PEOPLE v. BLACKBURN

Respondent’s Reply Brief on the Merits

Cal.January 22, 2014

COPY Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, | Plaintiff and Respondent, Case No. 8211078 Vv SUPREME COUK: FILER BRUCE LEE BLACKBURN, Defendant and Appellant. JAN 22 2014 Sixth Appellate District, Case No. H037207 . Santa Clara County Superior Court, Case No. BB304666 Frank A. McGuire Cie! Deputy The Honorable Gilbert T. Brown, Judge RESPONDENT’S REPLY BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General CATHERINEA. RIVLIN Supervising Deputy Attorney General KAREN Z. BOVARNICK Deputy Attorney General State Bar No. 124162 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5550 Fax: (415) 703-1234 Email: Karen.Bovarnick@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page TntroductiOn.........cccccccsessecsssecsseessceenececerscetsseseseeseeecesnecsaeeasesecstsessseaeessaseeses ] ALQUMEMt 0. eeeeeeeseeseeserecceneeeeesscssssseessuessecaseseassessseessesessressesseenresstensecgese 2 I. Thetrial court did not commit prejudicial error by failing to advise appellant of the right to jury trial and to obtain a personal waiverofthat right...eeeeee2 A. MDOstatute does not “mandate” personal advisementofright to jury by trial court...2 B. Waiver ofjury by an attorney does not require a preliminary showing of incompetency.............eee 5 I. Theright to jury in extending MDO commitmentis SUATULOTY oo... ee eeeeeeecesessecseeceseecesreesesssesccnsseseseesaeensserseteneaenes 10 A. Theright does not exist under the California Constitution .0.....:ccccccesseeeesceeeeeseeeeeessaneeesnseeaeeeteneeenees 10 B. Counsel’s waiver ofjury was not a constitutional violation of due process...eee 1] C. Counsel’s waiver ofjury wasnot a constitutional violation of equal protection............... 12 IW. Thetrial court did not commit prejudicial CYTOL .....cceecceesneees 13 A. Thetrial court did not commit structuralerror.......... 13 B. Thetrial court did not commit prejudicial error........ 13 CONnClUSION .........sescccsscessestscesseeseccsseceaceeseeseaeessesesaeessasessaeeseseseneesneesseeseeeees 15 TABLE OF AUTHORITIES Page CASES Bartlett v. Battaglia (7th Cir. 2006) 453 F.3d 796 oceeessssssesseeesesesesseeenesessesesessensesseseeeens 14 Briggs v. Briggs (1958)160 Cal.App.2d 312 oossessecseeseesesssnesesnesseseseeieneeneenseees 8,9 Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 CalApp.4th 504 oocscessessneenessseseerensseeseseeenens \..5, 6, 7 Chapmanv. California (1967) 386 US. 18ceceeeesteeterersnsesseensseneeesenssseeeeeseseeesnenenenes 13, 14 Cuccia v. Superior Court (2007) 153 Cal.App.4th 347..iescsesssecseessesesssseneseneneresneseneenees 12 Duncan v. Louisiana | (1968) 391 U.S. 145 occccececeseeeeesensseneassessseesssesessessenesensesenenesesseeseeeaenes 10 Dusky v. United States (1960) 362 U.S. 402.ecsseecteseeseseteseteeecenereneenees sesdesessecneesensensaseaseaes 6 Hollingsworth v. Perry (2013) U.S. [133 S.Ct. 2652] oneeececeeneesneneseeseeneneseerenenenenees 10 In re Daniel S. (2004) 115 Cal.App.4th 903 oo. esesseeseeeceneseseeseresesseteseensereneeates 8 In re Horton (1991) 54 Cal.3d 82 oo ccceesnesseseeeetseseseeseenessssseereneeeenenenetienes 5, 6,7 In re Marriage Cases (2008) 43 Cal.4th 757 oc. ecesseesesessssssssssseesessseesecnesssssssneessneeneneetseenseeneeeey 10 In re Qawi (2004) 32 Cal.4th Lo.ecccceccsesessssssesessereassesseeseeseseesesseseeesserseneseeenseneee 7 In re Tahl (1969) 1 Cal.3d 122 occcesecsesessssesseeseeseareseasensssenesnseneeesneenensensens 4 il Juarez v. Superior Court (1987) 196 CalApp.3d 928 occeeeteesenenesereesceeeresersesesseseesvesseeseceenens 6 Lopez v. Superior Court (2010) 50 Cal.4th 1055.ccscscssseeeeseeseceesseecsessacssasaceseersnenstenseeseneetes 7 People v. Angeletakis (1992) 5 Cal.App.4th 963 00.0... ecesecssceeeseseeneiseersessssnesneesenseeeseeeanes 5, 7,8 People v. Aranda (2012) 55 Cal.4th 342occcccccsscseecsseneeesssssesccsesseeeeesessseessseesensasseneas14 People v. Barrett (2012) 54 Cal.4th 108].eeecsesesceceeseeeneseeeesescneeceeseneeesereneees passim People v. Bowers (2006) 145 Cal.App.4th 870 .....ccceeecsesseseecsersrssersrsnsessensesscscerereaseentens 9 People v. Cosgrove (2002) 100 Cal.App.4th 1266wcceeessssseeseeresensecseserererereneeees 13, 14 People v. Epps (2001) 25 Cal.4th 19 ooeeesceeenesseeeresesesnsees seoseessunesarenssnecesniies 13, 14 People v. Flood (1998) 18 Cal.4th 470occcseseccseseseenesssenssesnesesseenensseneseeseneseeeencseesees 14 People v. Galindo (2006) 142 Cal.App.4th 531 oo.eeeceesseneseceesessesnersacssesesetscsnesensasenenene D People v. Gregerson . (2011) 202 Cal.App.4th 306 0... ccceeseessessessestereeeessessseeeeeeassteesaeseeeseees 9 People v. Hofferber (197) 70 Cal.App.3d 265 0... cccessteesctssecsesessereseresscsensscsesersvaravereneneeenees 6 People v. Howard (1992) 1 Cal.4th 1132eeeeceenseseseessescsessessvessseseesssesscesscesenenssessess 4 People v. Jackson (1950) 36 Cal.2d 28] oo eceecscesssescseensseereeesesesneareseressesseseessesesereneaesetsenss 4 People v. Masterson (1994) 8 Cal.4th 965oeecsecnessceesessesssssesessesenenesssssesesesensesenees 5,8 ill People v. Montoya (2001) 86 CalApp.4th 825 occeeteteeeeeeensererenserenenerens 6, 11, 13 People v. Mosby (2004) 33 Cal.4th 353 occcceseseseeseesneseeecnecsencesensensenseresnessenresseesseennen 4 People v. Otis (1999) 70 CalApp.4th 1174 occ cccessssseseceeteceseenserereeeeeeeensenentessees 7,11 People v. Otto (2001) 26 Cal.4th 200...ecceceeesseeseseesteneceersscseressenssseeneassaseenesnas 11 People v. Powell (2004) 114 Cal.App.4th 1153 oc ccesesseeseeeeneeeceeenreeisneteresseesasees 11 People v. Rish (2008) 163 Cal.App.4th 1370 oo... cccecsesesesseeneeeecneenesssrentenrnsesseneneesenss 9 People v. Rucker (1960) 186 Cal.App.2d 342 ooncceneseseeeereeeeneneneenssesescaveseneseseereeeens 3 Peoplev. Watson (1956) 46 Cal.2d 818 oiecceseecescesesreneseeneenesteesnnentsereneersesenseneneenens 13 Sullivan v. Louisiana (1993) 508 U.S. 275 .ececsesesessecssseeneseessaseseeneensneeneaneerenearenearensessesseeasensenss 14 STATUTES Code of Civil Procedure § 372 ceccsssssssvcssssssersesssssssssenissesseesesssseeee ccsssssesscessensuenesevinvensnnuesnvesssstee 8 S373 cccscessnsseesesisessnsssvisssssessssesesssstensnsseesnsoeesianeeesueneseessveseetsansseeee 8 § 631, subds. (C), (£)(4) ..cececssseresseseeseceessteceenserennensenssetenseressensseensseseeey 3 Evidence Code § 664 ooceccccccssessseseseenesececerssesesssstssencacseeseasacaseneneessaneassesreneasseseneeneaesceseecsenies 3 iv Penal Code S OTT cccccccccsescsescscsescsesescseseecescseseseseseceseseeesesessesesesnsessessnensessnenscenensseseseanens 3 § O88 oiccccccessesssseesssctecsereseeeeeeeeeseseaeseneseueussseeseseuseeseaesesesenseaeaeseseneneesseneees 4 § 1026.5 oo. ececccscsssescseccseseesseccseseseseesesesesenessssstssasenesceresscseensserscssecscenseasrasseens 5 § 1368 wo eccccccsesssesesesccesecsescseseeseseeseneaeacecsversseseseseseessesesssesssessenseenssarasaaens 6 § 2964 ooeeccccccccseseesseeeeseesesssreneeeseseeecsearersnsnsuescssensessasseseeeasenenesVeteeeeeeeeeeees 7 § 2964, subds.(2) and (Db)...ceeeeeeeeteeeeeeeeeeseeceaseneneneeensseseneneneeeeinens 7 § 2964, SUD. (Db)... eee ccccccescsssssecesscsesesesesestsscscnceesnereneeatensuesseanensnensuaeeasenees8 § 2966 oceccccccscsscesscsssesesesccesseatssesesccesseecscesessseesssssesacensesssscsssnesssseassnseasenteeeees 7 § 2966, SUD. (BD)...ee eccsceseseenereseseseeeseeesesrsseneetsescesacsestsecsssnscsssnaneceneseess 7 § 2970 woccccccccccscsesssesescsesccessseseseenseessscseasesseneseensuensasssscesacsesessecscesesseereventueneaes 5 § 2972 voccccscscssesseseesesesetscsesescseecseecsnensseesseaseeseersesaesseesssensseesseacasseseecenay 2,7, 8 § 2972, SUD. (A) ....ceeecccssececesesesesetcsseseteesesseeseecererevecseseseestsraeneesrseseeeeeeeees 2 § 2972, SUDAS. (C), (€) ..eccecceeecesteneeeereseeesesessesesesteserseseensercsesseesnensesneetass 5 § 2972, SUDA.(2)... eeccccecsceccsersererenerenesesssestssseseasseseeesesesessesasssenseseseeteaeneees 3 Welfare and Institutions Code § 5325, et SOQ. .eecccesceesseseecseerseeeneseeneeerseeesssesnsnsnensesssensesasseeessssesenenseass 3 § 6600 woe ccccccsscsescsesccesescscscsnessncsessscaeseneseseeesvencnensesevevenecareseesssenecstensassseessees 5 CONSTITUTIONAL PROVISIONS California Constitution Article TL, § 16... cccccccccscssssecsessssseccsevseceeesesscstecsesassceesssersssseersvatsentes 10 United States Constitution Sixth Amendment...cecccsecsecssseeeeeeeesseeeeeenerees seseeveceesseeesscenes 10, 11 Fourteenth AMendMent.............cccccsseeeeeccccesesseceesesseececsaresscceveesensnseesevecsd 10 INTRODUCTION Appellant’s primary contentions stem from two incorrectpremises: that advisement and waiver ofjury are guaranteed by plain and unambiguousstatutory language; and that due process and dignity interests imply rights under the California and federal constitutions. (AMB 4, 20, 23-26.) To determine whether a defendant is incompetentto act in his or _ her ownbest interests, he asks this Court to sanction, or in effect, legislate the appointmentof a guardian ad litem—a procedure authorized in proceedings whena party is already deemed incompetent. (AMB17.) _ Appellant’s contentions ignore uniform precedent stating that the right to jury trial in these proceedings is statutory and not of constitutional dimension, and hefails to adequately distinguish case-law, never superseded by the Legislature, holding that advisement and waiver may be communicated by a defendant’s attorney,i.e., the “Captain of the Ship” whois charged with acting in a defendant’s best interest. Stripped to its essence, the crux of appellant’s concern is that defense counsel, in, or appearing in, cahoots with the judge and prosecutor, cannotbetrusted to advise on the pre-existing right to jurytrial nor, after such a consultation, execute a waiver in the defendant’s best interest. Appellant’s claims are without authority and unsupported by the record which disclosedneither error nor prejudice. ARGUMENT L THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERROR BY FAILING TO ADVISE APPELLANT OF THE RIGHT TO JURY TRIAL AND TO OBTAIN A PERSONAL WAIVER OF THAT RIGHT A. MDOStatute Does Not “Mandate” Personal Advisement of Right-to Jury by Trial Court Appellant’s primary contention is that the language of Penal Code ~ section 2972, subdivision (a)' regarding advisementof the “default” jury right in Mentally Disordered Offender (MDO)extension proceedingsis plainly understood and without ambiguity. (AMB 5.) Heis incorrect. Appellant’s “plain-language”claim of advisement requires tunnel- vision emphasis on one clause within the statute, to the exclusion ofall others. To find no ambiguity, the advisement ofjury provision must be read: (1) independentofthe clause preceding it, directing advisementofthe right to attorney; (2) independentofthe sentence precedingit, stating that the court shall conduct a hearing on the petition for continued treatment; (3) independentofthe sentence immediately following it, directing that the attorney receive a copyofthepetition; (4) independentof the sentence, two sentences later, which again refers to the proceedingsas a civil hearing subject to criminal rules of discovery; and (5) independentof subdivisions (c) and (e) whichrefer to the defendantas a “patient,” and not simply as a “person.” (§ 2972.) Even within this interpretive prism, his claim that the advisement provision is without ambiguity is incorrect. Assuming,as appellant contends, that “person,” under the advisement provision of subdivision (a) means defendant, there is also ambiguity since the statute contemplates appointment of counsel and advisementto the "All statutory references are to the California Penal Code unless otherwise specified. “person”in the same instance, and does not address the situation in which counsel appears and waives the defendant’s appearance. (§ 977.1.) Appellant acknowledgesthatthe statute does not address the situation, but rather than finding ambiguity, blames thetrial court for “routinely appointing attorneys when the client was not present” (AMB 6), orfailing to advise a defendant moments beforea trial is set to commence (AMB 7-8). _ Ironically, he finds no malfeasancein a trial counsel’s routine waiver of a defendant’s appearance until trial, presumably because counsel’s waiver of appearanceserves a defendant’s best interest. (Evid. Code § 664; People v. Rucker (1960) 186 Cal.App.2d 342, 346.) (Opn.9-10.) Appellant characterizes the administrative burden involved in making a “game-time decision” to waive jury on the dayoftrial as a mere “inconvenience.” (AMB 7-8) But he provides no rationale for why the public should bear this burden when counsel has met with a defendant manytimesbeforetrial, and indicatedto the trial court thatit is in the best interests of the defendant to waive jury.’ Rather than acknowledge ambiguity under these circumstances, appellant argues for an anomalous, butstrict, construction that belies his plain-language contention. (AMB 5- 6.) | | Appellant incorrectly overstates the People’s position as contending that, rather than advisementbythe trial court, the advisementitself *The Legislature has set forth proceduresin civil cases which demonstrate a preference for advance notice that a party will assert the constitutional jury right. In civil cases, demandfor jury, even in unlawful detainer matters proceeding on an expedited schedule, must be madeat least five days, and in most cases 25 days,in advanceofthetrial date. (CodeofCiv. Proc. § 631, subds. (c), (f)(4).) Moreover, distinct from criminal matters, commitment proceedingsraise additional administrative burdenspertaining to custody of an MDOrequiring treatment which would require advance planning. (§ 2972, subd. (g); Welf. & Inst. Code § 5325, et seq.) becomes mootonce an attorney is appointed. (AMB 5.) Rather, we argued that the statutory language assumesthat the committee defendantis unrepresentedat thefirst appearance, and thus chargesthetrial court with providingthis basic notice of an existing right. Once an attorney appears, especially when waiving a defendant’s appearance, then the attorneyis charged with advising the defendantof his or her panoply of rights. (RMB 7.) This presents a situation no different from waiving reading of an information otherwise required in section 988 in a criminal case. (e.g., People v. Jackson (1950) 36 Cal.2d 281, 283.) Even in criminal matters, moreover, where the right to jury is constitutional, there is no mandate that the trial court, rather than defense counsel, provide notice of the jury right to a represented defendantat arraignment. (§ 988.) Rather, the trial court must inquire about knowledgeofthis rightat the time the right is waived, ie., when taking a plea. (in re Tahil (1969) 1 Cal.3d 122, 131-132 (Tahl).) But even whentaking a plea, the trial court does not inquire how the defendant acquired knowledge ofthe right, or prophylactically assureitself of the details the attorney discussed with the defendant prior to waiver. (See People v. Howard (1992) 1 Cal.4th 1132, 1178 (Howard) [rejecting formerrule that absence of express admonitions and waivers requires | reversal regardless of prejudice]; People v. Mosby (2004) 33 Cal.4th 353, 360-361 [appellate court reviews record to determine if plea was voluntary and knowing even if explicit admonition absent].) Thus appellant’s claim oferror in notice must be rejected. Contrary to appellant’s quotation (AMB 5), our opening brief stated that “when counselis present at the first appearance,thetrial court’s failure to advise ‘the person’ ofthe right to counsel and the default right of a jury trial makes the statutory advisement moot, rather than an error of omission,” not one of “admission.” (RMB 7,italics added.) B. Waiver of Jury by an Attorney does Not Require a Preliminary Showing of Incompetency Appellant mischaracterizes the People’s contention as claiming that all commitment schemes have a presumption of incompetence. (AMB8.) Hearguesthat, to the contrary, we must presume an MDOdefendant competent in an extension proceeding because during the criminaltrial that preceded commitment, an MDO defendant,like those committed as not guilty by reason of insanity (NGI) (section 1026.5), and sexually violent predators (SVP) (Welf. & Inst. Code § 6600), was deemed competentto stand trial. (AMB 10.) As threshold matter, a finding that a defendant was competentto stand trial for criminal charges does not suggest he or she is or remains competent whenlater found to suffer a mental disorder notin remission requiring civil commitment as an MDO.(§§ 2970, 2972, subds. (c), (e), italics added.) Moresignificant, however,is that appellant’s straw- man premise hasno relevancefor the primary contention that governshere, i.e., that an attorney has authority over waiverofstatutory rights. (People v. Masterson (1994) 8 Cal.4th 965, 969; see Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 510 (Cadle) {counsel’s stipulation to waivejury in civil contract dispute was binding as counsel “is authorized to exercise his independent judgment with respect to strategic litigation decisions”]; also see In re Horton (1991) 54 Cal.3d 82, 95, 97 [stipulation to court commissioner’s conductingtrial in capital case inferred from conduct of counsel whohastraditional authority to act in the procedural aspects of case].) As wediscussed in our opening merits brief, undisturbed case law indicates a number of reasons why the Legislature did not set forth a procedure for determining competence to exercise a statutory right ofjury waiver in extension proceedings. First, a defendant need not be competent in proceedings to extend commitment (People v. Angeletakis (1992) 5 Cal.App.4th 963, 970 [due process does notinclude theright to be mentally competent during a commitment extension hearing]; Juarez v. Superior Court (1987) 196 Cal.App.3d 928, 931-932 [no right to competency determination in NGI commitment proceedings to determine length of treatment and not punishment].) Thus, case authority, and indeed, the Court of Appeal in this case, have focused on a defendant’s ability or _ inability to act in his or her best interests, rather than on the Dusky standard of competence’ under § 1368. (AMB 13-14, and cases cited therein.) Second,the reports and evaluations of mental health experts supporting the initial petition cast doubt upon whether a defendant committee could consistently act in his or her best interest independent of an attorney “captain.” (People v. Barrett (2012) 54 Cal.4th 1081, 1106.) Third,it is reasonable to infer legislative intent to place the attorney at the helm as captain, not merely due to this threshold showing of mental impairment, but also becausethe attorney is authorized, presumed, and indeed, obligated to make these kinds oftactical decisions to assert or waive statutory rights with the best interest of the client in mind. (Barrett, at p. 1105; People v. Montoya (2001) 86 Cal.App.4th 825, 831; Cadle, supra, 144 Cal.App.4that p. 510; In re Horton, supra, 54 Cal.3d at p. 95) | Appellant’s reliance on People v. Hofferber (197) 70 Cal.App.3d 265, 269, is inapposite as it considered counsel’s authority over the defendant’s constitutional right to enter a plea, i.e., to refuse to plead NGI contrary to advice of counsel, and observed that competencyat trial is based on “Thetest for trial competence, as set forth in Dusky v. United States (1960) 362 U.S. 402, is whether a defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree ofrational understanding and whetherhehasa rationalaswell as factual understanding of the proceedings against him.’ ” standardsdistinct from those determining sanity during a crime. Asjust noted in Barrett, Montoya, Cadle, and In re Horton, an attorney’s authority to waive jury stems from authority over statutory decisions, and competencyto standtrial is not a relevant concern in an extension proceeding. (See Angeletakis, supra, 5 Cal.App.4th at p. 970.)° Appellant contends that placing an attorney in charge ofa tactical decision over waiver ofjury would render identical language in section 2966, subdivision (b),° stating that a time waiver may be made by “petitioner or his or her counsel,” superfluous. (RMB 13.) Heis incorrect. The obviousinference from the difference in statutory languageis that the “person” who waives jury, parallel with the district attorney, may be defense counsel alone. (People v. Otis (1999) 70 Cal-App.4th 1174, 1176.) Appellant is incorrect too, in his contention that there is something incongruousif the Legislature intended to leave the decision to waive jury in the handsoftrial counsel while allowing an MDOprisonerto contest his status and treatmentat the time of parole, or seek appointmentof experts under section 2964. (AMB 14.) Nothing compels such a conclusion or even a comparison between procedures before the Board of Parole and a trial in the Superior Court. Indeed, such a comparison does not exclude an attorney’s involvementin these decisions, whichrefer to rights a prisoner “may” exercise (hearing rights under §§ 2964, subdivisions (a) and (b), 2966), or “the patient or the patient’s attorney” can exercise (continuance under § 2964), or “the prisoner or any person appearing on hisor her behalf >Wedistinguished Jn re Qawi (2004) 32 Cal.4th 1, 15 in our opening merits brief as addressing constitutional rights of privacy and bodily integrity, rather than statutory right ofjury. (AMB 19.) Section 2966 addresses an MDOproceedingatthe time of parole, with languagesimilar to that at issue here, in section 2972 addressing extension of commitment proceedings. (RMB 1, fn 2, referencing discussion in Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061-1061.) at the hearing” may exercise (appointmentof experts under § 2964, subdivision (b), italics added). Appellant argues in favor of a competency determination, arguing that it would lend dignity to a process in which government employees working in the criminal justice system—from the judge to the public defender he presumesis appointed in each case—gang up to recommit him. (AMB 17.) _ Heproposes appointing appellant’s trial attorney as guardian ad litem. (AMB 17-18.) . Asa threshold matter, neither the plain language nor a reasonable interpretation of that language of section 2972 contemplates such a procedure for a defendant committed as.an MDO. Theprocedure, moreover, does not serve appellant’s purpose of determining competency for purposes of waiving jury. The Legislature provides for appointment of a guardian ad litem—not to determine competence, but rather, to make decisions for a party already deemed incompetent. (Code of Civ. Proc,. §§ 372, 373.) Appellant’s novel proposal merely echoes Masterson and subsequent authorities that already establish that a defendant’s attorneyis “captain of the ship” in commitmentproceedings, but with a layer of process not contemplated by the Legislature. (Angeletakis, supra, 5 | Cal.App.4th at p. 970.) Appellant’s reliance on Jn re Daniel S. (2004) 115 Cal.App.4th 903, 912, and Briggs v. Briggs (1958)160 Cal.App.2d 312, 318, does not compel appointmentof a guardian ad litem to waive jury in MDO commitment proceedings. In re DanielS. involved the protection of constitutionalrights of due process owing a parent in dependency proceedings whowasalleged to have been incompetent. (Jn re Daniel S., supra, 115 Cal.App.4thatp. 912 [due process error was harmless].) Briggs v. Briggs involved protection of constitutional rights of due process owing a defendant spouse in proceedings to annul her marriage. (Briggs, supra, 160 Cal.App.2d at pp. 314-315.)’ Determining the competencyofa parent or spouseto participate as a party is an issue of constitutional dimension separate and distinct from those to be determined in the dependency or annulmentproceedings. It is not analogous to determining whether a defendant, whose mental capabilities are an issue triggered by the proceedingsthemselves, has the precise capability of waiving a statutory right ofjury.® If the Legislature _ had intended to provide for two such proceedings with different standards for mental capability, it would have said so. (Barrett, supra, 54 Cal. 4th at p. 1106.) "Briggs involved a complicatedfact situation in which the defendant wife, a patient at Camarillo State Hospital, was served with annulment papers; the plaintiff husband sought appointment of a guardian ad litem; the order to appoint the guardian ad litem was never signed andthusineffective; default was taken; and nine years later—after receiving a “certificate of recovery,” trying to move in with plaintiff, and learning ofthe annulment,—defendant had the annulmentorder set aside. (Briggs, supra, 160 Cal.App.2d at pp. 314-318.) The Court of Appealheld that while service and entry of default were proper absent appointment of a guardian ad litem, “equity jurisdiction” supported setting aside the default judgment becausethetrial court erred in failing to sign the order appointing a guardian ad litem to represent an incompetent defendant. (/d. at p. 318- 319.) ®Indeed, one factor commonly examined in determining whether defendant meets the elements for MDOextension is whether defendants have insightinto their condition, an issue closely connected with whether defendants can appreciate and actin their best interests. (e.g., People v. Rish (2008) 163 Cal.App.4th 1370, 1385; People v. Gregerson (2011) 202 Cal.App.4th 306, 320-321 [lack of insight into conditionpart of insufficient showing for outpatient treatment]; People v. Bowers (2006) 145 Cal.App.4th 870, 874, 876 [NGI hadinsufficient insight and serious difficulty in controlling dangerous behavior]; People v. Galindo (2006) 142 Cal.App.4th 531, 535-536, 539 [NGI defendant “did nottry to control his dangerous behavior, because he perceived no reason to do so”].) Il. THE RIGHT TO JURY IN EXTENDING MDO COMMITMENTIS STATUTORY A. The Right Does Not Exist Under the California Constitution Appellant acknowledgesthatthere is neither an express right nor one that existed at commonlaw at the time the California Constitution was adopted that provides him the right to trial by jury. (AMB 20.) ~ Nonetheless, he argues for anovel andlimitless interpretation of language in California Constitution, article I, section 16, securing jury rights “to all” to include defendants in civil commitmentproceedingsandrelies on Jn re Marriage Cases (2008) 43 Cal.4th 757° as support because“it is time for this interpretation of the constitution to change.” (AMB 20-21.) _ Appellant’s call for a new constitutionalrule, indeed, a new rule of constitutional rule-making, is unprecedented. Appellant quotes extensively from Duncan v. Louisiana (1968) 391 U.S. 145, 155-156, arguing that jury trials offer protection from government oppression that purportedly appears in the guise of overzealous prosecutors and judges fearful ofpolitical repercussions. (AMB 22.) In Duncan vy. Louisiana, our High Court held that under the due process clause of the Fourteenth Amendment, the Sixth Amendmentright to jury applied to all serious felonies, but not petty offenses punishable byless than six months. (/d. at p. 149.) Just like the analysis required for determining rights under the California Constitution, the United States Supreme Court found that the absence of an express constitutional provision or common- law history requiring jury for petty offenses suggested no reason to disturb "In re Marriage Cases, considered the application ofthe right of marriage derived from constitutional rights of privacy and due process, was superseded by constitutional amendmentasstated in Hollingsworth v. Perry (2013) _U.S.__ [133 S.Ct. 2652, 2659]. 10 the presumed “benefits to efficient law enforcement and simplified judicial administration resulting from the availability of speedy and inexpensive nonjury adjudications”in those kinds of cases. (/d. at pp. 149, 159-162.) In other words, an allegation of potential government oppressionis not a basis for recognizing, or in this case creating, new constitutional rights. B. Counsel’s Waiver of Jury Was Not a Constitutional Violation of Due Process Appellant reframes all his previous arguments to contend, absent a personal waiver, he was denied jurytrial in violation of his federal constitutional rights of due process. (AMB 23.) As we arguedin our opening meritsbrief, right to jury in commitment proceedingsis a statutory right that can be waived by counsel. (Montoya, supra, 86 Cal.App.4that p. 829; Otis, supra, 70 Cal.App.4th at p. 1177; People v. Powell (2004) 114 Cal.App.4th 1153, 1157 [an extensiontrial is civil in nature and directed to treatment, not punishment]; Barrett, supra, 54 Cal.4th at p. 1098.) Appellantrelies on Barrett, in which this Court notedthat: the procedural safeguards required in this context are flexible [Citation] and the quantum andquality of the process due depends upon the nature and purpose of the challenged commitment.[Citation.] In making this determination, the courts weigh, assess, and consider various factors affected by the disputed procedure. Distilled, these considerations involve (1) the various private interests at stake, (2) any competingstate or public concerns, and (3) the potential risk of an erroneousor unreliable outcome. (Id. at p. 1099.) Herelies on People v. Otto (2001) 26 Cal.4th 200, 210 which described a fourth factoras “the dignitary interest in informing individuals of the nature, grounds, and consequencesofthe action and in enabling them to present their side of the story before a responsible governmentofficial.” 1] Appellant contends these factors weigh in his favor because of: the liberty interest at stake; the “default” nature of the right which he contends precludes the government from considering an adverseinterest including cost; the interest in countering the perception that government employees consisting of“the judge, the prosecutor, and the defense attorney” work togetherto deprive individuals oftheir rights; the greater impartiality of a _ jury versusthe political concerns ofjudges; and the greaterreliability of a jury verdict. (AMB 24-26) These arguments hold little weight, however, in a situation in which appellant’s interests are well-represented by counsel whois ethically bound to place a defendant’s best interests aboveall others. (Barrett, supra, 54 Cal.4th at p. 1998, 1105.) They are also hindered by the government’s inability to proceed without an evaluation by mental-health and treating experts who provide reliable preliminary showing that appellant’s judgmentis impaired in these proceedings. (/d. at p. 1104.) Presumably, this threshold showingfilters out cases in which a defendant’s judgmentis not impaired. (Cuccia v. Superior Court (2007) 153 Cal.App.4th 347, 355 [District Attorney had no authority to independently initiate petition where medical directors reported that defendant wasin remission].) Appellant’s speculation that a jury would render a different decision from a judge is belied by his inability to demonstrate prejudice here, or in any other authorities dealing with waiver ofjury in commitment cases. . Forall the reasons cited in our opening brief, appellant’s contention that due process factors weigh in favor of a personal waiver requirement mustbe rejected. (RMB 13-17.) C. Counsel’s Waiver of Jury Was Not a Constitutional Violation of Equal Protection Appellant contendsthat he is entitled to the same rights pertaining to advisement and waiverofjury trial as those of an NGI, presently being 12 considered by this Court in People v. Tran (S211329). (RMB 27.) We ‘agree and indeed, have arguedin that case that based ontherationale discussed in Barrett, a threshold showing of mental impairment allows defense counsel to execute a waiver on behalf of a defendantin each of those schemes. (Barrett, supra, 54 Cal.4th at p. 1106.) III. THE TRIAL Court Dip NOT COMMIT PREJUDICIAL ERROR A. TheTrial Court did Not Commit Structural Error Appellant contendsthat reversal is “mandatory,” because he was denied his right to a jury under the California Constitution. (AMB 29.) As discussedin section II., A., ante, his right to jury is a creation ofstatute, and thus, even if error occurred, it would not require reversal. (People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276-1277; see People v. Epps (2001) 25 Cal.4th 19, 29.) Moreover, counsel’s waiver ofjury wasnot a deprivation of a statutory right but rather, a tactical decision within counsel’s authority to execute. (Montoya, supra, 86 Cal.App.4th at p. 829.) B. The Trial Court did Not Commit Prejudicial Error Unable to demonstrate structural error based on a purportedviolation of statute, appellant imports the same concept into his definition of prejudice. (AMB 30.) He contendsthatifthe trial court’s failure to render a personal advisement oraccept a personal waiver ofjury violatedhis rights of due process and equalprotection, then he suffered prejudice under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 which requires reversal unlesserror is harmless beyond a reasonable doubt. (AMB 29.) If these purported errors violated state law, then he contends he suffered prejudice underthe standardset forth in People v. Watson (1956) 46 Cal.2d 818, 836 which requires reversal only if it was reasonably probable the error affected the outcome of the verdict. (AMB 29.) As we argued in our opening merits brief, the correct standard is the Watsontest 13 and, as detailed by the Court of Appeal, he fails to meet it. (RMB 20,citing Cosgrove, supra, 100 Cal.App.4th at pp. 1276-1277 and Epps, supra, 25 Cal4th at p. 29.) (Opn. 30.) Appellant’s definition of prejudice, i-e., denial of “the jury trial itself” (AMB30), is incorrectas it describes the consequenceof the purported error, and notits effect on the adjudication ofissues attrial. (People v. _ Flood (1998) 18 Cal.4th 470, 506-507.) Sullivan v. Louisiana (1993) 508 U.S. 275, 277, on whichherelies, is inapposite since the Court foundthat error in instructing on the reasonable doubt standard wasstructuralerror as the effect was “necessarily unquantifiable and indeterminate. (/d. at pp. 281-282; see Bartlett v. Battaglia (7th Cir. 2006) 453 F.3d 796, 801 [analysis of Sullivan in context of subsequent authorities].) Appellant’s contention that a statutory right, purportedly to personal notice and waiver, is analogousto constitutional error in misinstructing on reasonable doubtis incorrect. “{T]o declare an error ‘structural,’ it is not enoughto say that the error denied the defendant a ‘most elementary and fundamental right.” (People v. Aranda (2012) 55 Cal.4th 342, 366 [failure to instruct on reasonable doubt for a particular offense subject to Chapmanstandardof prejudice].) Using appellant’s circular logic, any andall statutory violations of procedure would be prejudicial. 14 CONCLUSION Accordingly, respondent respectfully requests the judgment be affirmed. Dated: January 22, 2014 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General ' GERALD A. ENGLER Senior Assistant Attorney General CATHERINE A. RIVLIN Supervising Deputy Attorney General CKKAREN Z. BO J Deputy Attorney General Attorneysfor Respondent SF2013206115 40863 107.doc 15 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLY BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 4,209 words. Dated: January 22, 2014 KAMALA D. HARRIS Attorney General of California KAREN Z. BOVARNICK Deputy Attorney General _ Attorneysfor Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Blackburn No.: $211078 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On January 22, 2014, I served the attached RESPONDENT’S REPLY BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Rudolph G.Kraft Sixth Appellate District Attorney at Law Court of Appeal of the State of California P.O. Box 1677 333 West Santa Clara Street, Suite 1060 San Luis Obispo, CA 93406-1677 San Jose, CA 95113 (2 copies) County of Santa Clara The Honorable Jeffrey F. Rosen Criminal Division - Hall of Justice District Attorney Superior Court of California Santa Clara County District Attorney's Office 191 North First Street 70 W. Hedding Street San Jose, CA 95113-1090 San Jose, CA 95110 Sixth District Appellate Program Sixth District Appellate Program 100 N. Winchester Blvd., Ste 310 Santa Clara, CA 95050 I declare under penalty of perjury underthe lawsofthe State of California the foregoing is true and correct and that this declaration was executed on January 22, 2014, at San Francisco, California. / Tan Nguyen ; At,Wioy W4] WWCa| Declarant . Signatyre $F2013206115 4087 1324.doc