People v. McMahan, E047833 (Cal. App. 3/4/2010)

• Decision Date: 04 March 2010
• Docket Number: E047833.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD McMAHAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD McMAHAN, Defendant and Appellant.

E047833.

Court of Appeals of California, Fourth Appellate District, Division Two.

March 4, 2010.

Appeal from the Superior Court of Riverside County, No. RIC485829, Jean P. Leonard, Judge. Reversed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports

OPINION

HOLLENHORST, Acting P. J.

Following a court trial on March 3, 2009, defendant and appellant John Edward McMahan (McMahan) was found to be a danger to the health and welfare of others within the meaning of the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)¹ The court ordered McMahan committed to the custody of the state Department of Mental Health. On appeal, he contends he was never personally advised of his right to a jury trial and there is no evidence that he personally waived such right.

I. FACTS

McMahan has three predicate offenses. The first was a 1981 rape that occurred in Missouri when he was 22 years old.² Upon his release in 1989, he came to California and was arrested for attempted rape of a woman in a swimming pool in Riverside County. After he was sentenced to state prison, he was charged and convicted of assault with intent to commit rape of a female prison counselor at Avenal State Prison in 1990. There was another sexual offense, but it was not a predicate offense. It occurred shortly before the 1989 offense and involved a situation in which McMahan allegedly solicited a woman for an act of oral copulation.

Clinical and forensic psychologist Eric Simon, Ph.D., and clinical psychologist Michael Musacco, Ph.D., testified. Both discussed the predicate offenses and opined that they were predatory in nature, as the victims were not known to McMahan. Both diagnosed him as having paraphilia "not otherwise specified," sexual activity with nonconsenting partners, and voyeurism.³ Dr. Simon testified that McMahan is compulsively fixated on, and sexually aroused by, raping women. Dr. Musacco opined that McMahan represents a serious well-founded risk of re-engaging in sexually violent predatory criminal behavior.

McMahan did not testify.

II. DISCUSSION

On July 18, 2008, McMahan and his counsel were present when the "Hearing re Trial" was set for March 3, 2009. The minutes note that the "Hearing is for Court Trial." Again on October 1, 2008, McMahan and his counsel were present at the hearing regarding probable cause. The minutes note: "Counsel stipulate: SUBMITT [sic] TO THE COURT 6600 WI." Finally, on October 15, 2008, a request for continuance was filed. Both McMahan and his counsel signed the request that identified the pending trial of the SVPA petition as a "court trial." On appeal, McMahan contends the record is void of any evidence indicating he was ever personally advised of his right to a jury trial, and that he personally waived the same. Thus, McMahan seeks reversal of the court's judgment.

The Sixth Amendment of the United States Constitution states, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ." Thus, the federal right to jury trial expressly extends only to criminal prosecutions.

Article I, section 16 of the California Constitution provides: "Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict, a jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute." Thus, in this state, the right to a jury is afforded to both criminal and civil litigants. However, a criminal defendant's right to a jury trial may be waived only by his or her own express consent in open court, whereas a civil litigant's right may be waived as legislatively prescribed.

While extended commitment proceedings are generally civil in nature, they are distinguished from ordinary civil actions. Rather, they are special proceedings because they are neither an action at law nor a suit in equity. (Code Civ. Proc., §§ 22, 23 [actions are ordinary proceedings by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; every other remedy is a special proceeding].) They are initiated by a petition "`independently of a pending action'" and are "`of a character unknown at common law.'" (People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell).) "`And, in such civil proceedings, unknown to the common law (as distinguished from ordinary civil and criminal cases), the use of a jury is a matter of legislative grant and not of constitutional right. [Citation.]' [Citations.]" (Id. at pp. 451-452.)

According to the Supreme Court of California, a section 6600 et. seq. proceeding is a special proceeding of a civil nature rather than a criminal action. (People v. Yartz (2005) 37 Cal.4th 529, 532 [an "SVPA civil commitment proceeding is a special proceeding of a civil nature, and not a `civil suit' under Penal Code section 1016, former subdivision (3)" (kinds of pleas)]; People v. Allen (2008) 44 Cal.4th 843, 860 (Allen).) This court has agreed. (People v. Dixon (2007) 148 Cal.App.4th 414, 442 [Fourth Dist., Div. Two] ["a proceeding under the SVPA is civil in nature"].) Section 6603⁴ governs the right to a jury trial in SVPA cases. That section mandates that the truth of an SVPA petition be resolved by a court trial unless one of the parties demands a jury. The clear language notes that McMahan was "entitled" to a jury trial if he demanded one. (§ 6603, subds. (a), (e).) However, there is nothing in the record that definitively shows McMahan was apprised of this entitlement.

Instead, the record before this court shows that defendant and his counsel were present when the hearing was set as a court trial, and that defense counsel submitted to a court trial. There is no evidence that defendant was made aware of his right and decided whether or not to exercise it. Rather, in the trial brief prepared on behalf of McMahan, defense counsel merely acknowledged the fact that McMahan was entitled to a jury trial, but stated: "There is no requirement for personal waiver of right to jury trial; counsel may withdraw for client."

The People point to the document entitled Request for Continuance, which was filed on October 15, 2008. Because it was signed by both McMahan and defense counsel, and it identified the then pending trial as a court trial, the People argue that McMahan's signature indicates his decision to have the underlying SVPA petition litigated as a court trial. While McMahan's signature may suggest he knew of his right to a jury trial and opted to waive it, we cannot say it is conclusive proof of such decision. Lawyers present many documents to their clients for signature without fully explaining the document or making sure the client has read and understood it. Here, we choose to err on the side of caution.

In People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas), the defendant claimed his section 6500 (sometimes referred to as the Mentally Retarded Persons Law) commitment had to be reversed because the record failed to "show an advisement and waiver of the right to a jury trial on the issues of dangerousness and retardation . . . ." (Alvas, at p. 1462.) The court concluded the contention had to be "sustained pursuant to both the equal protection and the due process clauses of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) and as a consequence this matter must be reversed and remanded for retrial." (Id. at p. 1463.) Specifically, the Alvas court said, "We think it is beyond dispute that the right to a jury trial in adult involuntary commitment proceedings is a right of constitutional dimension. Where `a constitutional right exists, it must be observed unless waived and . . . a waiver implies, among other things, a knowledge that the right existed.' [Citations.] Consequently, a defendant proceeded against under section 6500 must be advised of his right to a jury trial." (Id. at pp. 1465.)

We agree with the Alvas court. Because the record is void of any evidence as to whether McMahan had knowledge of his right to a jury trial, we must reverse.

The People disagree and urge us to apply the decision in Rowell. In that case, our colleagues in the Third District addressed the defendant's claim that the trial court erred by accepting his counsel's representation, in a written declaration filed under penalty of perjury, that the defendant no longer wanted a jury trial in his SVPA proceeding. (Rowell, supra, 133 Cal.App.4th at pp. 450, 452.) Noting that an SVPA proceeding is civil in nature and not subject to the state and federal constitutional protection of the right to jury trial afforded to criminal defendants, the court held the right was validly waived by defense counsel, and that the defendant's personal waiver was not required. (Rowell, supra, at pp. 453-454.)

McMahan urges us not to follow Rowell. According to McMahan, Rowell should not be followed because (1) the same court later issued an opinion, which called the Rowell decision into question (People v. Bailie (2006) 144 Cal.App.4th 841), and (2) Rowell failed to engage in a four-part analysis,⁵ as was done in Allen to determine what process is due before deciding that the court was not required to personally advise a sexually violent predator defendant of his right to a...