Filed 1/6/22 P. v. B.P. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

B.P.,

 Defendant and Appellant.

2d Crim. No. B311051

(Super. Ct. No. 21PT-00059)

(San Luis Obispo County)

B.P. appeals from an order committing him for treatment 

to the Department of State Hospitals as a mentally disordered 

offender (MDO). (Pen. Code, § 2962 et seq.) He was diagnosed 

with schizophrenia. His commitment offense was attempted rape 

by means of force or fear with an enhancement for inflicting great 

bodily injury. (Id., §§ 664, 261, subd. (a)(2), 12022.7, subd. (a).) 

Appellant committed the offense five days after his release from 

prison. Pursuant to a plea bargain, he was sentenced to prison 

for six years. 

Appellant’s sole contention is that his waiver of a jury trial 

was invalid because the trial court failed to properly advise him 
2

of his right to a jury trial. The Attorney General concedes that 

appellant’s contention has merit and that the commitment order 

must be reversed. We reject the Attorney General’s concession 

and affirm. Considering the totality of the circumstances, we 

conclude appellant knowingly, intelligently, and voluntarily 

waived his right to a jury trial.

Proceedings in Trial Court

The trial court’s jury trial advisement and appellant’s 

waiver were as follows:

“[Appellant’s Counsel]: Your Honor, I’ve spoken to 

[appellant] about his jury trial rights, and he’s going to elect to 

have a court trial and waive his jury trial.

“THE COURT: All right. Mr. [P.], you understand that the 

question of whether you meet these criteria [the MDO criteria], 

you have a right to have a jury make that decision. [Counsel]

indicates that you understand that right; is that true?

“[Appellant]: Yeah.

“THE COURT: All right. Do you want to waive that right 

and have a judge make the decision?

“[Appellant]: Yeah.

“THE COURT: Okay. You join, [counsel]?

“[Appellant’s Counsel]: “I do, Your Honor.’” 

Waiver of Right to Jury Trial

“‘[A] defendant’s waiver of the right to jury trial may not be 

accepted by the court unless it is knowing and intelligent, that is, 

“‘“made with a full awareness both of the nature of the right 

being abandoned and the consequences of the decision to abandon 

it,”’” as well as voluntary “‘“in the sense that it was the product of 

a free and deliberate choice rather than intimidation, coercion, or 

deception.”’”’ [Citation.] ‘[W]hether or not there is an intelligent, 
3

competent, self-protecting waiver of jury trial by an accused must 

depend upon the unique circumstances of each case.’” (People v. 

Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) “On appeal, 

we independently examine the entire record to determine 

whether the defendant knowingly and intelligently waived the 

right to [a jury trial].” (People v. Burgener (2009) 46 Cal.4th 231, 

241.)

“[A] trial court’s failure to properly advise an MDO 

defendant of the right to a jury trial does not by itself warrant 

automatic reversal. Instead, a trial court's acceptance of a 

defendant’s personal waiver without an express advisement may 

be deemed harmless if the record affirmatively shows, based on 

the totality of the circumstances, that the defendant's waiver was 

knowing and voluntary.” (People v. Blackburn (2015) 61 Cal.4th 

1113, 1136 (Blackburn).) “[T]he totality of the circumstances 

approach permits a reviewing court to take into account events 

that follow the entry of a jury waiver to confirm matters such as 

the waiver’s character and scope.” (Sivongxxay, supra, 3 Cal.5th 

at p. 167, fn. 2.) 

People v. Blancett Is Distinguishable

In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett), 

we considered whether a prisoner had validly waived his right to 

a jury trial in an MDO proceeding. We stated: “Blackburn[, 

supra,] 61 Cal.4th 1113 . . . holds that a trial court must advise a 

defendant in an MDO . . . recommitment hearing of his or her 

right to a jury trial. . . . Blackburn means what it says and 

applies to all MDO hearings, including original commitment 

hearings [as in the present case]. [¶] [¶] Prior to conducting a 

bench trial, the trial court must obtain personally from an MDO 

defendant a knowing, intelligent, and voluntary waiver of the 
4

right to a jury trial unless the court finds substantial evidence 

that the defendant lacks the capacity to make such a waiver. 

[Citation.]” (Blancett, at p. 1202.)

We 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, 15 Cal.App.5th at p. 1205.) In 

Blancett the colloquy between the MDO defendant and the trial 

court was as follows:

“‘[Counsel]: Yes. We’d like to set it for court trial.

“‘The Court: All right. So, 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.)

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, nor did the court explain the significant 

attributes or mechanics of a jury trial. [Citation.] Neither did 

the court inquire whether Blancett had sufficient opportunity to 

discuss the decision with his attorney, whether his attorney 

explained the differences between a bench trial and a jury trial, 

or whether Blancett had any questions about the waiver. 

[Citation.] In a barebones colloquy, the court asked only if 

Blancett was ‘okay’ with a court trial instead of a jury trial. 

[Citation.] . . . Indeed, the court appointed counsel moments 
5

before Blancett entered his waiver and there is no record of 

discussion between Blancett and his attorney prior to the waiver. 

[¶] Moreover, this was Blancett’s initial MDO commitment and 

the record does not suggest that Blancett was familiar with MDO 

proceedings or that he was aware that he was entitled to a jury 

trial.” (Ibid.) “In view of the trial court’s stark colloquy, the lack 

of evidence that Blancett discussed his jury trial right and waiver 

with counsel, Blancett’s inexperience with the criminal justice 

system, and Blancett’s lack of familiarity with MDO proceedings, 

we conclude that his waiver was not knowing and intelligent.” 

(Id. at pp. 1206-1207.) 

The present case is distinguishable from Blancett. Unlike 

the trial court in Blancett, here the trial court expressly advised 

appellant of his right to a jury trial. Appellant expressly waived 

that right. In addition, appellant’s counsel said that he had 

“spoken to [appellant] about his jury trial rights,” and appellant 

affirmed that he “underst[oo]d” these rights. (See Blackburn, 

supra, 61 Cal.4th at p. 1124 [“counsel is presumed to know the 

defendant’s rights and is obligated to advise the defendant 

accordingly”].) Finally, as we explain in the next section of this 

opinion, appellant was not “inexperience[d] with the criminal 

justice system.” (Blancett, supra, 15 Cal.App.5th at p. 1207.) 

People v. Jones Is Also Distinguishable

People v. Jones (2018) 26 Cal.App.5th 420 (Jones), indicates 

that appellant’s jury waiver was not valid merely because he 

expressly waived his right to a jury trial and said that he 

understood this right. In Jones the defendant appealed after her 

conviction for second degree murder following a court trial. The 

waiver of her right to a jury trial was as follows:
6

“‘[Prosecutor]: Ms. Jones, your attorney[] ha[s] indicated 

that you wish to waive jury and have this case decided by Judge 

Sahagun sitting alone. In order to do that, you . . . have to waive 

your right to a jury trial. Ms. Jones, do you understand your 

right to a jury trial?

“‘Defendant Jones: Yes, sir.

“‘[Prosecutor]: Do you agree to waive that right and have 

Judge Sahagun, sitting alone, decide the case?

“‘Defendant Jones: Yes, sir.’” (Jones, supra, at p. 428.) 

The appellate court held that Jones’s “waiver of her right to 

a jury trial was not knowing, intelligent, and voluntary” because 

“[t]he trial court’s two-question inquiry of Jones, as to whether 

she ‘underst[ood] [her] right to a jury trial’ and whether she 

agreed to waive that right and have the trial judge ‘sitting alone, 

decide the case’ does not affirmatively show that Jones 

understood the nature of the right to a jury trial she was 

relinquishing.” (Jones, supra, 26 Cal.App.5th at p. 423.) 

Jones’s representation by counsel did not affect the validity 

of her jury waiver: The appellate court explained: “[T]he record 

does not show whether Jones’s attorney ever discussed with her 

the nature of a jury trial, including for example, that the jury 

would be comprised of 12 of her peers from the community. 

Further, the trial court did not specifically advise Jones that she 

had a right to a jury trial, instead only asking her, ‘[D]o you 

understand your right to a jury trial?’ She responded, ‘Yes, sir.’” 

(Jones, supra, 26 Cal.App.5th at p. 435.) “The trial court did not 

inquire whether Jones . . . discussed her decision with her 

attorney, or whether she had any questions. . . . Because the trial 

court did not advise Jones as to the specific rights she would be 

giving up or inquire if her attorney explained those rights to her, 
7

her bare acknowledgment that she understood her right to a jury 

trial was inadequate.” (Id. at p. 436.) The court noted: “Jones 

had no experience with the criminal justice system. Neither the 

information nor the probation report reveals a prior criminal 

charge.” (Id. at p. 437.)

The present case is distinguishable from Jones. Here the 

trial court specifically advised appellant that he had a right to a 

jury trial. Moreover, in contrast to Jones, appellant’s counsel 

said that he had “spoken to [appellant] about his jury trial 

rights,” and appellant did not contradict counsel on this point. 

Finally, while “Jones had no experience with the criminal justice 

system,” appellant was a veteran of that system. (Jones, supra, 

26 Cal.App.5th at p. 437.) Although appellant was only 34 years 

old when he committed the commitment offense, he had 

accumulated a 30-page rap sheet that is included in the record on 

appeal. A psychological evaluation of appellant states: “Criminal 

records reveal he was first arrested at the age of 15. [¶] [¶] His 

adult criminal history consists of arrests and/or convictions of 

disorderly conduct, receiving stolen property, obstruct/resist 

public officer, grand theft person, theft of elder/dependent adult, 

possession of controlled substance (numerous), possession of 

hypodermic needle/syringe without permit (numerous), use of 

controlled substance (numerous), transport controlled substance 

(multiple), possession of controlled substance in prison, forgery 

with intent to defraud, false identification to peace officers, 

violation of parole, escape attempt, possession of dangerous 

weapon, carry concealed dirk or dagger, sexual battery (in prison 

arrest), indecent exposure (multiple in-prison arrests), battery by 

prisoner, assault by prisoner, robbery 1st, robbery 2nd, stalking, 

sexual battery touch for sexual arousal, burglary 1st, assault to 
8

commit rape, and false imprisonment.” The evaluation observes 

that appellant “is currently serving his fourth . . . prison term.” 

According to appellant’s rap sheet, he has had numerous 

felony and misdemeanor convictions. For three of the many 

misdemeanor convictions, the rap sheet shows that, while 

represented by counsel, he waived his right to a jury trial. 

The Trial Court Was Not Required to Track

the Supreme Court’s Guidelines in Sivongxxay

The Attorney General asserts, “Because the proceedings 

here did not track our Supreme Court’s guidelines [in 

Sivongxxay], the record fails to reveal affirmative evidence of a 

knowing and intelligent waiver.” In Sivongxxay the Supreme 

Court “offer[ed] some general guidance to help ensure that a 

defendant's jury trial waiver is knowing and intelligent, and to 

facilitate the resolution of a challenge to a jury waiver on appeal.” 

(Sivongxxay, supra, 3 Cal.5th at p. 169.) The court 

“recommend[ed] that trial courts advise a defendant of the basic 

mechanics of a jury trial in a waiver colloquy, including but not 

necessarily limited to the facts that (1) a jury is made up of 12 

members of the community; (2) a defendant through his or her 

counsel may participate in jury selection; (3) all 12 jurors must 

unanimously agree in order to render a verdict; and (4) if a 

defendant waives the right to a jury trial, a judge alone will 

decide his or her guilt or innocence.” (Ibid.) The court “also 

recommend[ed] that the trial judge take additional steps as 

appropriate to ensure, on the record, that the defendant 

comprehends what the jury trial right entails. A trial judge may 

do so in any number of ways—among them, by asking whether 

the defendant had an adequate opportunity to discuss the 

decision with his or her attorney, by asking whether counsel 
9

explained to the defendant the fundamental differences between 

a jury trial and a bench trial, or by asking the defendant directly 

if he or she understands or has any questions about the right 

being waived.” (Id. at pp. 169-170.)

Contrary to the Attorney General’s concession, a trial 

court’s failure to follow the Sivongxxay guidelines does not 

necessarily result in the absence of “affirmative evidence of a 

knowing and intelligent waiver.” The Supreme Court stated: 

“[W]e emphasize that our guidance is not intended to limit trial 

courts to a narrow or rigid colloquy.” (Sivongxxay, supra, 3 

Cal.5th at p. 170.) “Our precedent has not mandated any specific 

method for determining whether a defendant has made a 

knowing and intelligent waiver of a jury trial in favor of a bench 

trial. We instead examine the totality of the circumstances.” (Id.

at p. 167.) “[A] trial court’s adaptation of or departure from the 

recommended colloquy in an individual case will not necessarily 

render an ensuing jury waiver invalid. . . . Reviewing courts 

must continue to consider all relevant circumstances in 

determining whether a jury trial waiver was knowing, intelligent, 

and voluntary.” (Id. at p. 170.) “[U]ltimately, a ‘“defendant’s 

rights are not protected only by adhering to a predetermined 

ritualistic form of making the record. Matters of reality, and not 

mere ritual, should be controlling.”’” (Ibid.) 

In Sivongxxay the defendant was “a Laotian refugee with 

no formal education and limited command of the English 

language . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 166.) “[H]e 

was represented by counsel and assisted by a translator 

throughout the trial.” (Id. at p. 167.) After a court trial, he was 

convicted of first degree murder. The trial court found true a 

special circumstance allegation and imposed the death penalty. 
10

The Supreme Court upheld the validity of the defendant’s jury 

waiver even though “the trial court’s waiver colloquy did not 

explain that a jury must be impartial, that its verdict must be 

unanimous, or that the trial court must declare a mistrial if the 

jury fails to reach a verdict. The trial court also did not ask any 

questions confirming that defendant understood how a jury 

works, or that defendant had discussed the jury waiver with his 

counsel.” (Id. at pp. 166-167.) “[T]he trial court advised 

defendant that he had a right to a jury trial, that a jury consists 

of 12 people from the community, that he would have the right to 

participate in the selection of the jury, and that waiver of the 

right to a jury would mean the judge alone would determine his 

guilt or innocence and any resulting punishment. After these 

advisements, defendant answered ‘Yes’ when asked whether he 

wished to ‘give up [his] right to a jury trial and agree that this 

Court, alone, will make those decisions.’”1 (Id. at p. 167.) Despite 

1 The verbatim advisement and waiver were as follows:

“‘THE COURT: Mr. Mounsaveng, Mr. Sivongxxay, you each 

have a right to a trial, either by a jury of 12 people selected from 

this community, through a process that you would engage in with 

your attorneys, the district attorney and the Court, or a trial in 

front of a judge, acting alone without a jury. [¶] The burden of 

proof remains the same. The district attorney has the burden to 

go forth with evidence sufficient to prove your guilt beyond a 

reasonable doubt. Then, and only then, would we get to a penalty 

phase. [¶] In a court trial, I would hear the evidence. I, alone, 

would make the decision on whether that evidence was sufficient 

to prove your guilt beyond a reasonable doubt. [¶] In the event I 

made such a finding, as to either or both of you, we would then 

proceed to a penalty phase, where the district attorney would 

present aggravation evidence. Through your—you, through your 

attorney, would have a right to present mitigation evidence, and 
11

the noncompliance with the Sivongxxay guidelines, the Supreme 

Court concluded, “Viewed holistically, the circumstances 

surrounding defendant's jury waiver demonstrate that it was 

knowing and intelligent.” (Id. at p. 168.)

Appellant Knowingly, Intelligently, and 

Voluntarily Waived His Right to a Jury Trial 

Considering the totality of the circumstances, we conclude 

appellant knowingly, intelligently, and voluntarily waived his 

right to a jury trial. “The defense initiated the request for a court 

trial.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) Counsel said, 

“I’ve spoken to [appellant] about his jury trial rights, and he’s 

going to elect to have a court trial and waive his jury trial.” The 

court informed appellant that he had a right to a jury trial. It 

asked, “[Counsel] indicates that you understand that right; is

that true?” Appellant answered that he understood the right and 

“want[ed] to waive that right and have a judge make the 

decision.” In contrast to the waiver here, in Sivongxxay there 

was no evidence “that defendant had discussed the jury waiver 

with his counsel.” (Ibid.) It is arguable that, in view of counsel’s 

statement that he had discussed the jury waiver with appellant, 

evidence of an intelligent and knowing waiver is stronger here 

than in Sivongxxay.

it would fall upon me to make the decision as to the appropriate 

punishment, which could result in a death penalty sentence. [¶] 

Do you give up your right to a jury trial and agree that this 

Court, alone, will make those decisions, Mr. Mounsaveng?

“‘THE DEFENDANT MOUNSAVENG: Yes.

“‘THE COURT: Mr. Sivongxxay?

 “‘THE DEFENDANT SIVONGXXAY: Yes.’” (Sivongxxay, 

supra, 3 Cal.5th at pp. 165-166.)
12

“Although the presence of counsel does not by itself mean 

‘that the defendant's interests and rights are protected . . . the 

fact of counsel being present and having advised the defendant is 

a factor to be considered in determining the question of the need 

for or sufficiency of any admonition given by the court. 

[Citations.]’ . . . Indeed, it would be to blink at the reality 

disclosed by this record to conclude other than that the 

[appellant’s] decision to have his fate determined by [the trial 

court], rather than by a jury, was a tactical decision entered into 

by [appellant] after consultation with and advice from 

experienced and capable defense counsel.”2 (State v. Cobb (1999) 

251 Conn. 285, 373 (Cobb); see also People v. Doyle (2016) 19 

Cal.App.5th 946, 953 [waiver of jury trial valid because 

“defendant’s counsel advised the trial court she had discussed 

defendant’s waiver of a jury trial with him on two occasions” and 

“[t]here is nothing in the record to support that defendant was 

confused as to the right to a jury trial or that he did not 

knowingly waive that right”]; People v. Acosta (1971) 18 

Cal.App.3d 895, 902 [“We are not aware of any rule of law that 

entitles a defendant who is represented by counsel and who has 

discussed waiver of a jury trial with his counsel, as here, to have 

the court advise him of the merits or the disadvantages of a trial 

by jury, as against a court trial”]; People v. Wrest (1992) 3 Cal.4th 

1088, 1105 [“There is no constitutional requirement that 

appellant understand ‘all the ins and outs’ of a jury trial in order 

to waive his right to one”].)

Appellant’s extensive experience with the criminal justice 

system is significant. In concluding that the defendant in 

2 We take judicial notice that trial counsel was admitted to 

the State Bar of California in 1980. 
13

Sivongxxay had knowingly and intelligently waived his right to a 

jury trial, our Supreme Court considered that “defendant had 

prior experience with the criminal justice system, having pleaded 

guilty to two prior offenses in Oregon and one in Washington 

State.” (Sivongxxay, supra, 3 Cal.5th at p. 167.) The Sivongxxay 

defendant’s experience with the criminal justice system was 

miniscule compared to appellant’s experience. (See Parke v. 

Raley (1992) 506 U.S. 20, 37 [“We have previously treated 

evidence of a defendant's prior experience with the criminal 

justice system as relevant to the question whether he knowingly 

waived constitutional rights”]; People v. Langdon (1959) 52 

Cal.2d 425, 432 [trial court not required to “explain[] to 

defendant the nature and possible consequence of his action in 

waiving a jury trial” since “[d]efendant not only was represented 

by counsel, but according to the record had also been before the 

criminal courts on at least three previous occasions”]; Cobb, 

supra, 251 Conn. at p. 372 [in concluding that defendant’s jury 

waiver was valid, court took into account that “‘[t]he defendant 

was not a novice in the criminal justice system’” and “had been 

advised of his right to a jury trial in relation with another sexual 

assault charge”]; Poore v. State (Ind. 1997) 681 N.E.2d 204, 207 

[“Poore’s significant criminal history suggests a high level of 

familiarity with the judicial process, making it quite likely that 

he knew what a ‘jury’ was”].)

Response to Dissenting Opinion

The dissent concludes that appellant’s status as “a 

mentally disordered offender who suffers from schizophrenia . . . 

raises a doubt” whether he understood the significance of the 

right he was waiving. (Dis. Opn., post, at p. 1.) The dissent puts 

too much emphasis on appellant’s mental illness at the expense 
14

of “the totality of the circumstances presented here.” 

(Sivongxxay, supra, 3 Cal.5th at p. 189.) “A schizophrenic 

condition does not render a defendant incapable of effectively 

waiving his rights.” (People v. Watson (1977) 75 Cal.App.3d 384, 

397.) The California Supreme Court found that a 13-year-old 

minor had knowingly and intelligently waived his Miranda rights 

(Miranda v. Arizona (1966) 384 U.S. 436) despite his “young age 

and low intelligence” and his diagnosis as a “paranoid 

schizophrenic.” (People v. Lewis (2001) 26 Cal.4th 334, 384.)

The dissent overlooks the crucial role of counsel. “Counsel 

is presumed competent and informed as to applicable 

constitutional and statutory law. . . . Counsel . . . can be 

expected, where necessary or advisable, to consult with the client 

about jury trial concerns. [Citation.]” (People v. Barrett (2012) 54 

Cal.4th 1081, 1105; see also Conservatorship of John L. (2010) 48 

Cal.4th 131, 151 [“Like all lawyers, the court-appointed attorney 

is obligated to keep her client fully informed about the 

proceedings at hand, [and] to advise the client of his rights”]; 

People v. Daniels (2017) 3 Cal.5th 961, 996 (lead opn. of Cuéllar, 

J.) [“Counsel plays a crucial part in transmitting information to 

the client [about waiver of the right to a jury trial]. Time and 

time again, our precedent has recognized as much, incorporating 

within the totality of relevant circumstances not only the fact of 

representation by counsel, but also record references to 

discussions between counsel and defendant”]; Id. at p. 999

[“Courts generally rely on counsel to transmit to defendants 

critical information about whether to waive the jury trial right 

and the consequences of waiving it”]; People v. Diaz (1992) 3 

Cal.4th 495, 571 [jury waiver valid because, among other factors,
15

“defendant acknowledged that he had thoroughly discussed the 

jury waiver with his attorney”].)

Here, counsel informed the trial court that he had “spoken 

to [appellant] about his jury trial rights.” Appellant responded in 

the affirmative to the court’s question, “[Counsel] indicates that 

you understand that right [the right to a jury trial]; is that true?” 

The dissent’s rejection of appellant’s affirmative response is 

based on speculation that, because of his “mental health issues 

dating from his childhood,” he did not understand his right to a 

jury trial. (Dis. Opn., post, at p. 2.) No expert testimony or any 

other evidence was presented on this issue. “[A]n inference 

[cannot] be based on mere possibility or flow from suspicion, 

imagination, speculation, supposition, surmise, conjecture or 

guesswork.” (Kidron v. Movie Acquisition Corp. (1995) 40 

Cal.App.4th 1571, 1581.) “It must logically flow from other facts 

established in the action.” (People v. Austin (1994) 23 

Cal.App.4th 1596, 1604, disapproved on another ground in People

v. Palmer (2001) 24 Cal.4th 856, 861, 867.) Other facts here –

appellant’s extensive experience with the criminal justice system, 

as manifested by his 30-page rap sheet, and the colloquy among

the court, counsel, and appellant at the time of the jury waiver –

show that appellant understood his right to a jury trial. “The 

record reveals no hesitation by [appellant] in entering the waiver, 

nor uncertainty or confusion about its scope or 

consequences . . . .” (Sivongxxay, supra, 3 Cal.5th at p. 188.)

The Supreme Court’s recommendation of an extended jury 

advisement/waiver colloquy is to be applauded. (Sivongxxay, 

supra, 3 Cal.5th at pp. 169-170.) But the recommendation is not 

a straitjacket to be used in the pursuit of perfect justice. (See 

Fleming, The Price of Perfect Justice (1974).) “‘“Matters of 
16

reality . . . should be controlling.”’” (Sivongxxay, supra, 3 Cal.5th 

at p. 170.) Matters of reality here confirm that appellant 

knowingly and intelligently waived his right to a jury trial. 

Conclusion

In Sivongxxay our Supreme Court noted: “[I]n various 

contexts in which we have been called upon to ascertain whether 

a waiver of constitutional rights was knowing and intelligent, we 

have not focused myopically on the waiver colloquy in isolation, 

but instead have conducted a more comprehensive assessment of 

the totality of the circumstances. [Citations.] . . . [H]ere the 

relevant circumstances include not only the colloquy, but also 

defendant's prior criminal history, . . . and the fact that 

defendant was represented by counsel.” (Sivongxxay, supra, 3 

Cal.5th at p. 173, fn. 8.) In the present case, an additional 

relevant circumstance is that counsel discussed the jury waiver 

with appellant. We “uphold the validity of [the] jury waiver” 

because “‘“the record affirmatively shows that [the waiver] is 

voluntary and intelligent under the totality of the 

circumstances.”’” (People v. Daniels, supra, 3 Cal.5th at p. 991 

(lead opn. of Cuéllar, J.).)

Disposition

The order committing appellant for treatment to the 

Department of State Hospitals as an MDO is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

I concur:

PERREN, J.
1

GILBERT, P.J.

I respectfully dissent.

My colleagues attribute a degree of sophistication to B.P. 

that might not be there. They make a plausible argument that 

he may be well versed in and understand the nature of jury 

trials. But such conjecture does not convince me to reject both 

B.P.’s and the Attorney General’s arguments. The Attorney 

General quotes this court’s caution in People v. Blancett (2017) 15 

Cal.App.5th 1200, 1202: “Prior to conducting a bench trial, the 

trial court must obtain personally from an MDO defendant a 

knowing, intelligent, and voluntary waiver of the right to a jury 

trial unless the court finds substantial evidence that the 

defendant lacks the capacity to make such a waiver.” (Ibid., 

quoting People v. Blackburn (2015) 61 Cal.4th 1113, 1116.)

Although B.P. pleaded guilty to offenses including child

molestation prior to the instant MDO hearing, we know nothing 

about the nature or extent of the advisements, if any, he received 

before entering earlier pleas. The majority argues that “[f]or 

three of the many misdemeanor convictions, the rap sheet shows 

that, while represented by counsel, he (B.P.) waived his right to a 

jury trial.” (Maj. opn. ante, at p. 8.)

The assumption that B.P. knew the significance of a jury 

waiver assumes he had the capacity to waive jury. His lengthy 

record renders this assumption seemingly reasonable on one 

hand, but highly problematic on the other. He is a mentally 

disordered offender who suffers from schizophrenia. To what 

extent this may affect his capacity to waive jury I leave to others, 

but it raises a doubt in my mind. 

I cannot say whether B.P.’s past jury waivers were affected 

by his mental illness. Neither can I determine whether those 
2

past judicial encounters were fresh in his mind at the time of this 

hearing. 

B.P. was initially found incompetent to stand trial on the 

commitment offense. He has a long history of mental health 

issues dating from his childhood. This history suggests that 

whatever B.P.’s interaction with the court system in the past, his 

current jury waiver, “yeah,” said twice over a Zoom hearing, is 

not reassuring. 

The remand in Blackburn was limited to the circumstances 

of that case. There is no reason here that a limited remand 

involving the trial court’s inquiry concerning B.P.’s 

understanding of the nature of a jury trial would not be 

appropriate. Depending upon B.P.’s responses, the court will be 

in a position to determine whether his waiver of jury trial was 

knowing, intelligent, and voluntary. 

I would remand in accordance with the Attorney General’s 

suggestion. 

NOT TO BE PUBLISHED.

GILBERT, P. J.
Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Christian C. Buckley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 

Deputy Attorney General, Eric J. Kohm, Deputy Attorney 

General, for Plaintiff and Respondent.