Filed 10/23/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO FORD,

Defendant and Appellant.

 B300043

 (Los Angeles County

 Super. Ct. No. ZM028642-01)

APPEAL from an order of the Superior Court of Los 

Angeles County, James Bianco, Judge. Conditionally 

reversed and remanded with directions.

Jean Matulis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Jaime L. Fuster and 
2

Joseph P. Lee, Deputy Attorneys General, for Plaintiff and 

Respondent.

___________________________________________________

INTRODUCTION

The People petitioned to extend appellant Armando 

Ford’s involuntary commitment under Penal Code section 

1026.5, and the trial court set the matter for a pre-trial 

hearing.1 Despite the trial court’s order that appellant be 

transported to the hearing, the state hospital failed to do so. 

In appellant’s absence, his appointed counsel presented a 

psychiatrist’s single-paragraph letter opining that appellant

lacked the capacity to decide whether to waive his right to a 

jury trial. Based on this letter, the trial court found 

appellant incompetent to decide whether to waive his right 

to a jury. Appellant’s counsel then waived his right to a jury 

on his behalf. Following a bench trial, the court found the 

People’s petition true and extended appellant’s commitment. 

On appeal, appellant contends the trial court erred by, 

inter alia, deciding in his absence that he was incompetent 

to decide whether to waive this right, and by accepting his 

counsel’s waiver. The Attorney General does not dispute 

that the court erred but argues any error was harmless 

beyond a reasonable doubt. We conclude appellant’s absence 

at the proceeding was prejudicial. We therefore

1 Undesignated statutory references are to the Penal Code.
3

conditionally reverse the trial court’s extension order and 

remand for further proceedings.

BACKGROUND

A. Appellant’s Initial Commitment and the People’s

 Extension Petition 

In 2013, appellant pleaded not guilty by reason of 

insanity (NGI) to attempted kidnapping, was found legally 

insane at the time of his offense, and was committed to a 

state hospital under section 1026.

2 In February 2019, a few 

months before his maximum commitment date, the People 

petitioned to extend appellant’s commitment by two years 

under section 1026.5, alleging he represented a substantial 

danger of physical harm to others due to his mental illness.

The trial court held an arraignment hearing in 

appellant’s absence and appointed two psychiatrists to 

examine him: Dr. Kory Knapke for the defense and 

Dr. Gordon Plotkin for the People. The court then set the 

matter for a pre-trial hearing on April 25, 2019, and ordered 

the state hospital to transport appellant to the hearing. 

Appellant’s counsel informed the court that appellant would 

likely demand a jury trial. 

2 As to the circumstances of his offense, appellant claimed he 

was experiencing hallucinations that led him to believe a car was 

on fire, prompting him to attempt to “‘rescue’” a child from inside 

the vehicle. 
4

B. The April 25 Pre-Trial Hearing, Dr. Knapke’s Letter,

 and Counsel’s Waiver of Appellant’s Right to a Jury

 Trial

Despite the court’s order, the state hospital failed to 

transport appellant to the April 25 hearing, and the hearing 

proceeded in his absence. At the hearing, appellant’s 

counsel presented a single-paragraph letter from 

Dr. Knapke, opining that appellant lacked the capacity to 

decide whether to waive his right to a jury trial. This letter 

stated: “As part of my evaluation that I conducted on 

[appellant] on April 19, 2019, at Patton State Hospital 

(PSH), I also addressed the patient’s capacity to waive jury. 

[Appellant] appeared to be very confused during this 

interview about the nature of the upcoming proceedings. 

Throughout this clinical interview, he argued about evidence 

against him in his committing offense as if he believed that 

his upcoming court proceedings in the mental health court 

are related to litigation involving the committing offense. 

He insisted that his attorney is not following up with the 

evidence to exonerate him from the crime itself. It became 

clear during this interview that [appellant] is confused and 

disorganized in his thinking and does not understand basic 

courtroom proceedings, especially in regards to the nature of 

his upcoming court proceedings. He believes that a jury 

should listen to new evidence involved in the underlying 

crime because he believes they will find him not guilty. I do 

not believe [appellant] has the capacity to waive jury and he 

remains very psychotic and heavily medicated.” 
5

Based on Dr. Knapke’s letter, the trial court found 

appellant incompetent to decide whether to waive his jury 

rights. Appellant’s counsel then waived appellant’s right to 

a jury on his behalf, and the People followed suit. 

Appellant’s counsel requested that the court set trial for a 

date the state hospital could transport appellant because 

“[h]e likes to appear in person.” The court agreed, set the 

matter for a bench trial on May 30, 2019, and ordered the 

state hospital to transport appellant to court for the trial. 

C. The Trial to Extend Appellant’s Commitment

1. The Prosecution Case

Dr. Plotkin was the People’s sole witness. He 

interviewed and evaluated appellant on April 15, 2019, 

about six weeks before the trial. Dr. Plotkin testified that 

appellant had been diagnosed with schizophrenia, and 

displayed symptoms consistent with that diagnosis at the 

time of their interview, including disorganized thoughts, 

paranoia, and delusions. According to Dr. Plotkin, 

appellant’s thinking was so disorganized that he had 

difficulty staying on track and answering questions without 

going off-topic. Dr. Plotkin stated that appellant had very 

poor insight into his mental illness, and testified that when 

he asked appellant if he believed he needed medication, 

appellant suggested he did not.

Dr. Plotkin referenced several disciplinary and 

behavioral issues appellant had during his commitment, 

including incidents in which he had allegedly assaulted or 
6

attempted to assault others. Based on his evaluation, 

Dr. Plotkin opined that appellant was a substantial danger 

of physical harm to others and could not control his impulses 

due to his mental disorder. 

2. The Defense Case 

Appellant testified on his own behalf. In response to 

his counsel’s questioning, he acknowledged he had a mental 

disorder; he was initially diagnosed with schizophrenia but 

his diagnosis had been changed to “bipolar schizoaffective.” 

According to appellant, he had heard voices in the past, but 

the medication he was taking was helping, and he no longer 

heard voices. He reported that with the medication, he was 

able to be coherent with his peers, talk to his doctor, and 

attend all his group meetings. 

Appellant described his plan for release from the 

hospital: his cousin in Sonoma County would help him go to 

the social security office, obtain Medi-Cal, and get his 

medications. His backup plan involved leaving California 

and going back to his family in Georgia, where he would seek 

the assistance of Georgia’s Department of Behavioral 

Health. 

When asked about the behavioral incidents during his 

commitment, appellant offered various explanations, and 

asserted that he would never hit anyone and was not 

dangerous because he had “a soft heart.” Appellant ended 

his testimony by addressing the court, stating that he knew 

he had a mental illness, but that he also knew it could be 
7

treated with medication and therapy, and that he would rely 

on his family’s help. 

D. The Trial Court’s Ruling

Following the hearing, the trial court found the 

petition true and extended appellant’s commitment by two 

years. In so doing, the court told appellant he was doing 

better compared to previous times he had been before the 

court, and remarked, “In fact, I suspect you’re doing better 

than Dr. Plotkin -- he’s nodding his head -- even better than 

when he saw you about six weeks ago.” Nevertheless, the 

court concluded appellant was not ready to be released and 

ordered his continued commitment. Appellant timely 

appealed, challenging the trial court’s finding that he was 

incompetent to decide whether he wanted a jury trial, and 

its acceptance of his counsel’s jury waiver, all in his absence. 

DISCUSSION

A. Applicable Law

A criminal defendant found not guilty by reason of 

insanity may be committed to a state medical facility for a 

period equal to the maximum sentence the court could have 

been imposed for the underlying offense. (§ 1026.5, subd. 

(a)(1).) Before this term expires, the prosecuting attorney

may file a petition with the superior court seeking to extend 

the defendant’s commitment by two years. (§ 1026.5, subd. 

(b)(2), (8).) After the prosecutor files an extension petition, 

the court must “advise the person named in the petition of 
8

the right to be represented by an attorney and of the right to 

a jury trial.” (Id., subd. (b)(3).) Trial on the petition “shall 

be by jury unless waived by both the person and the 

prosecuting attorney.” (Id., subd. (b)(4).) The NGI 

defendant “shall be entitled to the rights guaranteed under 

the federal and State Constitutions for criminal proceedings” 

and “[a]ll proceedings shall be in accordance with applicable 

constitutional guarantees.” (Id., subd. (b)(7).)

In People v. Tran (2015) 61 Cal.4th 1160, 1166 (Tran), 

our Supreme Court held that under section 1026.5, the trial 

court must advise an NGI defendant personally -- in court 

and on the record -- of the right to a jury trial on an 

extension petition. Similarly, the court held that only the 

defendant himself or herself may waive the right to a jury, 

unless there is substantial evidence that the defendant lacks 

the capacity to make that decision. (Tran, supra, at 1167.)

Only if substantial evidence suggests the defendant is 

incompetent to decide whether to waive a jury will the 

defendant’s counsel control that decision. (Ibid.) “In this 

context, evidence is substantial when it raises a reasonable 

doubt about the defendant’s capacity to make a knowing and 

voluntary waiver, and the trial court’s finding of a 

reasonable doubt must appear on the record.” (Ibid.)

A knowing jury waiver “requires an appreciation of the 

nature of the jury trial right and the consequences of 

forgoing this right.” (People v. Sivongxxay (2017) 3 Cal.5th 

151, 171 (Sivongxxay), italics omitted.) Competence to make 

the decision, however, requires only the “capacity” to 
9

comprehend it (Tran, supra, 61 Cal.4th at 1167); it does not 

require a preexisting understanding of the meaning of a jury 

trial and the consequences of any waiver. Indeed, section 

1026.5’s requirement of a personal advisement of the right 

recognizes that the NGI defendant may not be sufficiently 

aware of it, and it is intended to allow even an uninitiated 

defendant to make an informed choice. (See People v. 

Blackburn (2015) 61 Cal.4th 1113, 1125 (Blackburn) [“The 

purpose of an advisement is to inform the defendant of a 

particular right so that he or she can make an informed 

choice about whether to waive that right”].)

B. Analysis

Appellant contends the trial court violated his 

constitutional due process right to be present at the April 25 

hearing at which it found him incompetent to decide if he 

wanted a jury trial.

3 The Attorney General does not dispute 

that appellant was denied his constitutional right to be 

present, but argues that any error was harmless beyond a 

reasonable doubt under Chapman v. California (1967) 386 

U.S. 18 (Chapman) because appellant’s presence at the 

hearing would not have changed the outcome. Under 

3 Courts have recognized that persons subject to civil 

commitment have a due process right to be present at critical 

stages of the proceedings. (See, e.g., People v. Wilkinson (2010) 

185 Cal.App.4th 543, 547-550 [“mentally retarded” individual]; 

People v. Fisher (2009) 172 Cal.App.4th 1006, 1013 [mentally 

disordered offender].)
10

Chapman, it is the People’s burden to show that any federal 

constitutional error was harmless beyond a reasonable 

doubt. (People v. Jackson (2014) 58 Cal.4th 724, 748.)

We are unpersuaded by the Attorney General’s 

contention that appellant’s presence would have made no 

difference in the court’s assessment of appellant’s capacity to 

waive his right to a jury trial. In enacting section 1026.5, 

the Legislature envisioned a pre-trial hearing at which the 

NGI defendant is not only present but is also addressed 

directly by the court concerning his or her right to a jury 

trial. (See § 1026.5, subd. (b)(3); Tran, supra, 61 Cal.4th at 

1166.) This procedure provides an opportunity for 

meaningful interaction between the defendant and the court 

on the topic of the defendant’s right to a jury. The court’s 

direct observation of the NGI defendant may be the most 

relevant evidence of the defendant’s competence to make an 

informed decision. (Cf. Conservatorship of Pamela J. (2005) 

133 Cal.App.4th 807, 824 [court will be hard-pressed to 

decide whether patient is competent to refuse electroconvulsive therapy unless patient is present at hearing]; 

Blackburn, supra, 61 Cal.4th at 1131 [discussing case where 

civil-commitment defendant told trial court that invisible 

police were sexually assaulting him as he spoke, and noting 

that court’s direct observation provided ample basis to doubt 

defendant’s capacity to make knowing waiver decision]; In re 

R.V. (2015) 61 Cal.4th 181, 199 [in competency hearing, trier 

of fact may observe person’s behavior and interactions with 

counsel].) That the court found appellant incompetent in his
11

absence may have deprived him of the opportunity to 

present his strongest evidence of his own competence.

Appellant’s subsequent testimony at trial suggests that 

had he been present at the April 25 hearing, he might well 

have been able to dispel any doubt about his capacity to 

understand the jury-waiver decision. His testimony was 

coherent and responsive to the questions he was asked. He 

stressed he was not dangerous, a necessary element for the 

extension of his commitment, and emphasized favorable 

facts, such as his regular attendance at group meetings. 

And at the end of his testimony, he addressed the court with 

a closing statement consistent with the theme of his 

testimony, in a final attempt to persuade the court that he 

should be released. The court itself was apparently 

impressed by appellant’s testimony, noting his improvement 

from prior times he had been before the court. Appellant’s 

testimony showed, at the very least, that he understood who 

the decisionmaker was, what was being decided, and what 

considerations were pertinent -- factors that would have 

been highly relevant to an informed jury-waiver decision. 

(See Sivongxxay, supra, 3 Cal.5th at 171.) Appellant’s 

presentation at trial could have persuaded a court that he 

was fully competent to decide on his own whether he wanted 

a jury trial. 

In attempting to show that appellant’s absence from 

the April 25 hearing was not prejudicial, the Attorney 

General makes two arguments based on Tran. Neither is 

persuasive. First, the Attorney General contends our 
12

Supreme Court in Tran did not contemplate contested 

competency hearings. This contention is misguided. In 

Tran, the trial court accepted a jury waiver by an NGI 

defendant’s counsel without making an on-the-record 

incompetence finding. (Tran, supra, 61 Cal.4th at 1164.) 

Our Supreme Court held that absent such a finding, an NGI 

defendant must personally waive the right to a jury. (Id. at 

1167.) However, it noted that the trial court and the parties, 

relying on prior law, may have failed to make a record of the 

defendant’s personal waiver or his incompetence to make it. 

(Id. at 1170.) Accordingly, the Tran court remanded for the 

People to submit evidence, if any, that the defendant had 

made a personal waiver or that he lacked the capacity to 

make it “at the time of defense counsel’s waiver.” (Ibid.) 

This procedure was meant to fill a potential gap in the 

record, rather than to model competency hearings in future 

cases.

Second, the Attorney General claims that under Tran, 

“any error” in accepting counsel’s waiver of a jury may be 

deemed harmless “‘if the record affirmatively shows that 

there was substantial evidence that the defendant lacked 

that capacity [to make a knowing and voluntary waiver] at 

the time of defense counsel’s waiver.’” The Attorney General 

again misreads Tran. There, our Supreme Court stated that 

“[a] trial court’s acceptance of counsel’s waiver without an 

explicit finding of substantial evidence that the NGI 

defendant lacked the capacity to make a knowing and 

voluntary waiver may be deemed harmless if the record 
13

affirmatively shows that there was substantial evidence that 

the defendant lacked that capacity at the time of defense 

counsel’s waiver.” (Tran, supra, 61 Cal.4th at 1170, italics 

added.) Tran does not stand for the proposition that 

violating the defendant’s right to be present and thus 

slanting the record against him or her will be harmless 

merely because the same incomplete record raises doubts 

about the defendant’s competence. 

The Attorney General emphasizes that the trial court 

credited Dr. Knapke’s opinion that appellant lacked the 

capacity to make a knowing waiver. But the fact that the 

court credited an expert’s uncontradicted opinion does not

mean it would not have reached a different conclusion had 

contrary evidence been available to it. (In re R.V., supra, 61 

Cal.4th at 216 [court in competency proceeding need not 

defer to expert’s opinion; “‘“To hold otherwise would be in 

effect to substitute a trial by ‘experts’ for a trial by [the 

finder of fact]”’”].) 

Nor does Dr. Knapke’s single-paragraph letter inspire 

such confidence in his opinion that appellant could not have 

dispelled any doubt about his competence. The letter 

focused almost exclusively on appellant’s misapprehension of 

the purpose of the upcoming proceeding, including his desire 

for a jury to consider evidence relating to his underlying 

offense.4 As explained, however, in the context of appellant’s 

4 As noted, Dr. Knapke’s letter stated that appellant “[was] 

very confused . . . about the nature of the upcoming proceedings,”

(Fn. is continued on the next page.)
14

competency, the relevant question was not whether he then 

possessed the necessary knowledge to make an informed 

waiver decision, but whether he had the capacity to 

understand the decision, once informed of his right to make 

it. (See Tran, supra, 61 Cal. 4th at 1167; Blackburn, supra,

61 Cal.4th at 1125.) 

Moreover, even assuming appellant was incompetent to 

make a jury-waiver decision at the time of his interview with 

Dr. Knapke, we could not conclude he would necessarily 

have been in a similar state almost a week later, at the time 

of the April 25 hearing. Indeed, Dr. Plotkin, the People’s 

expert, apparently agreed after appellant’s testimony that 

his mental state had significantly improved from the time of 

their April 15 interview, 10 days before the pretrial hearing 

at issue. On the record before us, we are not confident the 

“argued about evidence against him in his committing offense as 

if he believed that his upcoming court proceedings in the mental 

health court are related to litigation involving the committing 

offense,” “insisted that his attorney is not following up with the 

evidence to exonerate him from the crime itself, “does not 

understand basic courtroom proceedings, especially in regards to 

the nature of his upcoming court proceedings,” and “believes that 

a jury should listen to new evidence involved in the underlying 

crime because he believes they will find him not guilty.” He 

further described appellant as “very psychotic and heavily 

medicated.”
15

violation of appellant’s right to be present at the April 25 

hearing was harmless beyond a reasonable doubt.5 

5 We need not consider whether a jury trial might have 

yielded a more favorable outcome for appellant. Accepting an 

invalid jury-trial waiver results “in a complete denial of the 

defendant’s right to a jury trial,” and thus “automatically 

requires reversal.” (Tran, supra, 61 Cal.4th at 1169.)
16

DISPOSITION

The order extending appellant’s commitment is 

conditionally reversed, and the matter is remanded for the 

trial court to conduct a hearing in appellant’s presence to 

determine his current competence to waive his right to a jury 

trial. The extension order shall be reinstated if: (1) the 

court again finds appellant incompetent to waive his jury 

rights; (2) appellant knowingly and voluntarily waives his 

right to a jury; or (3) a jury finds the People’s petition true. 

CERTIFIED FOR PUBLICATION

 MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.