Opinion
2d Crim. No. B301869
05-22-2020
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BRUCE LAVALLE, 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, Blythe J. Leszkay and Kristen J. Inberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18PT-01264)
(San Luis Obispo County)
Richard Bruce Lavalle appeals an order committing him for treatment as a mentally disordered offender (MDO) (Pen. Code, §§ 2962, 2966), following his conviction for making criminal threats (§ 422). We conclude, among other things, that Lavalle made a valid waiver of his right to a jury trial. We affirm.
FACTS
In 2013, Lavalle was arrested after making a death threat. Following his conviction for making criminal threats (§ 422), he was sentenced to a term of seven years eight months in state prison.
In 2018, the Board of Parole Hearings (BPH) determined Lavalle met the criteria for an MDO commitment.
Lavalle filed a petition in the trial court for a hearing to challenge the BPH determination. (§ 2966.) The court appointed counsel to represent Lavalle.
At a January 2, 2019, hearing, Lavalle's counsel told the court that Lavalle would be waiving a jury trial. The court asked Lavalle, "Sir, do you understand what a jury trial is and what a court trial is?" Lavalle responded, "Yes, I do, Your Honor." The court: "And you give up your right to a jury trial to have a court trial?" Lavalle: "Yes, I do."
At the bench trial, the parties stipulated that Lavalle was offered more than 90 days of treatment during the year preceding his scheduled parole release date.
Dia Gunnarsson, a psychologist at Atascadero State Hospital, testified Lavalle suffers from a severe mental disorder, schizophrenia, and has a history of "auditory hallucinations, disorganized thinking, paranoia and persecutory delusions." Lavalle's mental disorder was a factor in the commission of his commitment offense. His disorder was not in remission and could not be kept in remission without treatment. He needs medications for his symptoms "to go into remission."
While at Atascadero State Hospital, Lavalle was "refusing all medications." Gunnarsson said Lavalle admitted that he did not take "any medications while in [the California Department of Corrections and Rehabilitation]." She said he is "a danger [to others] due to his mental illness."
Gunnarsson testified that Lavalle "had no insight into his mental illness or need for treatment." Lavalle does not acknowledge that he has a mental illness.
The trial court found that "the requisite criteria were found to be true" for an MDO treatment commitment.
DISCUSSION
A Valid Waiver of the Right to a Jury Trial
Lavalle contends the record shows that he did not make a valid, "knowing and intelligent waiver" of his right to a jury trial. He claims the MDO commitment order must be vacated. We disagree.
A trial court is required 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." (People v. Blancett (2017) 15 Cal.App.5th 1200, 1205.) The petitioner in an MDO case must "waive his [or her] right to a jury trial with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it." (Id. at p. 1206.)
In Blancett, we reversed an MDO commitment order because we concluded the defendant's waiver of a jury trial was not "knowing and intelligent." (People v. Blancett, supra, 15 Cal.App.5th at p. 1207.) We noted that, "[i]n a barebones colloquy, the court asked only if Blancett was 'okay' with a court trial instead of a jury trial." (Id. at p. 1206.) We stated, "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." (Id. at pp. 1206-1207.)
Lavalle contends, in light of Blancett, a reversal is required. That would have been the case had the trial judge's initial advisement not been improved with a tactful suggestion by the prosecutor. The judge asked Lavalle if he knew what a court trial and a jury trial were.
Lavalle sets out in his opening brief the prosecutor's suggestion, "Your Honor, might the court inquire as to the difference between a jury trial being where 12 people of the community would be-"
The trial judge interrupted the prosecutor, "I just asked him if he knew the difference."
The prosecutor responded, "Well, I think that under the case law, that's marginally adequate."
The trial judge asked, "Well, it's marginally adequate?" The judge made sure it was adequate. Through a series of questions and statements, the judge gave Lavalle a more than "marginally adequate" advisement.
The trial judge asked, "Sir, do you understand what a jury trial is and what a court trial is?" Lavalle: "Yes, I do, Your Honor." The judge: "And you give up your right to a jury trial to have a court trial?" Lavalle: "Yes, I do." The judge then asked, "Do you understand . . . a jury trial is where 12 people from the community would come in and listen to the evidence, decide the case." Lavalle: "Yes, sir, I do." The judge: "And the court trial is where the judge does the same thing?" Lavalle: "Right. I understand that."
We disagree with Lavalle that Blancett is distinguishable from the facts of this case. Unlike Blancett, here the trial court made sure that Lavalle knew the difference between a court trial and a jury trial. This supports a finding that Lavalle made a knowing and voluntary decision to waive a jury trial. " 'No particular language is necessary to waive a jury trial so long as the words employed disclose in their ordinary, common sense, fair meaning and context an intention to be tried by the court sitting without a jury.' " (People v. Doyle (2016) 19 Cal.App.5th 946, 952.)
Moreover, unlike Blancett, here there is evidence that Lavalle discussed his jury trial waiver with his counsel before he made the waiver. Lavalle's counsel told the court, "I have spoken to [Lavalle] about the case. He is prepared to ask the court for a court trial, waiving jury trial." The presence of counsel and the opportunity to obtain advice are significant factors supporting a finding that a waiver was knowledgeable and voluntary. (People v. Doyle, supra, 19 Cal.App.5th at p. 953 ["Here, defendant's counsel advised the trial court she had discussed defendant's waiver of a jury trial with him on two occasions. There is nothing in the record to support that defendant was confused as to the right to a jury trial or that he did not knowingly waive that right"].)
In Blancett, we noted the defendant's "inexperience with the criminal justice system" was a factor supporting the reversal because the waiver was not knowing and intelligent. (People v. Blancett, supra, 15 Cal.App.5th at p. 1207.) Here, by contrast, the People note that Lavalle "was not inexperienced or naïve in regards to the criminal justice system." Lavalle had an extensive prior criminal history. The People also note that he was convicted in 2014 by a jury of the crime of making criminal threats, further evidence showing that he knew what a jury trial was. Lavalle has not shown that the trial court erred by accepting his jury trial waiver.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
TANGEMAN, J.
Matthew G. Guerrero, 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, Blythe J. Leszkay and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.