Filed 9/11/17; Modified and Certified for Pub. 10/5/17 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                                  DIVISION SIX


THE PEOPLE,                                              2d Crim. No. B277433
                                                      (Super. Ct. No. 16PT-00501)
     Plaintiff and Respondent,                         (San Luis Obispo County)

v.

DAKOTA BLANCETT,

     Defendant and Appellant.


             Dakota Blancett appeals an order determining him to
be a mentally disordered offender (MDO) and committing him to
the Department of Mental Health for involuntary treatment.
(Pen. Code, § 2962 et seq.)1 We reverse and hold that Blancett's
waiver of the right to a jury trial was not knowing, voluntary, and
intelligent pursuant to the totality of circumstances. (§ 2962,
subd. (b); People v. Daniels (Aug. 31, 2017, S095868) – Cal.5th -, -
[lead opn. of Cuéllar, J.] (Daniels); People v. Sivongxxay (2017) 3



        1   All statutory references are to the Penal Code.
Cal.5th 151, 166 (Sivongxxay); People v. Blackburn (2015) 61
Cal.4th 1113, 1116, 1136 (Blackburn).)
              Prior to conducting a bench trial, the trial court must
obtain personally from an MDO defendant a knowing, intelligent,
and voluntary waiver of the right to a jury trial unless the court
finds substantial evidence that the defendant lacks the capacity to
make such a waiver. (Blackburn, supra, 61 Cal.4th 1113, 1116,
1136.) Here the record is bereft of evidence demonstrating that
Blancett was sufficiently advised of his right to a jury trial and
that he knowingly and voluntarily waived that right.
             FACTUAL AND PROCEDURAL HISTORY
              On April 29, 2014, Blancett pleaded guilty to two
counts of child molestation. (§ 288, subd. (a).) The criminal
offenses occurred in September 2013, when Blancett touched the
genitals of a three-year-old boy and a two-year-old girl. The trial
court sentenced Blancett to a three-year prison term for the two
counts.
              On July 13, 2016, the Board of Parole Hearings
(Board) determined that Blancett was an MDO pursuant to the
criteria of section 2962. As a condition of parole, the Board
required him to accept treatment from the Department of Mental
Health. On July 19, 2016, Blancett filed a petition with the trial
court pursuant to section 2966, subdivision (b) to contest this
decision.
              Prior to the hearing regarding the petition, the trial
court appointed counsel for Blancett. Counsel accepted the
appointment and then immediately requested a court trial:
              “[Counsel]: Yes. We'd like to set it for court trial.
              “The Court: All right. So, Mr. B., [counsel] says that
you are okay with having a judge decide your case and not a jury?




                                  2
              “[Blancett]: Yes, your honor.
              “The Court: That's okay with you?
              “[Blancett]: Yes, your honor.
              “The Court: All right."
This was the only colloquy between the court and Blancett
regarding advisement of his right to a jury trial and the court's
acceptance of a knowing and intelligent waiver.
                       Expert Witness Testimony
              At the hearing, Doctor Angie Shenouda, a forensic
examiner for Atascadero State Hospital, testified that she
interviewed Blancett and reviewed his hospital records and
written MDO evaluations. She concluded that he met the MDO
criteria of section 2962. Specifically, Shenouda opined in part that
Blancett suffers from the severe mental disorder of pedophilia and
that he presents a substantial physical danger to others. To
support her opinion, she pointed out that Blancett lacks insight
into his disorder, had not completed sex offender or substance
abuse treatment, and had no relapse-prevention plan.
                       Written MDO Evaluations
              Doctors J. Kelly Moreno, Christopher G. Matosich,
Stacy McLain, and Craig West, respectively, interviewed Blancett
and reviewed his hospital and medical records in the course of
their evaluations. Moreno and Matosich opined that Blancett met
the MDO criteria of section 2962; McLain and West opined that he
did not.
                      Findings, Order and Appeal
              Following Shenouda's testimony and the trial court's
review of the written MDO evaluations, the court determined that
Blancett met the requirements of section 2962 beyond a




                                 3
reasonable doubt. The court then committed him to the
Department of Mental Health for involuntary treatment.
              Blancett appeals and contends that his waiver of the
right to a jury trial was not knowing and intelligent pursuant to
the totality of the circumstances. (Sivongxxay, supra, 3 Cal.5th
151, 166 [a defendant's waiver of the right to jury trial may not be
accepted by the trial court unless it is both knowing and
intelligent, i.e., made with full awareness of the nature of the right
being abandoned and the consequences of the decision to abandon
it].)
                             DISCUSSION
              Blancett contends that the trial court erred by not
completely advising him of the right to, and the attributes of, a
jury trial prior to accepting his jury trial waiver. (§ 2966, subd. (b)
[“The court shall advise the petitioner of . . . the right to a jury
trial”]; Blackburn, supra, 61 Cal.4th 1113, 1130 [the decision to
waive a jury trial belongs to the defendant “in the first instance”].)
He asserts that the error is reversible per se. (Blackburn, at pp.
1132-1133 [trial court did not advise defendant of his right to a
jury trial or obtain a personal waiver thereof].)
              In Blackburn, supra, 61 Cal.4th 1113, 1124-1125,
1136, our Supreme Court held that a defendant in MDO
recommitment proceedings must be personally advised of the right
to a jury trial, and that any waiver thereof must be personal,
knowing, and voluntary. (§ 2972, subd. (a).) The court reasoned in
part that MDO commitment proceedings are not ordinary civil
actions, but are special proceedings of a civil nature that threaten
the possibility of a significant deprivation of liberty. (Blackburn,
at p. 1124; id. at p. 1134 [MDO commitment scheme is “‘a civil
hearing with criminal procedural protections’”].) Accordingly, “a




                                  4
jury trial is the default procedure absent a personal waiver.” (Id.
at p. 1131.) The court did allow for defendant’s counsel, however,
to “control[] the waiver decision“ in the event of substantial
evidence of defendant’s incompetence. (Ibid.)
              Here Blancett challenged the Board’s determination
that he met the statutory criteria for an initial MDO commitment.
Section 2966, subdivision (b), applicable to initial commitment
proceedings, provides: “The court shall advise the petitioner of his
or her right to be represented by an attorney and of the right to a
jury trial.” The language of sections 2972, subdivision (a)
(recommitment proceedings) and 2966, subdivision (b) is nearly
identical and the statutes should receive the same interpretation
because they embrace the same subject matter. (People v. Tran
(2015) 61 Cal.4th 1160, 1166 [construing parallel language in
section 1026.5].) Therefore, we hold that section 2966, like section
2972, requires the trial court to advise the petitioner in MDO
commitment proceedings of the right to a jury trial and, before
holding a bench trial, to elicit a personal waiver of that right
unless the court finds substantial evidence that the petitioner
lacks the capacity to make a knowing and voluntary waiver.
(Blackburn, supra, 61 Cal.4th 1113, 1116, 1136.)
              In Sivongxxay, supra, 3 Cal.5th 151, our Supreme
Court considered the issue of a knowing and intelligent waiver of
the right to a jury trial in the context of the guilt and penalty
phases of a death-penalty prosecution. The court affirmed that a
knowing, intelligent, and express personal waiver of the jury trial
right is required. (Id. at p. 166.) Resolution of the validity of a
waiver depends upon “‘the unique circumstances of each case.’”
(Ibid., citing Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269,
278.) “Our precedent has not mandated any specific method for




                                 5
determining whether a defendant has made a knowing and
intelligent waiver of a jury trial in favor of a bench trial. We
instead examine the totality of the circumstances.” (Id. at p. 167.)
              Sivongxxay concluded, based upon its specific
circumstances, that the defendant’s waiver was knowing and
intelligent. (Sivongxxay, supra, 3 Cal.5th 151, 167.) Nevertheless,
the court emphasized “the value of a robust oral colloquy” in
eliciting a knowing, intelligent, and voluntary waiver of a jury
trial. (Id. at p. 169.) The court then offered general guidance and
a recommendation that “[g]oing forward” the trial courts advise
defendants of “the basic mechanics of a jury trial in a waiver
colloquy,” including jury selection and jury unanimity. (Ibid.)
Specifically, the court recommended that advisements include
statements that a jury consists of 12 members of the community;
defendant, through counsel, may participate in jury selection; all
jury members must unanimously agree upon a verdict; and, if a
defendant waives the right to a jury trial, the judge alone will
decide guilt or innocence. (Ibid.) The court also recommended
that the trial court take additional steps to ensure that the
defendant comprehends what the jury trial right entails, e.g., ask
defendant whether he has consulted with his attorney, whether
counsel has explained the differences between a jury and a bench
trial, and whether defendant understands the right he is waiving.
(Id. at pp. 169-170.) “Ultimately, a court must consider the
defendant’s individual circumstances and exercise judgment in
deciding how best to ensure that a particular defendant who
purports to waive a jury trial does so knowingly and intelligently.”
(Id. at p. 170.)
              Our review of the record indicates that Blancett did
not waive his right to a jury trial with full awareness of the nature




                                  6
of the right being abandoned and the consequences of the decision
to abandon it. (Sivongxxay, supra, 3 Cal.5th 151, 166.) The trial
court did not inform Blancett that he had a right to a jury trial,
nor did the court explain the significant attributes or mechanics of
a jury trial. (Id. at p. 169.) Neither did the court inquire whether
Blancett had sufficient opportunity to discuss the decision with his
attorney, whether his attorney explained the differences between a
bench trial and a jury trial, or whether Blancett had any questions
about the waiver. (Id. at pp. 169-170.) In a barebones colloquy,
the court asked only if Blancett was “okay” with a court trial
instead of a jury trial. (Daniels, supra, - Cal.5th -, - [lead opn. of
Cuéllar, J.] [p. 55] [“[T]he trial court is not merely a passive
receiver of an attempted waiver”].) Indeed, the court appointed
counsel moments before Blancett entered his waiver and there is
no record of discussion between Blancett and his attorney prior to
the waiver.
             Moreover, this was Blancett’s initial MDO
commitment and the record does not suggest that Blancett was
familiar with MDO proceedings or that he was aware that he was
entitled to a jury trial. Although he pleaded guilty to two counts of
child molestation two years prior to the MDO hearing, we have no
record of the advisements he received before entering that plea.
On this record, we do not presume that Blancett was legally
sophisticated.
             Blackburn, supra, 61 Cal.4th 1113, 1136-1137,
considered the consequences of a trial court’s failure to expressly
advise an MDO of his right to a jury trial. “[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




                                  7
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.” (Id. at
p. 1136.) In view of the trial court’s stark colloquy, the lack of
evidence that Blancett discussed his jury trial right and waiver
with counsel, Blancett’s inexperience with the criminal justice
system, and Blancett’s lack of familiarity with MDO proceedings,
we conclude that his waiver was not knowing and intelligent.
(Daniels, supra, - Cal.5th -, - [lead opn. of Cuéllar, J.] [p. 50] [“[A]
reviewing court satisfies itself of a legitimate waiver only when the
record affirmatively demonstrates it was knowing and
intelligent”]; Sivongxxay, supra, 3 Cal.5th 151, 166.) Blackburn
preceded Blancett’s MDO hearing by one year and the trial court
here could not have reasonably relied upon pre-Blackburn law.
For this reason, the error constitutes a miscarriage of justice and
requires reversal, not a remand for further proceedings.
(Blackburn, at p. 1117.)
             We recognize that Blancett’s initial commitment likely
has expired, but our holding here will pertain to any
recommitment proceedings.
             We need not discuss Blancett’s remaining contentions
in view of this disposition.
             The order is reversed.




                                       GILBERT, P. J.
We concur:


             PERREN, J.                TANGEMAN, J.




                                   8
                     Gayle L. Peron, Judge

           Superior Court County of San Luis Obispo

                ______________________________

            Christopher L. Haberman, under appointment by the
Court of Appeal, for Defendant and Appellant.
            Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven E. Mercer, Acting Supervising
Deputy Attorney General, and Eric J. Kohm, Deputy Attorney
General, for Plaintiff and Respondent.




                               9
Filed 10/5/17
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


THE PEOPLE,                                   2d Crim. No. B277433
                                           (Super. Ct. No. 16PT-00501)
     Plaintiff and Respondent,              (San Luis Obispo County)

v.                                  ORDER MODIFYING OPINION AND
                                       CERTIFYING OPINION FOR
DAKOTA BLANCETT,                            PUBLICATION
                                      [NO CHANGE IN JUDGMENT]
     Defendant and Appellant.




THE COURT:
It is ordered that the opinion filed herein on September 11, 2017,
be modified as follows:
1. On page 1, the following paragraph is inserted at the beginning
of the opinion:
     People v. Blackburn (2015) 61 Cal.4th 1113 holds that a trial
     court must advise a defendant in an MDO (mentally
     disordered offender) recommitment hearing of his or her
     right to a jury trial. We stress that Blackburn means what
     it says and applies to all MDO hearings, including original
     commitment hearings.
2. On page 1, second line of first paragraph, delete “a mentally
disordered offender (MDO)” and insert in its place “an MDO.”
3. On page 2, first line, the citation beginning “People v.
Blackburn (2015) …” is changed to “People v. Blackburn, supra, …”
4. On page 8, the first full paragraph is changed to read:
    We recognize that Blancett’s initial commitment likely has
    expired, but our holding here will pertain to any future
    commitment proceedings.

There is no change in judgment.

The opinion in the above-entitled matter filed on September 11,
2017, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.




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