Opinion
2d Crim. No. B281927
11-13-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY R. PITCOCK, Defendant and Appellant.
Gerald J. Miller, 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, Michael C. Keller, Eric J. Kohm, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17PT-00109)
(San Luis Obispo County)
Jerry R. Pitcock appeals an April 11, 2017 judgment, entered after the trial court found appellant to be a mentally disordered offender (MDO) and recommitted him for further treatment. (Pen. Code, § 2972, subd. (c).) Appellant contends, and the Attorney General agrees, that the trial court failed to obtain appellant's waiver of jury trial. (§ 2972, subd. (a).) We reverse and remand for new trial. (People v. Blackburn (2015) 61 Cal.4th 1113, 1130-1131 [decision to waive jury trial belongs to the defendant in the first instance; trial court must elicit waiver from the defendant on the record].)
All statutory references are to the Penal Code. --------
Facts and Procedural History
In 2013, appellant pled no contest to obstructing or resisting an executive officer (§ 69) and was sentenced to two years eight months state prison.
On December 30, 2015, the Board of Parole Hearings (BPH) determined that appellant met the MDO criteria and required treatment. Appellant filed a petition challenging the BPH determination, was found to be an MDO, and appealed. In People v. Pitcock (Sept. 19, 2016, B271079) [nonpub. opn.], we reversed because, among other things, the trial court failed to obtain a jury waiver from appellant. (§ 2972, subd. (a); People v. Blackburn, supra, 61 Cal.4th at pp. 1130-1131.)
Before the matter was retried, the Board of Prison Terms recommitted appellant for further treatment on January 24, 2017. (§ 2966, subd. (c).) Appellant filed a petition challenging the recommitment and, on April 11, 2017, the trial court found that appellant was an MDO and not in remission, and recommitted appellant to the California Department of Mental Health for further treatment. (§ 2972, subd. (c).) The record, however, indicates that appellant did not personally waive his right to jury trial. Although the superior court "CASE SUMMARY" index reflects that appellant purportedly waived jury trial on February 28, 2017, the reporter's transcript indicates that no jury waiver was taken. The absence of a personal waiver of jury trial requires that we reverse and remand for new trial. (People v. Blackburn, supra, 61 Cal.4th at p. 1135; People v. Lin (2017) 15 Cal.App.5th 984, 990; People v. Blancett (2017) 15 Cal.App.5th 1200, 1202.)
Disposition
The judgment is reversed and the matter is remanded for new trial.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J. We concur:
PERREN, J.
TANGEMAN, J.
Michael L. Duffy, 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, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael C. Keller, Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.