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Court of Appeal:
Defendant Who Answered ‘Yeah’ Intelligently Waived Jury
Majority Says One-Word Affirmation by Mentally Ill Defendant, Uttered Twice, That He Understood Right
He Was Relinquishing, Sufficed; Dissenter Says There Is Doubt in His Mind As to Validity of Waiver
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 decision, yesterday declined to accede to the Office of Attorney General’s concession of reversible error, holding that an attempted rapist “knowingly, intelligently, and voluntarily” waived the right to be tried by a jury.
In a dissent, Presiding Justice Arthur Gilbert of Div. Six questioned whether the defendant, Billy Patton (identified as “B.P”), actually did understand what was transpiring in the courtroom, given his mental problems. He is a schizophrenic, confined to the Atascadero State Hospital through a commitment as a mentally disordered offender (“MDO”).
Justice Kenneth Yegan wrote the unpublished opinion affirming the commitment order, and was joined by Justice Steven Z. Perren.
Colloquy Quoted
Yegan quoted the jury-waiver before San Luis Obispo Superior Court Judge Michael L. Duffy as follows:
“[Appellant’s Counsel]: Your Honor, I’ve spoken to [appellant] about his jury trial rights, and he’s going to elect to have a court trial and waive his jury trial.
“THE COURT: All right. Mr. [P.], you understand that the question of whether you meet these criteria [the MDO criteria], you have a right to have a jury make that decision. [Counsel] indicates that you understand that right; is that true?
“[Appellant]: Yeah.
“THE COURT: All right. Do you want to waive that right and have a judge make the decision?
“[Appellant]: Yeah.
“THE COURT: Okay. You join, [counsel]?
“[Appellant’s Counsel]: ‘I do, Your Honor.’ ”
The Office of Attorney General conceded error on the basis of its view that Duffy, in taking the jury waiver, did not comply with guidelines set forth in the California Supreme Court’s June 19, 2017 opinion in People v. Sivongxxay, in light of which, it said, “the record fails to reveal affirmative evidence of a knowing and intelligent waiver.”
Cantil-Sakauye’s Opinion
In Sivongxxay, Chief Justice Tani Cantil-Sakauye wrote for the 6-1 majority in affirming a death sentence. Based on the “totality of the circumstances,” she determined that the defendant’s jury waiver was “knowing and intelligent,” but added:
“At the same time, we use this opportunity to emphasize the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial. Although our case law has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver, we observe that many other courts have offered guidance regarding important components of the waiver colloquy.”
Reviewing guidance in earlier cases, she proceeded to “offer some general guidance” herself “to help ensure that a defendant’s jury trial waiver is knowing and intelligent, and to facilitate the resolution of a challenge to a jury waiver on appeal.” She listed some advisements to defendants which “we recommend that trial courts” provide—which Duffy did not—but added:
“[W]e emphasize that our guidance is not intended to limit trial courts to a narrow or rigid colloquy.”
Yegan’s Opinion
Yegan said of Sivongxxay:
“The Supreme Court’s recommendation of an extended jury advisement/waiver colloquy is to be applauded….But the recommendation is not a straitjacket to be used in the pursuit of perfect justice….Matters of reality here confirm that appellant knowingly and intelligently waived his right to a jury trial.”
He observed:
“Considering the totality of the circumstances, we conclude appellant knowingly, intelligently, and voluntarily waived his right to a jury trial….In contrast to the waiver here, in Sivongxxay there was no evidence ‘that defendant had discussed the jury waiver with his counsel.’…It is arguable that, in view of counsel’s statement that he had discussed the jury waiver with appellant, evidence of an intelligent and knowing waiver is stronger here than in Sivongxxay.”
Yegan pointed to Patton’s express affirmation of an understanding of the right he was waiving, and continued:
“Other facts here—appellant’s extensive experience with the criminal justice system, as manifested by his 30-page rap sheet, and the colloquy among the court, counsel, and appellant at the time of the jury waiver—show that appellant understood his right to a jury trial.”
Gilbert’s View
Gilbert questioned the proposition that the length of Patton’s rap sheet reflects a knowing and intelligent waiver, setting forth:
“Although B.P. pleaded guilty to offenses including child molestation prior to the instant MDO hearing, we know nothing about the nature or extent of the advisements, if any, he received before entering earlier pleas….
“The assumption that B.P. knew the significance of a jury waiver assumes he had the capacity to waive jury. His lengthy record renders this assumption seemingly reasonable on one hand, but highly problematic on the other. He is a mentally disordered offender who suffers from schizophrenia. To what extent this may affect his capacity to waive jury I leave to others, but it raises a doubt in my mind.”
Calling for “a limited remand involving the trial court’s inquiry concerning B.P.’s understanding of the nature of a jury trial,” he continued:
“I cannot say whether B.P.’s past jury waivers were affected by his mental illness. Neither can I determine whether those past judicial encounters were fresh in his mind at the time of this hearing.
“B.P. was initially found incompetent to stand trial on the commitment offense. He has a long history of mental health issues dating from his childhood. This history suggests that whatever B.P.’s interaction with the court system in the past, his current jury waiver, ‘yeah,’ said twice over a Zoom hearing, is not reassuring.”
Yegan’s Rejoinder
Yegan made note of Gilbert’s “rejection of appellant’s affirmative response” to Duffy’s question as to whether he understood the right he was waiving, but scoffed that the rejection was based on “speculation” that, because of mental health problems, he actually “did not understand his right to a jury trial.” The justice pointed out:
“No expert testimony or any other evidence was presented on this issue.”
The case is People v. v. B.P., B311051.
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