Opinion
2d Crim. No. B301386
06-25-2020
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS BRATCHER, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 19PT-00795)
(San Luis Obispo County)
Nicholas Bratcher appeals from the trial court's order recommitting him for treatment as a mentally disordered offender (MDO). He contends his waiver of jury trial was not knowing, intelligent, and voluntary. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2014, Bratcher was sentenced to prison for second degree robbery. In 2018, the Board of Parole Hearings (the Board) determined that he met the criteria for treatment as an MDO, and he was committed for treatment. (Pen. Code, § 2962.) In July 2019, the Board again determined that he had a severe mental disorder that was not in remission or could not be kept in remission without treatment. Bratcher filed a petition requesting a court hearing as to whether he met the criteria for recommitment as an MDO. (§ 2966, subd. (c).)
All subsequent statutory references are to the Penal Code. --------
When Bratcher appeared in court with his attorney, the following exchange occurred:
"[Court]: How would you like to proceed?
"[Counsel]: I have talked with Mr. Bratcher, and he and I would both like to waive jury and set this for a court trial. Please.
"[Court]: Mr. Bratcher, your attorney is indicating you would like to set this for a court trial. A court trial is where the judge would hear the evidence instead of a jury. [¶] If you were to have a jury trial, that means 12 people from the community would listen to the evidence and decide whether or not to grant your petition. It would be 12 people that your attorney would help select. [¶] Do you understand your right to a jury trial?
"[Bratcher]: Yes, sir.
"[Court]: Do you wish to give up and waive that right, sir?
"[Bratcher]: Yes, sir.
"[Court]: All right. I'll find a knowing, intelligent, voluntary and freely given waiver. [¶] So we will set it for a court trial."
At the ensuing court trial, forensic psychologist Dr. Meghan Brannick testified that Bratcher had a severe mental disorder that could not be kept in remission without treatment, his disorder was a cause or an aggravating factor of his qualifying offense, and he represented a substantial danger of physical harm to others by reason of his severe mental disorder. The court agreed and recommitted Bratcher for treatment. (§ 2972, subd. (c).)
DISCUSSION
"A mentally disordered offender may be involuntarily committed at three different stages: as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), and following release from parole (§§ 2970, 2972)." (People v. Blackburn (2015) 61 Cal.4th 1113, 1122 (Blackburn).) Bratcher challenges his commitment at the second stage, where the parolee may file a petition to challenge whether they have a severe mental health disorder that is not in remission or cannot be kept in remission without treatment, and, by reason of that disorder, represents a substantial danger of physical harm to others. (§ 2966, subd. (c).)
In such cases, "[t]he court shall advise the petitioner of the right to be represented by an attorney and of the right to a jury trial. . . . The trial shall be by jury unless waived by both the person and the district attorney." (§ 2966, subd. (b).) Because there is no showing that Bratcher lacked the capacity to make a knowing and intelligent waiver, the trial court was required to obtain his personal waiver. (Blackburn, supra, 61 Cal.4th at p. 1125.) Failure to obtain a valid jury waiver in an MDO case is reversable per se. (Id. at pp. 1132-1134.)
A waiver of jury trial must be knowing, " 'that is, "'"made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,"'" as well as voluntary "'" in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception."'"' [Citation.]" (People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).)
"The voluntariness of a waiver is a question of law which appellate courts review de novo." (People v. Panizzon (1996) 13 Cal.4th 68, 80 [waiver of appeal].) We examine the totality of the circumstances to determine whether a jury waiver is free and voluntary. (Sivongxxay, supra, 3 Cal.5th at p. 167; People v. Blancett (2017) 15 Cal.App.5th 1200, 1205 (Blancett).)
Sivongxxay offered "general guidance" for jury waivers in criminal cases. (Sivongxxay, supra, 3 Cal.5th at p. 169.) These principles also apply to MDO proceedings. (Blancett, supra, 15 Cal.App.5th at pp. 1205-1206.) Sivongxxay "recommend[ed]" a jury trial waiver colloquy include the following advisements: "(1) a jury is made up of 12 members of the community; (2) a defendant through [their] counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide [their] guilt or innocence." (Sivongxxay, at p. 169.) Among "additional steps" the court can take is determining whether the defendant discussed the waiver with counsel. (Ibid.) The "guidance" in Sivongxxay "is advisory," and "a trial court's adaptation of or departure from the recommended colloquy in an individual case will not necessarily render an ensuing jury waiver invalid." (Id. at p. 170.)
Like the advisement upheld in Sivongxxay, Bratcher was not advised that the jury verdict must be unanimous. Our Supreme Court has "never insisted that a jury waiver colloquy invariably must discuss . . . the unanimity requirement." (Sivongxxay, supra, 3 Cal.5th at p. 168.) And as in Sivongxxay, the failure to inquire "whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial" (id. at p. 170) did not necessarily invalidate the waiver (id. at p. 167).
We conclude that under the totality of the circumstances, Bratcher's waiver was knowing, intelligent, and voluntary. The jury waiver here is not like the "barebones colloquy" in Blancett, supra, 15 Cal.App.5th at page 1207 in which the defendant agreed he was "'okay with having a judge decide [his] case and not a jury'" (id. at p. 1203). Nor is it like the waiver found deficient in People v. Jones (2018) 26 Cal.App.5th 420, 435, in which, following "some discussion" with her attorney, the defendant acknowledged that she wished to waive jury and have the case decided by the judge sitting alone. Here, Bratcher was advised a judge would hear the evidence instead of a jury, that a jury consists of 12 people from the community who would listen to the evidence and decide whether or not to grant the petition, and that his attorney would help select the jurors. He acknowledged that he understood his right to a jury trial, and explicitly waived that right. Counsel stated that he talked to Bratcher, and they both wanted to waive jury and set it for a court trial. We conclude that under the totality of the circumstances, this was sufficient.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Dodie A. Harman, Judge
Superior Court County of San Luis Obispo
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.