Filed 7/21/17 P. v. Fletcher CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM DOUG FLETCHER,

Defendant and Appellant.

F075049

(Super. Ct. No. CF03901007)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, and Melissa Lipon, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-


Defendant William Doug Fletcher, a Mentally Disordered Offender (MDO), contends on appeal that (1) he gave no personal waiver of his right to a jury trial in his MDO case, as required by People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn), and (2) the trial court erred in revoking his outpatient status pursuant to Penal Code section 1608. The People concede that the trial court’s error requires that we reverse and remand for further proceedings. We agree.
BACKGROUND
The MDO Act (§ 2690 et seq.) “ ‘provides that individuals convicted of certain enumerated violent offenses caused or aggravated by a severe mental disorder, and who pose a substantial threat of harm to others, may be required to receive mental health treatment’ ” as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), or following release from parole (§§ 2970, 2972). (Blackburn, supra, 61 Cal.4th at p. 1122.)
Defendant had been hospitalized as an MDO patient since 2005, the last seven or so years at Coalinga State Hospital. On February 29, 2016, he was ordered to outpatient treatment with supervision. But due to various issues, no appropriate facility would accept him.
Following an assessment on April 21, 2016, a request was made to the superior court on May 9, 2016, to revoke defendant’s outpatient status pursuant to section 1608 because he had shown he would be a danger to others if released into the community.
On October 13, 2016, the Fresno County District Attorney filed a petition seeking to extend defendant’s involuntary MDO commitment for another year pursuant to section 2970.
On December 13, 2016, defendant purportedly waived his right to a jury trial. The bench trial started on January 5, 2017, and the trial court granted both the section 1608 request for revocation of defendant’s outpatient status and the section 2972 petition for extension of defendant’s involuntary commitment.
Defendant filed notice of appeal on January 20, 2017.
DISCUSSION
In Blackburn, the Supreme Court held that the trial court must personally advise an MDO defendant of his or her right to a jury trial. Before it conducts a bench trial, the court must obtain the defendant’s personal waiver of his or her right to a jury trial unless the court finds substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel may make the waiver decision. (Blackburn, supra, 61 Cal.4th at p. 1125.) “[W]hen 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.)
In this case, we agree with the parties that the record does not support an adequate jury trial waiver and that the matter must be reversed and remanded. Pursuant to Blackburn, remand is appropriate, “so that the district attorney may submit evidence, if any, that [defendant] personally made a knowing and voluntary waiver or that he lacked the capacity to make a knowing and voluntary waiver at the time of counsel’s waiver. If the trial court finds by a preponderance of the evidence that [defendant] made a knowing and voluntary waiver, or if it finds substantial evidence that he lacked that capacity at the time of counsel’s waiver, then the court shall reinstate the extension order. This approach applies to all cases presently on direct appeal where the record does not reveal whether an MDO defendant personally waived his or her right to a jury trial or whether there was substantial evidence that the defendant lacked the capacity to make a knowing and voluntary waiver at the time of counsel’s waiver.” (Blackburn, supra, 61 Cal.4th at p. 1137.)
Consistent with Blackburn, we will reverse the order and remand the matter for further proceedings. The issue of the order granting the section 1608 request for revocation of outpatient status is moot in light of our reversal.
DISPOSITION
The order of commitment is reversed and the matter is remanded for further proceedings consistent with People v. Blackburn (2015) 61 Cal.4th 1113, 1137.