People v. Mortimer CA6

Filed 3/23/16 P. v. Mortimer CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H037530 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 190802)

v.

PETER FREIDERICH MORTIMER,

Defendant and Appellant.

This case is before us after being returned from the Supreme Court with orders to vacate our decision in People v. Mortimer (2013) 215 Cal.App.4th 860, affirming the order committing the defendant for an additional year, and to reconsider the cause in light of People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn) and People v. Tran (2015) 61 Cal.4th 1160 (Tran). After the Supreme Court returned the case to this court, appellant Peter Freiderich Mortimer filed a supplemental brief asking that this court reverse the commitment order outright and order appellant released, instead of remanding the matter for further proceedings at the trial court. Respondent has not filed a supplemental response brief. Pursuant to Blackburn, and Tran, we decline to reverse the order of commitment and immediately release appellant, but will remand the matter to the trial court for further proceedings to determine whether appellant knowingly waived his right to jury trial or whether there was sufficient evidence to support the finding that appellant lacked the capacity to personally waive this right.

FACTUAL AND PROCEDURAL BACKGROUND In 1996, appellant was found not guilty by reason of insanity (NGI) of assault with a deadly weapon, battery on a peace officer, and resisting arrest. (Pen. Code, §§ 148, subd. (a), 242, 243, subd. (b), 245, subd. (a)(1).) The trial court committed him to the Department of Mental Health (Department) for treatment at Napa State Hospital (Pen. Code, § 1026.5, subd. (a).)1 The trial court had extended his commitment multiple times, when on May 18, 2011, the Santa Clara County District Attorney filed a petition to extend it again. (Pen. Code, § 1026.5, subd. (b).) Prior to trial, defense counsel advised the court that appellant wanted a bench trial. On October 20, 2011, after a bench trial, the court sustained the petition and extended appellant’s commitment to December 5, 2013. Appellant filed an appeal in this court, arguing that the trial court violated his constitutional and statutory rights by failing to advise him of his right to a jury trial, and conducting a bench trial without obtaining his express, personal waiver. This court, in a published decision, affirmed the order, holding that the statutory scheme does not require a personal jury waiver. Rather, we concluded that counsel could waive a jury trial at a client’s direction, with his or her consent, or on behalf of a client who is not sufficiently competent to do so. The Supreme granted review and held the case pending resolution of Blackburn and Tran. The Supreme Court has now returned the case to this court with directions to reconsider the cause in light of those two cases. DISCUSSION In Blackburn, the California Supreme Court, granted review of a case from this Court where appellant was ordered recommitted under the Mentally Disturbed Offender statutory scheme (Pen. Code, §§ 2960 et seq), but where counsel waived the statutory right to jury trial on behalf of the appellant. In reviewing the nature of this statutory