People v. Aguayo CA2/6

Filed 7/20/23 P. v. Aguayo CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B323572 (Super. Ct. No. 22PT-00293) Plaintiff and Respondent, (San Luis Obispo County)

v.

OCTAVIO ARELLANO AGUAYO,

Defendant and Appellant.

Octavio Arellano Aguayo appeals the judgment following a court trial extending his civil commitment as an offender with a mental health disorder (OMD).1 (Pen. Code, § 2972.)2 Aguayo contends the jury trial waiver by counsel was invalid because

Effective January 1, 2020, the designation “mentally 1 disordered offender” was replaced with “an offender with a mental health disorder.” (Pen. Code, § 2962, subd. (d)(3), as amended by Stats. 2019, ch. 649, § 1.)

2 Undesignated statutory references are to the Penal Code.

substantial evidence did not establish his incapacity to waive jury. We agree and reverse for a new trial. FACTUAL AND PROCEDURAL HISTORY Aguayo was convicted of lewd acts on a child by force or violence (§ 288, subd. (b)), attempted kidnapping (§§ 664, 207, subd. (a)), and assault by a prisoner (§ 4501). He has been committed to the state hospital as an OMD since 2005. The People filed a petition to extend his commitment. Aguayo appeared at a readiness conference remotely via Zoom with a Spanish language interpreter and defense counsel. Counsel told the court he discussed the issue of a jury trial or a court trial with Aguayo, and “had significant reservations about whether or not [Aguayo] could understand and make a knowing and voluntary and intelligent election in that regard.” The trial court stated, “Defense counsel’s in a better position than the Court talking to a client through an interpreter on Zoom, which is the case here.” The court said it would defer to defense counsel’s opinion and proceed with the scheduled jury trial. Defense counsel and the prosecutor said the court was required “to have a discussion with the patient” before making a determination whether Aguayo was competent to waive jury. The following colloquy then occurred: “THE COURT: Okay. Okay. I’ll do it. Okay. [¶] Now to the interpreter. Mr. Aguayo, do you understand that you have a right to a jury trial in this case? “THE DEFENDANT: (No audible response). “THE COURT: Okay. There’s no response. [¶] Mr. Aguayo, do you understand what a jury trial is? [¶] Can you hear, first of all? Can you raise your hand or say ‘yes’ or ‘no’ to that? “THE DEFENDANT: (No audible response).