Opinion
A160974
04-30-2021
Conservatorship of the Person of B.L. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Petitioner and Respondent, v. B.L., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra County Super. Ct. No. P16-00254)
Appellant, B.L., challenges an order of the Contra Costa Superior Court, reappointing the Public Guardian of Contra Costa County (Public Guardian) as conservator of his person pursuant to the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.). B.L. contends the trial court committed reversible error by failing to obtain a valid waiver of his right to a jury trial. We agree and reverse.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
We summarize only the limited facts necessary to our decision in this matter.
On June 2, 2020, the Public Guardian petitioned for reappointment as LPS conservator for B.L., alleging he was gravely disabled and, as the result of a mental disorder, unable to provide for his own basic needs for food, clothing, or shelter. (§ 5008, subd. (h)(1)(A).)
The initial hearing on the LPS reappointment petition was held on July 14, 2020. At the hearing, trial counsel waived B.L.'s appearance, objected to the petition, and the court set a bench trial. After three continuances, the court held a one-day bench trial on September 17, 2020, conducted via Zoom. B.L. appeared remotely from the Crestwood Fremont facility. The minute order from the court trial states B.L. waived his right to a jury trial. During the trial, Contra Costa County Counsel (County Counsel) presented the testimony of Andrew Smith, Psy.D., a clinical psychologist qualified by the court as an expert on psychology and grave disability. At the conclusion of the bench trial, the trial court found B.L. gravely disabled, and granted the LPS reappointment petition as prayed. B.L. timely appealed.
II. DISCUSSION
On appeal, B.L. argues his jury trial waiver was invalid. We agree and reverse.
A. Jury Trial Waivers in Civil Commitment Cases
In LPS proceedings, a proposed conservatee "shall have the right to demand a court or jury trial on the issue of whether he or she is gravely disabled." (§ 5350, subd. (d)(1).) Probate Code section 1828, applicable to LPS proceedings through section 5350, provides: "before the establishment of a conservatorship of the person or estate, or both, the court shall inform the proposed conservatee of . . . [¶]. . . [¶] . . . the right . . . to have the matter of the establishment of the conservatorship tried by jury." (Prob. Code, § 1828, subd. (a)(6).) "The due process clause of the California Constitution requires that proof beyond a reasonable doubt and a unanimous jury verdict be applied to conservatorship proceedings under the LPS Act." (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.)
Section 5350 provides: "The procedure for establishing, administering, and terminating a conservatorship under this chapter shall be the same as that provided in Division 4 (commencing with Section 1400) of the Probate Code, except as follows . . . ." (See Conservatorship of John L. (2010) 48 Cal.4th 131, 144.)
The California Supreme Court has held trial courts must obtain express, personal waivers of the right to a jury trial in recommitment proceedings for mentally disordered offenders (MDO) and defendants who plead not guilty by reason of insanity (NGI). (People v. Blackburn (2015) 61 Cal.4th 1113, 1130 [MDO commitment proceedings] (Blackburn); People v. Tran (2015) 61 Cal.4th 1160, 1167 [NGI commitment proceedings] (Tran).) As the court stated in Blackburn, "the decision to waive a jury trial belongs to the defendant in the first instance, and the trial court must elicit the waiver decision from the defendant on the record in a court proceeding." (Blackburn, at p. 1130; Tran, at p. 1167 [applying same principle to NGI defendants].) Defense counsel may waive the right to a jury trial on behalf of such defendants only where they lack the capacity to make a knowing and voluntary waiver. (Blackburn, at p. 1130; Tran, at p. 1167.)
The same principles apply in LPS proceedings. In Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1251, the trial court accepted a jury trial waiver offered by Kevin A.'s attorney against his client's wishes. Reasoning that the California Supreme Court's holdings in Blackburn and Tran also applied to the LPS proceedings, the appellate court determined the trial court erred by accepting the attorney's waiver. (Kevin A., at pp. 1244, 1248, 1253.)
In Conservatorship of Heather W. (2016) 245 Cal.App.4th 378, 381, 385, the appellate court reversed an LPS reappointment order in a case in which counsel did not request a jury trial, and the court did not advise the defendant of her right. Looking to Blackburn and Tran, the appellate court explained "MDO, NGI, and LPS proceedings have the same underlying goal—protecting the public and treating severely mentally ill persons." (Id. at p. 383.) Because civil commitment impairs liberty interests, "LPS commitment proceedings require the court to obtain a personal waiver of the right to a jury trial from the proposed conservatee." (Ibid.)
In People v. Sivongxxay (2017) 3 Cal.5th 151, 167 (Sivongxxay), the California Supreme Court found a criminal defendant's waiver to be knowing and intelligent because the trial court advised the defendant of his right to a jury trial; his right to participate in jury selection; that 12 people from the community would sit on that jury; and that a waiver of the right would mean the trial judge alone would determine guilt or innocence, as well as any resulting punishment. In making its determination, the court emphasized the "value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial." (Id. at p. 169.)
In People v. Blancett (2017) 15 Cal.App.5th 1200, 1203 (Blancett), the MDO defendant's attorney represented to the trial court that the defendant was " 'okay' " with having a judge, rather than a jury. The trial court then inquired of the defendant, " 'That's okay with you?' " and the defendant responded, " 'Yes, your honor.' " (Ibid.) The appellate court concluded the defendant "did not waive his 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.) Among other problems, the trial court did not explain the attributes or mechanics of a jury trial, inquire whether the defendant discussed his decision with his attorney, ask whether his attorney explained the differences between a bench and jury trial, or ask the defendant if he had any questions about the waiver. (Ibid.) Based on the totality of the circumstances, Blancett found the defendant did not "knowing[ly], voluntar[ily], and intelligent[ly]" waive his right, and reversed the defendant's commitment. (Id. at p. 1202, 1207.)
B. The Colloquy
In determining whether B.L. validly waived his right to a jury trial, we look to whether the trial court conducted a "robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial." (Sivongxxay, supra, 3 Cal.5th at p. 169.) The relevant colloquy follows.
"THE COURT: . . . [¶] Is there anything that we need to talk about before we proceed with evidence?
"[COUNTY COUNSEL]: Your Honor, we should have you take a jury waiver from [B.L.].
"THE COURT: Okay. We haven't done that yet? [¶] . . . [¶]
"THE COURT: . . . [¶] Now, first thing I'd like you to know is that in a case such as this, you do have a right to have a trial by jury instead of having the trial decided by a judge like me. [¶] Do you understand that?
"[B.L.]: I didn't know the circumstances that led to that, but I do understand the proceedings. So . . .
"THE COURT: Okay. Well, do you understand that you could have a jury decide this case if you wanted to?
"[B.L.]: A conservatorship case?
"THE COURT: Yes.
"[B.L.]: I haven't gone into researching anything because I have a conservator because I haven't been sat down and talked to that way. [¶] The only other reason I need the conservator for is if we have a jury, yeah, I can handle that.
"THE COURT: . . . So you understand you could have a jury? This was sent to me today because I was told that you had agreed to have the case heard by a judge instead of a jury. [¶] Do you agree to have this case heard by a judge?
"[B.L.]: Yes, please.
"THE COURT: You do? Okay. [¶] [Counsel for B.L.], are you satisfied with your client's waiver?
"[COUNSEL FOR B.L.]: Judge, I can say it is consistent with my discussion with him previously that he did wish to waive jury. [¶] I'll leave it to the Court as to whether there should be more that's stated on the record. I'm not requiring more. I'm not sure if [County Counsel] believes there needs to be something additional.
"THE COURT: [County Counsel], are you satisfied?
"[COUNTY COUNSEL]: Yes, your Honor. [¶] The case law it just states to explain the difference between a jury and a court decision. But the only difference really I could think of is that the jury would be decided by 12 jurors instead of the judge.
"THE COURT: Right. [¶] I think you made it clear enough, [B.L.]. You said you're willing to have a judge decide your case, correct?
"[B.L.]: Yes.
"THE COURT: Okay. I'm satisfied. We'll go ahead with the court trial."
C. B.L.'s Jury Trial Waiver Was Invalid
The Public Guardian contends "B.L. made a knowingly and intelligent voluntary waiver of his jury trial right." We disagree.
Here, the trial court did not obtain a sufficiently knowing and intelligent waiver from B.L. (See Conservatorship of Heather W., supra, 245 Cal.App.4th at p. 383 [trial court must "obtain a personal waiver of the right to a jury trial from the proposed conservatee"].) The Public Guardian asserts the trial court "gained a satisfactory understanding" that B.L. did not want a jury trial, evidenced by B.L.'s responses of "yes, please" and "yes" when asked by the court if he wanted a judge to decide his case. We are not persuaded.
Contrary to the Public Guardian's contentions, after being asked whether he understood the right to have a jury trial, B.L.'s statements were unclear and indicated a lack of understanding. When the trial court asked B.L. if he understood he had the right to a jury trial, B.L. responded, "I didn't know the circumstances that led to that, but I do understand the proceedings" and "[t]he only other reason I need the conservator for is if we have a jury, yeah, I can handle that." These responses do not demonstrate B.L. sufficiently comprehended "the nature of the right being abandoned and the consequences of the decision to abandon it." (Blancett, supra, 15 Cal.App.5th at p. 1206.)
Moreover, after B.L.'s confused statements, the trial court did not inquire as to his misunderstanding regarding the nature or mechanics of a jury trial. Instead, the court proceeded to ask B.L. if he agreed to have his case heard by a judge, to which B.L. then responded affirmatively with "yes please" and "yes." Because the trial court did not vary its inquiry after B.L.'s initial, confused responses, it logically follows B.L.'s earlier misunderstandings regarding the right were still present when he later provided the court with the affirmative responses.
Attempting to distinguish the present case from the "barebones colloquy" in Blancett, supra, 15 Cal.App.5th at page 1206, the Public Guardian contends the colloquy here demonstrated that the trial court properly advised B.L. of his right. While we acknowledge there is no "rigid formula or particular form of words that a trial court must use in taking a jury waiver," (Sivongxxay, supra, 3 Cal.5th at p. 169), here, the trial court should have conducted a deeper inquiry to ensure B.L was sufficiently informed and aware of his right to have a jury trial. (People v. Jones (2018) 26 Cal.App.5th 420, 436 [reversing judgment in part because trial court did not "take steps to ensure [defendant] 'comprehend[ed] what the jury trial right entails' "].) For example, while the record shows County Counsel stated a jury is made up of 12 community members , the trial court did not inquire further as to whether B.L. was aware that a waiver of a jury trial meant the trial judge alone would decide guilt or innocence; that B.L. "may participate in jury selection" (Sivongxxay, supra, 3 Cal.5th at pp. 169-170); and that "all 12 jurors must unanimously agree in order to render a verdict" (ibid). Similarly, the trial court did not explain the mechanics of a jury trial to B.L. or ask if he had any questions about the waiver. (See Blancett, supra, 15 Cal.App.5th at p. 1206.)
Furthermore, considering B.L.'s confused and disjointed responses, the trial court should have taken additional steps to inquire as to whether counsel had sufficiently informed B.L. of the nature of his right, and determined if further advisements were necessary. The court did not, for example, clarify whether counsel explained to B.L. "the fundamental differences between a jury trial and a bench trial" (Sivongxxay, supra, 3 Cal.5th at pp. 169-170); or ask B.L. directly whether he "had an adequate opportunity to discuss the decision with his . . . attorney" (ibid.) and if he "underst[ood] or ha[d] any questions about the right being waived" (ibid.). As a result, we find the trial court did not take sufficient steps to ensure, on the record, that B.L. understood what the jury trial right entails. (See id. at p. 169.)
The Public Guardian also argues B.L. "forfeited any objection to the validity of his jury trial advisement and waiver, when his attorney did not object at trial." Even though trial counsel did not object, the jury trial right is not subject to waiver absent knowing, intelligent, and voluntary relinquishment of the right. (People v. Collins (2001) 26 Cal.4th 297, 305 & fn. 2; see People v. Daniels (2017) 3 Cal.5th 961, 998 (conc. & dis. opn. of Cuéllar, J.).)
D. The Error Requires Reversal
We conclude that, on this record, the colloquy on which the Public Guardian relies to support the validity of B.L.'s jury trial waiver was insufficiently "robust." (Sivongxxay, supra, 3 Cal.5th at pp. 167, 169.) The need for follow-up questioning is crucial when a proposed LPS conservatee demonstrably shows confusion about the rights he has been asked to abandon, since on the merits the issue to be decided goes to whether the person is severely mentally disabled. Because there was inadequate follow-up when B.L. responded to the court's inquiries with what was essentially gibberish, the jury trial waiver here was not "knowing, voluntary, and intelligent" upon consideration of the totality of the circumstances. (Blancett, supra, 15 Cal.App.5th at p. 1202.) We cannot say this error was harmless. (See Conservatorship of Kevin A., supra, 240 Cal.App.4th at p. 1253, citing Blackburn, supra, 61 Cal.4th at p. 1136; Tran, supra, 61 Cal.4th at pp. 1169-1170.)
Accordingly, we reverse the trial court's order granting the petition for conservatorship. B.L.'s year-to-year conservatorship terminates, by its terms, on July 19, 2021. By the time the remittitur issues in this case, events will be rapidly approaching a date when the calendar has rendered the order under review either moot, or about to become moot within a few weeks or days. We understand, therefore, that as a practical matter, any subsequent trial will occur only if there is a petition for reappointment of the Public Guardian as B.L's conservator for the 2021-2022 year. Our expectation is that the jury trial waiver in any such subsequent trial will take place through question-and-answer directly between the court and B.L., with the court explaining what the right to a jury trial means, what a jury trial entails, and securing responses from B.L. upon receiving that information from the court, rather than relying on counsel to explain what B.L. may have been told off the record.
III. DISPOSITION
The order is reversed.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.