It's a conservatorship case where the appellant (B.K.) is an institutionalized schizophrenic and, at the most recent annual hearing, is found at a bench trial to still be gravely disabled. Appellant contends on appeal that she didn't properly waive her right to a jury trial, but the Court of Appeal affirms.
The two tangential things first.
First, the Court of Appeal drops a footnote that refers expressly to appellant's appointed appellate lawyer (though not by name). The Court of Appeal concludes that the proper resolution of this appeal is largely controlled by a prior case, Conservatorship
of C.O. (2021) 71 Cal.App.5th 894, 904 (C.O.). Here's what the Court of Appeal says in footnote 5:
"B.K.’s appellate briefing cites C.O. only in a “but see”
parenthetical about harmless error. We remind B.K.’s counsel,
that “[a]ttorneys are officers of the court and have an ethical
obligation to advise the court of legal authority that is directly
contrary to a claim being pressed.” (In re Reno (2012) 55 Cal.4th
428, 510, superseded by statute on other grounds as stated in In
re Friend (2021) 11 Cal.5th 720, 728.) We trust that counsel will
meet this ethical obligation in all future briefing."
A subtle (or perhaps not-so-subtle) reminder.
Second, I just thought it was interesting how the whole waiver thing works out. As a reminder: B.K. is schizophrenic. So her reasoning process is less than perfect. The Court of Appeal is ultimately right that, on the day of trial, B.K. personally waived her right to a jury trial. Here's what she said at that point:
“Ms. Altes: So we had a conversation about court
versus jury trial and that we would have the court
trial today, and I believe [B.K.] would like to have her
trial today which would mean it would be a court
trial.
[B.K.]: Yeah.
The court: Okay. So that means you are waiving
and giving up your right to have a jury trial to have a
court trial today with me; is that right?
[B.K.]: Right.
The court: Counsel joins?
Ms. Altes: Yes.”
Yep. That's a waiver.
But contrast that brief waiver to B.K.'s prior, quite expansive and deliberate, previous demands for a jury trial in the underlying case, just four months previously:
“The court: [B.K.], we are here to see whether or not
you want to stay on conservatorship for another year
and have [M.G.] remain your conservator. What do
you think?
[B.K.]: No. I want a jury trial.
The court: okay. So that means you want to get off
conservatorship, you don’t want [M.G.] to remain as
your conservator, and we have a trial, right?
[B.K.]: I want a jury trial.
[¶] . . . [¶]
The court: Why would you like to have a jury trial
instead of a court trial? It is your choice. I just want
to know the reason.
“[B.K.]: I want a jury trial because I want to get off
conservatorship.
The court: Okay.
[B.K.]: I want a jury trial.
The court: Okay.”
That's pretty darn clear, no? I just thought it interesting that we're happy with a two-word waiver from a schizophrenic who's admittedly hearing voices when she's previously expressed clearly and at length why she most definitely wants a jury trial.
Oh, and maybe this is "Third," but just as a general matter, I thought that the opinion gave an interesting insight into the internal thought process of B.K. when it recounted some of B.K.'s trial testimony. Here's a part:
"B.K. also testified on her own behalf. She stated that her
medications had no effect other than causing unpleasant side
effects. She also testified, “I like the voices” and “I want to keep the voices.'"
Classic line. "I like the voices."
Okay, now to the doctrinal part. The part I sincerely hope that Justice Collins removes from the opinion.
Here's the very last paragraph:
"Even if we were to assume for the sake of argument that an
additional advisement was required before the court accepted
B.K.’s waiver, any error was harmless. (C.O., supra, 71
Cal.App.5th at p. 919 [applying a harmless error analysis]; People
v. Sivongxxay, supra, 3 Cal.5th at p. 187 [same].) Under the
harmless error standard, B.K. must show that it is reasonably
probable that a result more favorable to her would have been
reached in the absence of the error. (C.O., supra, 71 Cal.App.5th
at p. 917.) B.K. has not made such a showing. B.K. does not
challenge the court’s finding that she was gravely disabled, which
was supported by the testimony of Dr. Arom and B.K. herself.
There is no suggestion that a jury trial, had B.K. chosen one,
would have resulted in a different outcome. B.K. therefore has
failed to demonstrate reversible error."
With utmost respect to Justice Collins and her chambers, that's 100% wrong.
When you're deprived of a jury trial, that's categorically structural error, and is not subject to harmless error review. That's because, among other things, we can never tell for sure what a jury would have done as opposed to a judge. That's blackletter law. By contrast, the two cases that Justice Collins cites both hold that inadequate advisement of the right to a jury trial is subject to harmless error review if the evidence is clear that the defendant would have waived their jury trial right anyway. That's crystal clear from Sivongxxay and C.O. themselves. (Sivongxxay: "This assessment entails a review of the record to ascertain whether it reveals a reasonable probability that the defendant would have opted for a jury trial . . . [W]e consider what the defendant would have done, not what we believe he should have done. . . . In conclusion, because the record before this court on appeal provides no basis for concluding that defendant would have chosen a jury trial . . . we find the error harmless under the Watson standard." C.O.: " We also see nothing in the record suggesting that C.O. would have elected a jury trial over a court trial if the trial court had advised him personally at the court proceeding of his right to the former. The omission of the jury trial advisement was harmless on this record.").
Today's opinion finds harmless error because it thinks that there's no evidence that a jury would have decided differently than the judge. But that's always the case: the whole point of structural error is that we don't want judges -- appellate or otherwise -- deciding whether a jury would have found the same way as a judge, and also don't think that doing so is even possible. The whole point is that juries and judges are different. It may be harmless error, as in Sivongxxay and C.O., if the defendant was going to waive a jury trial right anyway, regardless of the error. But that's radically different than how the Court of Appeal finds harmless error here.
Now, I think I understand why the last paragraph goes astray on this point. For one thing, harmless error is a complex and multifaceted issue, and it's easy to get confused on precisely which of the various trial components constitute structural error or not. For another, there's a loose sentence in C.O. -- before the critical harmless error analysis I quote above -- that does indeed say that there's no reason to believe that a jury trial would have come out very different. To be honest, that sentence shouldn't have been in C.O. either, but regardless, it's not the holding, nor would reliance upon it be an accurate statement of the law. Still, I could see how someone might potentially get confused, and think that harmless error analysis in this context meant X (what would happen on the merits at a jury trial) when it actually means Y (what would happen vis-a-vis the defendant's choice of judge versus jury if there was no error).
But to reiterate: It definitely means Y.
If you are deprived of your right to a jury, we don't say "Oh well, the result would have probably been the same anyway; it's not like the Sixth Amendment is a big deal or anything." And were the law to the contrary, pretty much every deprivation of the right to a jury trial would be harmless, since defendants can rarely (if ever) demonstrate that the result would have been different. We instead find harmless error only if you would have waived your jury trial right anyway. If so, it's harmless.
So I hope that the Court of Appeal deletes the last paragraph. Yes, it's technically dicta. But it's also doctrinally wrong, and I would hate for future opinions to rely on that paragraph -- or make the same mistake.
