Filed 3/23/16 P. v. Mortimer CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037530
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 190802)

             v.

PETER FREIDERICH MORTIMER,

         Defendant and Appellant.



         This case is before us after being returned from the Supreme Court with orders to
vacate our decision in People v. Mortimer (2013) 215 Cal.App.4th 860, affirming the
order committing the defendant for an additional year, and to reconsider the cause in light
of People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and People v. Tran (2015)
61 Cal.4th 1160 (Tran). After the Supreme Court returned the case to this court,
appellant Peter Freiderich Mortimer filed a supplemental brief asking that this court
reverse the commitment order outright and order appellant released, instead of remanding
the matter for further proceedings at the trial court. Respondent has not filed a
supplemental response brief. Pursuant to Blackburn, and Tran, we decline to reverse the
order of commitment and immediately release appellant, but will remand the matter to the
trial court for further proceedings to determine whether appellant knowingly waived his
right to jury trial or whether there was sufficient evidence to support the finding that
appellant lacked the capacity to personally waive this right.
                       FACTUAL AND PROCEDURAL BACKGROUND
        In 1996, appellant was found not guilty by reason of insanity (NGI) of assault
with a deadly weapon, battery on a peace officer, and resisting arrest. (Pen. Code,
§§ 148, subd. (a), 242, 243, subd. (b), 245, subd. (a)(1).) The trial court committed him
to the Department of Mental Health (Department) for treatment at Napa State Hospital
(Pen. Code, § 1026.5, subd. (a).)1 The trial court had extended his commitment multiple
times, when on May 18, 2011, the Santa Clara County District Attorney filed a petition to
extend it again. (Pen. Code, § 1026.5, subd. (b).) Prior to trial, defense counsel advised
the court that appellant wanted a bench trial. On October 20, 2011, after a bench trial, the
court sustained the petition and extended appellant’s commitment to December 5, 2013.
Appellant filed an appeal in this court, arguing that the trial court violated his
constitutional and statutory rights by failing to advise him of his right to a jury trial, and
conducting a bench trial without obtaining his express, personal waiver. This court, in a
published decision, affirmed the order, holding that the statutory scheme does not require
a personal jury waiver. Rather, we concluded that counsel could waive a jury trial at a
client’s direction, with his or her consent, or on behalf of a client who is not sufficiently
competent to do so. The Supreme granted review and held the case pending resolution of
Blackburn and Tran. The Supreme Court has now returned the case to this court with
directions to reconsider the cause in light of those two cases.
                                         DISCUSSION
       In Blackburn, the California Supreme Court, granted review of a case from this
Court where appellant was ordered recommitted under the Mentally Disturbed Offender
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

       1
        For a full recitation of the facts, please see this court’s opinion in People v.
Mortimer. (H037530, filed Apr. 25, 2013, previously published at (2013) 215
Cal.App.4th 860, review granted and ordered depublished Aug. 13, 2013.)
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right, the court concluded that the decision to waive the right to a jury trial “belongs to the
defendant in the first instance.” (Blackburn, supra, 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.) 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
p. 1136, 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. [Citation.]”
(Id. at pp. 1136-1137.) 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
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
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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 extended its reasoning in Blackburn to the
nearly identical statutory scheme for extending the involuntary commitment of a person
originally committed after pleading not guilty by reason of insanity (NGI) to a criminal
offense. (Tran, supra, 61 Cal.4th at p. 1163.)
       The Supreme Court has returned this case to us with directions to reconsider it in
light of the decisions in Blackburn and Tran. As was the case in Tran, we previously
held in the instant case that counsel properly waived the right to jury trial on appellant’s
behalf. In both of those cases, the Supreme Court directed us to remand the matters to
the trial court “to find by a preponderance of the evidence that the appellant made a
knowing and voluntary waiver,” or if it found “substantial evidence that [he] lacked that
capacity at the time of counsel’s waiver,” then the trial court was directed to reinstate the
extension order.” (Blackburn, supra, 61 Cal.4th at p. 1137.) When the instant matter
was returned to this Court, appellant filed a supplemental brief arguing that returning this
case to the trial court, in this instance, would be a waste of judicial resources. In his
supplemental brief, the appellant urges us to reverse the commitment order outright,
without remanding the case to the trial court for the findings specified in Tran and
Blackburn.
       Appellant contends that under Tran and Blackburn reversal of the commitment
order is automatic, without need to remand to the trial court for factual findings, unless
two exceptions apply: 1) there is ambiguity regarding the advisement and exercise of the
right to jury trial, and 2) the record is silent as to whether the defendant lacked capacity
to make a waiver. Here, appellant argues, there is clear evidence that appellant was not
advised of his right to jury trial. In fact, according to appellant, the Attorney General
conceded in the original appeal that appellant was not advised of his right to jury trial.
Further, appellant claims that instead of being silent, the record is replete with evidence
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that he did not lack the capacity to make the waiver. Appellant claims that several facts
support this conclusion: first, that he attended the entire trial, without interrupting or
disrupting the proceedings; second, that his records from Napa State Hospital support the
conclusion that he had sufficient mental capacity to make a proper waiver. He contends
that this case differs from both Tran and Blackburn in that the record is not silent on the
lack of advisement, the lack of a knowing and voluntary waiver, or his mental capacity.
In effect, appellant asks us to find that he was not advised of his right to jury trial, and
neither made a proper waiver, nor lacked the capacity to do so.
       By asking this court to make factual findings in the place of the trial court,
appellant misconstrues the directives of the Supreme Court. Although the Supreme Court
could have dissected the record to evaluate both the question of the waiver and capacity,
it expressly declined to do so. Instead, it 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 [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.”
(Blackburn, supra. 61 Cal.4th at p. 1137.) Even if the evidence were clear here, that the
trial court failed to advise the appellant of his right to jury trial, the Supreme Court
anticipated allowing the district attorney an opportunity to submit further evidence
regarding waiver and capacity, and directed us to remand the matters to the trial court so
that the trial court and not this court could make the necessary findings by a
preponderance of the evidence and either reinstate the order, or vacate it based on its
factual findings. (Id. at p. 1137.) Given this express directive by the Supreme Court to
allow further proceedings in the trial court, we cannot make the findings that appellant
requests in order to reverse the commitment order outright.


                                        DISPOSITION


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      The order of recommitment is reversed. The matter is remanded to the trial court
for further proceedings consistent with Blackburn, supra, 61 Cal.4th 1113 and Tran,
supra, 61 Cal.4th 1160.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




People v. Mortimer
H037530

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