People v. O'Day CA6

Filed 3/23/16 P. v. O’Day CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041099 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC116051)

v.

JAMES ALLEN O’DAY,

Defendant and Appellant.

Appellant James Allen O’Day challenges an order extending his commitment under Penal Code section 1026.5, after being found not guilty by reason of insanity. He contends that the trial court erred by failing to obtain a personal waiver of the right to a jury in the commitment proceeding. After the opening brief was filed, but before the respondent filed its brief, the California Supreme Court’s decided People v. Tran (2015) 61 Cal.4th 1160 (Tran) which found that personal knowing waivers of the right to jury trial were required in recommitment proceedings, unless there was substantial evidence that appellant lacked the capacity to waive that right. In light of Tran, respondent concedes that the case is properly returned to the trial court for further proceedings. We agree that the case should be remanded to the trial court, therefore, we will reverse and remand for further proceedings consistent with Tran.

FACTUAL AND PROCEDURAL BACKGROUND In 2001, appellant approached a woman on the street and asked for a dollar. When the woman refused, appellant became angry and slammed her to the ground, causing a three-inch hematoma on the back of her head. Appellant was found not guilty by reason of insanity of assault likely to cause great bodily injury, with an allegation that appellant personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) He was committed to Atascadero State Hospital, and was subsequently transferred to Napa State Hospital, where he has resided ever since. On December 31, 2013, the Santa Clara County District Attorney filed a petition to extend appellant’s commitment for two years. (Pen. Code, § 1026.5, subd. (b).) On January 31, 2014, appellant’s attorney advised the trial court that appellant was not present and waived appellant’s presence. Counsel further advised the court that appellant had informed him the day before that he wished to waive his right to a jury trial, and proceed by way of court trial. Nothing in the record reflects any advisement given to defendant by the court of the right to a jury trial, and there is no evidence that defendant personally and knowingly waived his jury trial right, or that he lacked the capacity to do so. The trial court held a bench trial on May 22, 2014.1 On the same date, the court found the petition true and ordered appellant’s commitment extended for two years. Appellant filed a timely notice of appeal on June 6, 2014. DISCUSSION On appeal, appellant contends that the order extending his commitment must be reversed because the trial court failed of to advise appellant of his right to a jury trial and failed to obtain an express personal waiver. Because of the Supreme Court’s recent decisions in People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and Tran, supra, 61