MDO defendant in California

2026The Supreme Court in Blackburn observed that the MDO statutory scheme required the trial court to “‘advise’” an MDO defendant of “‘the right to a jury trial’” and hold a jury trial “‘unless waived by both the person and the district attorney.’” 11 (Blackburn, supra, 61 Cal.4th at p. 1116 citing Pen.

2022In People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn), our Supreme Court ruled that prior to holding a bench trial to extend an MDO defendant’s commitment, the trial court must advise the defendant personally of his or her right to a jury trial and must obtain a personal waiver of that right unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver. (§ 2972, subd. (a); Blackburn, supra, 61 Cal.4th at p. 1116 .) However, “a trial court’s acceptance of a defendant’s personal waiver without an express advisement may be deemed harm

2026Code § 2972, subd. (a).) As a result, the court held that “the trial court must advise the MDO defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence . . . that the defendant lacks the capacity to make a knowing and voluntary waiver.” (61 Cal.4th at p. 1116.) In Tran, a companion case filed the same day as Blackburn, the Supreme Court reached the same conclusion for NGI commitments based on “nearly identical language in the statutory scheme.” (Tran, su

2022(Blackburn, supra, 61 Cal.4th at p. 1116 [“[T]he trial court must advise the MDO defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a personal waiver of that right from the defendant unless the court finds substantial evidence—that is, evidence sufficient to raise a reasonable doubt—that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision”]; Tran, supra, 61 Cal.4th at p. 1163 [“The trial court must advise the NGI defendant personally of his or her right to a jury

2021Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 .) “‘Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618 , overruled on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 .) Moreover, an expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evid

2021Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 .) “‘Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618 , overruled on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 .) Moreover, an expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evid

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2013(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 122]; see Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court”].) Given the similar mental state of the defendants in both, we read both cases “for the right to a jury trial and conduct a jury trial “unless waived by the person and the district attorney.” 13 the proposition that when an MDO appears to be incapable of determining whether a bench or jury trial is in his or her best interests, the MDO must act

2013(See Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“[l]anguage used in any opinion is of course to be understood in the light of the facts and the issue then before the court”].) Given the mental state of the defendant in Otis, we read it to hold “that when an MDO appears to be incapable of determining whether a bench or jury trial is in his or her best interests, the MDO must act through counsel, and counsel has exclusive authority to decide even over the MDO’s objection.” (Blackburn, supra, 152 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 122].) We concluded that it could not be read mor

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2013(People v. Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s actions rejected where argument based upon faulty premise that defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not decide “hypothetical or other questions of constitutional law unnecessary to our disposition of the case”].) Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825 , the court rejected the MDO’s claim that the federal due

2022We noted that in Sivongxxay, supra, 3 Cal.5th at p. 169 , our Supreme Court had “emphasized ‘the value of a robust oral colloquy’ in eliciting a knowing, intelligent, and voluntary waiver of a jury trial.” ( Blancett, supra, at p. 1205 .) In Blancett the colloquy between the MDO defendant and the trial court was as follows: “‘[Counsel]: Yes.

2022So, Mr. B., [counsel] says that you are okay with having a judge decide your case and not a jury? “‘[Blancett]: Yes, your honor. “‘The Court: That’s okay with you? “‘[Blancett]: Yes, your honor. “‘The Court: All right.’” ( Blancett, supra, at p. 1203 .) 10 We concluded that the MDO defendant in Blancett “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.” (Blancett, supra, 15 Cal.App.5th at p. 1206 .) We explained: “The trial court did not inform Blancett that he had a right to a jury trial,

2015(See § 2970 [extension petition for an MDO defendant in a state hospital must be accompanied by a written medical evaluation finding that the defendant suffers from a severe mental disorder that ―is not in remission or cannot be kept in remission‖ without 17 treatment].) A similar inference led this court to conclude that counsel, in making fundamental litigation decisions, may override the wishes of a criminal defendant facing a competency hearing (Masterson, supra, 8 Cal.4th at p. 972 ) or a developmentally disabled person facing a commitment proceeding ( Barrett, supra, 54 Cal.4th at pp. 11

2015(See § 2970 [extension petition for an MDO defendant in a state hospital must be accompanied by a written medical evaluation finding that the defendant suffers from a severe mental disorder that “is not in remission or cannot be kept in remission” without treatment].) A similar inference led this court to conclude that counsel, in making fundamental litigation decisions, may override the wishes of a criminal defendant facing a competency hearing ( Masterson, supra, 8 Cal.4th at p. 972) or a developmentally disabled person facing a commitment proceeding ( Barrett, supra, 54 Cal.4th at pp. 1104-

2013Defendant acknowledged that in People v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya (2001) 86 Cal.App.4th 825, 829 (Montoya), the courts said that counsel had authority to waive a jury trial even over an MDO’s objection.

2013(See People v. Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form proper substitute for judicial advisement].) 10 a federal constitutional question.’ [Citations.]” (Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21 .) Due process does not safeguard “the meticulous observance of state procedural prescriptions . . . . ” (Rivera v. Illinois (2009) 556 U.S. 148, 158 [“Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution].) In Montoya, supra, 86 Cal

2022(Hubbart, supra, 88 Cal.App.4th at p. 1218 .) “[T]he terms used to describe the degree of mental disorder required for civil commitment carry no ‘talismanic significance.’ ” (Ibid., citing Kansas v. Hendricks (1997) 521 U.S. 346, 359 .) Under both schemes, a committed person is required to have a mental disorder that renders the person a danger to others.

2022(Hubbart, supra, 88 Cal.App.4th at p. 1218 .) “[T]he terms used to describe the degree of mental disorder required for civil commitment carry no ‘talismanic significance.’ ” (Ibid., citing Kansas v. Hendricks (1997) 521 U.S. 346, 359 .) Under both schemes, a committed person is required to have a mental disorder that renders the person a danger to others.

2021Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 .) “‘Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618 , overruled on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 .) Moreover, an expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evid

2021Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of substantial evidence.’” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 .) “‘Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618 , overruled on another ground in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13 .) Moreover, an expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evid

2020(People v. J.S. (2014) 229 Cal.App.4th 163 , 170–171 [MDO defendant’s appeal was not moot despite expiration of initial one-year commitment because “the initial determination of whether an offender qualified as an MDO continues to have practical effects”]; People v. Fernandez (1999) 70 Cal.App.4th 117 , 134–135 [appeal was not moot because appellate court’s “decision may still affect the lower court’s right to continue jurisdiction under the original commitment as well as the recommitment”]; People v. Williams (1999) 77 Cal.App.4th 436 , 441 & fn. 2 [appeal was not moot both because issue rais

2013(Id. at p. 898; see also People v. Hurtado (2002) 28 Cal.4th 1179, 1185-1186 [concluding appeal was moot but determining whether jury must find SVPA defendant will commit predatory acts because the issue arises in virtually every SVPA trial and appeal].) In People v. Fernandez (1999) 70 Cal.App.4th 117 (Fernandez), an MDO defendant argued the trial court lacked jurisdiction to extend his commitment because certain procedural requirements had not been met.

2015(Blackburn, supra, 61 Cal.4th at p. 1116 ; Tran, supra, 61 Cal.4th at p. 1163 .) Given the errors identified, the high court considered the appropriate remedy. ( Blackburn, supra, at pp. 1132-1138 .) It determined “that when a trial court errs in completely denying an MDO defendant the right to a jury trial under section 2972(a), the error requires automatic reversal.” (Id. at p. 1136.) Similarly, the Tran court concluded that in light of “such error—resulting in a complete denial of the defendant’s right to a jury trial on the entire cause in a commitment proceeding—” automatic reversal is re

2013(Otis, supra, 70 Cal.App.4th at p. 1177 ; Montoya, supra, 86 Cal.App.4th 830 -831; cf. People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1159 (Powell) [relying on Otis to reject a claim that similar language in section 1026.5 required personal jury waiver].) In Blackburn, we agreed with Otis and Montoya.

2021Code, § 1271.) Even assuming this is true, the failure to offer and admit the records into evidence rendered Dr. Rassti’s recitation of their content “hearsay for which no exception was established.” (Turner, supra, 10 Cal.5th at p. 823 .) An expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 686 ; see People v. Bona (2017) 15 Cal.App.5th 511, 520 [recognizing Sanchez applies in MDO proceedings].

2021Code, § 1271.) Even assuming this is true, the failure to offer and admit the records into evidence rendered Dr. Rassti’s recitation of their content “hearsay for which no exception was established.” (Turner, supra, 10 Cal.5th at p. 823 .) An expert witness testifying at an MDO hearing cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 686 ; see People v. Bona (2017) 15 Cal.App.5th 511, 520 [recognizing Sanchez applies in MDO proceedings].