People v. Otis

Opinion

GILBERT, Acting P. J. J.In a court trial Jerry Otis was adjudged to be a mentally disordered offender (MDO). (Pen. Code, § 2960 et seq.)1 Otis’s counsel had waived a jury. The only question on appeal is whether Otis must personally waive a jury. We conclude defense counsel may act on his behalf. We affirm.

Procedural History

The Board of Prison Terms determined Otis qualified as an MDO. (§ 2966, subd. (a).) Otis filed a petition in superior court challenging that determination. (§ 2966, subd. (b).)

On the morning of trial Otis’s counsel waived a jury. Otis disagreed with his counsel and requested a jury trial. Otis also told the court that invisible [1176]police had been sexually assaulting him and were sexually assaulting him as he spoke to the court. The court stated for the record that Otis was not being assaulted in court. The court accepted counsel’s waiver of a jury over Otis’s objection.

The trial court denied Otis’s petition based on the testimony of his treating psychiatrist at Atascadero State Hospital.

Discussion

Otis does not dispute that an MDO proceeding is a civil, rather than a criminal, matter. (See People v. Robinson (1998) 63 Cal.App.4th 348 [74 Cal.Rptr.2d 52].) Generally in civil cases, an attorney has “complete charge and supervision” to waive a jury. (Zurich G.A.& L. Ins. Co., Ltd. v. Kinsler (1938) 12 Cal.2d 98, 105 [81 P.2d 913] [attorney could choose jury trial over client’s objection]; see Giouzelis v. McDonald (1981) 119 Cal.App.3d 436, 445-446 [174 Cal.Rptr. 58] [attorney could stipulate to beginning deliberations with less than all jurors].)

Otis, however, relies on section 2966, subdivision (b), a provision specifically applicable to MDO proceedings. That subdivision provides, in part, “The trial shall be by jury unless waived by both the person and the district attorney.”

Otis construes “person” as used in the subdivision to require that any waiver be made by the person himself. But nothing in the requirement that the waiver must be by “the person” precludes the person’s attorney from acting on his behalf. The Legislature did not say the waiver had to be made “personally.”