appellant approached a woman on the street and asked for a dollar. When
the woman refused, appellant became angry and slammed her to the ground, causing a
three-inch hematoma on the back of her head. Appellant was found not guilty by reason
of insanity of assault likely to cause great bodily injury, with an allegation that appellant
personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7,
subd. (a).) He was committed to Atascadero State Hospital, and was subsequently
transferred to Napa State Hospital, where he has resided ever since.
       On December 31, 2013, the Santa Clara County District Attorney filed a petition
to extend appellant’s commitment for two years. (Pen. Code, § 1026.5, subd. (b).) On
January 31, 2014, appellant’s attorney advised the trial court that appellant was not
present and waived appellant’s presence. Counsel further advised the court that appellant
had informed him the day before that he wished to waive his right to a jury trial, and
proceed by way of court trial. Nothing in the record reflects any advisement given to
defendant by the court of the right to a jury trial, and there is no evidence that defendant
personally and knowingly waived his jury trial right, or that he lacked the capacity to do
so. The trial court held a bench trial on May 22, 2014.1 On the same date, the court
found the petition true and ordered appellant’s commitment extended for two years.
Appellant filed a timely notice of appeal on June 6, 2014.
                                         DISCUSSION
       On appeal, appellant contends that the order extending his commitment must be
reversed because the trial court failed of to advise appellant of his right to a jury trial and
failed to obtain an express personal waiver. Because of the Supreme Court’s recent
decisions in People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and Tran, supra, 61

       1
          Because we reverse this case on procedural grounds and remand this case for
further findings, we need not address the substantive sufficiency of the recommitment
petition or findings. Therefore, those facts have not been enumerated in this decision.
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Cal.4th 1160, respondent agrees that the case should be returned to the trial court for
further proceedings.
       In Blackburn, the California Supreme Court, granted review of a case from this
court where appellant was ordered recommitted under the Mentally Disturbed Offender
(MDO) statutory scheme (Pen. Code, §§ 2960 et seq), but where counsel waived the
statutory right to jury trial on behalf of the appellant. In reviewing the nature of this
statutory right, the court concluded that the decision to waive the right to a jury trial “belongs
to the defendant in the first instance.” (Blackburn 61 Cal.4th at 1127.) The court found that a

trial court must elicit a “waiver decision from the defendant in a court proceeding unless
it finds substantial evidence of incompetence, in which case counsel controls the waiver
decision.” (Id at p. 1131, emphasis added.) The court went on to hold that “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
only be deemed harmless where “the record affirmatively shows that there was substantial
evidence that the defendant lacked that capacity at the time of counsel’s waiver.” (Id at
pp. 1136-1137, emphasis added.) Similarly, the court held that, “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. [Citations.] In both scenarios, the requirement of an affirmative
showing means that no valid waiver may be presumed from a silent record.” (Id. at
p. 1136.) In so holding, the court rejected the rule previously set forth that counsel
controls the decision to waive a jury trial in an MDO commitment proceeding. (Id. at
p. 1137.)
       Because the record in Blackburn was silent regarding whether Blackburn
knowingly and voluntarily waived his right to a jury trial, the court declined to infer from
                                                3
the circumstances that it was knowing or voluntary. (Blackburn, supra. 61 Cal.4th at
p. 1130.) Instead, the court remanded the 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.” The
court held that “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.” (Id. at p. 1137.)
       In Tran, the court expanded its reasoning in Blackburn to the nearly identical
statutory scheme for extending the involuntary commitment of a person originally found
not guilty by reason of insanity (NGI) of a criminal offense. (Tran, supra. 61 Cal.4th at
p. 1163.) The court explained that remand for further proceedings is appropriate in all
cases presently on direct appeal where the record does not reveal whether an NGI
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. (Id. at p. 1170.) The record here shows
only that counsel waived the right to jury trial on the appellant’s behalf. There is no
evidence that the waiver was knowing and voluntary or that appellant lacked the capacity
to make such a waiver. Therefore, we must remand this case to the trial court so that the
district attorney may submit evidence, if any, that appellant 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 appellant made a knowing and voluntary waiver, or if it finds substantial
evidence that appellant lacked the capacity to make a knowing and voluntary waiver at
the time of counsel’s waiver, then the court shall reinstate the extension order.


                                              4
                                     DISPOSITION
      The order of recommitment is reversed. The matter is remanded to the trial court
for further proceedings consistent with opinion and with Tran, supra, 61 Cal.4th 1160.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




People v. O’Day
H041099

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