Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County, No. VMH010688-02, Melinda Myrle Reed, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, Acting P.J.
Keith Clayton Krall appeals from an order of the superior court granting a petition to extend his commitment pursuant to Welfare and Institutions Code section 6500 (section 6500). Appellant contends that the superior court erred by taking his oral waiver of a jury trial without advising him of his right to a jury trial as required by People v. Alvas (1990) 221 Cal.App.3d 1459. Despite the lack of an express advisement on the record, we conclude that the totality of the circumstances demonstrates that appellant’s oral waiver of his right to a jury trial was voluntary and intelligent and, thus, no reversible error occurred.
FACTS AND PROCEEDINGS
Appellant was first admitted to Camarillo State Hospital in 1969 at the age of 12 and has “resided almost continuously in state hospitals and developmental centers” since then.
In October 2008, the prosecution brought a petition to extend appellant’s commitment to the Porterville Developmental Center pursuant to section 6500. The petition alleged appellant was developmentally disabled/mentally retarded and a danger to himself and others.
On Friday, January 9, 2009, the superior court held a readiness conference for the jury trial scheduled to begin the following Monday. Immediately after counsel entered their appearances, the following exchange occurred regarding the jury trial:
“The Court: [Appellant] is here for readiness conference on case number 10688. [¶] Ms. Harrison?
“Ms. Harrison [counsel for appellant]: Your Honor, [appellant] and I have had an opportunity to talk in the hallway. We do want to go forward with trial, but we are going to waive jury, and it is going to be a Court trial. It’s currently set for Monday.
“The Court: Very well. I will allow the jury trial to be waived. [¶] That’s what you want to do; right, [appellant]?
“[Appellant]: Yes.
“The Court: And Ms. Clark, as well?
“Ms. Clark [deputy district attorney]: That’s correct, your Honor.
“The Court: And so the matter will be set for Court trial instead of jury trial on Monday, January 12.”
At the trial, Dr. Diana Vang, an unlicensed psychologist employed by the Porterville Developmental Center for the past year and a half, testified. Based on her interviews with appellant and her review of his previous psychological evaluations and hospitalizations, she stated that, in her opinion, appellant was mentally retarded and presented a danger to himself and others.
Dr. Gilbert Gonzales, a licensed medical doctor employed at the Porterville Developmental Center for the past four years, certified that appellant was mentally retarded and dangerous to himself and others based on his monthly interviews with appellant and his review of appellant’s psychological records. Dr. Gonzales also stated his opinion that appellant had difficulty controlling his dangerous behavior because his mental retardation interfered with his ability to learn from his mistakes.
Appellant was called as a witness by the prosecution. Appellant testified that he had learned much in his treatment and therapy at the Porterville Developmental Center about controlling his anger and diffusing difficult situations.
After taking evidence and hearing argument, the trial court issued its ruling from the bench. It found appellant was mentally retarded and a danger to others. The court committed appellant to Porterville Developmental Center for one year pursuant to section 6500.
In February 2009, appellant filed a notice of appeal.
DISCUSSION
The sole issue presented in this appeal is whether appellant’s oral waiver of his right to a jury trial in the section 6500 proceeding was valid despite the trial court’s failure to advise him of his right to a jury trial before accepting his waiver.
In People v. Alvas, supra, 221 Cal.App.3d 1459, the Court of Appeal concluded that “the right to a jury trial in adult involuntary commitment proceedings is a right of constitutional dimension.… [Citation.]” (Id. at p. 1465.) It reached the further conclusions that “a defendant proceeded against under section 6500 must be advised of his right to a jury trial” and “the record must show an advisement and waiver of the right to a jury trial” before a commitment or recommitment proceeding under section 6500 may be resolved by court trial. (People v. Alvas, supra, at p. 1465.)
In People v. Bailie (2006) 144 Cal.App.4th 841, the court recognized the principle that the failure to advise a defendant of his or her right to a jury trial is not reversible error if the record affirmatively shows that the waiver of the right to a jury trial was voluntary and intelligent under the totality of the circumstances. (Id. at p. 847, citing People v. Howard (1992) 1 Cal.4th 1132, 1175.) Furthermore, the court applied this principle to the right to a jury trial in a section 6500 commitment proceeding. We agree that the totality of the circumstances test should be applied in a section 6500 commitment proceeding where an advisement of the right to a jury trial was not given by the trial court.
Under the totality of the circumstances test, we conclude that appellant voluntarily and intelligently waived his right to a jury trial. First, the trial court obtained an express waiver of a jury trial from appellant. Second, immediately prior to appellant’s express waiver, counsel for appellant represented to the trial court that “we are going to waive jury, and it is going to be a Court trial.” Thus, the record contains an express waiver by both appellant and his attorney.
In addition, the statement by counsel served to inform appellant of the consequence that would result from the waiver of a jury trial—namely, that the matter would be tried before the court instead of a jury. Also, the attorney’s use of the pronoun “we” supports the inferences that the attorney and the appellant reached an agreement between themselves about the waiver. This inference is strengthened by the attorney’s introductory representation that she and appellant “have had an opportunity to talk in the hallway.” The representation implies that the attorney and appellant discussed a jury trial as well as waiving the jury. When all of the attorney’s statements are viewed together, they support the inference that appellant and the attorney discussed the two options and agreed between themselves that a court trial was preferable to a jury trial.
Furthermore, reports available to the trial court indicate that appellant has had many experiences with criminal proceedings and the court system. For example, it appears that appellant entered a plea bargain in 2001 and received five years’ probation. More recently, in 2006, he pled no contest to one count and was sentenced to a three-year bench probation. Although the reports do not state that appellant received a Boykin-Tahl advisement before his pleas were accepted, these cases are relevant to show appellant was experienced in matters of criminal procedure. With respect to appellant’s capacity to understand and act for himself, page 2 of the April 2008 Individual Program Plan attached to the petition as exhibit D states that (1) appellant’s rights were read to him on April 10, 2008, (2) he has an adequate understanding of his rights and no rights are denied at this time, (3) his rights will be read to him annually and as needed, and (4) he currently signs his own consents.
Pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, a defendant’s guilty plea will not be regarded as voluntary and intelligent unless the court first advises the defendant that by entering the plea he or she will be giving up the right to a jury trial, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.
Based on the foregoing evidence, we conclude the record is sufficient to establish that appellant’s oral waiver was voluntary and intelligent.
As a result of this conclusion, we need not address the Attorney General’s argument that trial counsel’s express waiver, standing alone, validly relinquished appellant’s right to a jury trial. (Cf. People v. Givan (2007) 156 Cal.App.4th 405, 410-411 [personal waiver of right to jury trial not required in civil extension proceeding for insane person; insane person who poses a substantial danger of physical harm to others may not veto attorney’s tactical choice for court trial].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, J., POOCHIGIAN, J.