PEOPLE v. MASTERSON

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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Todd MASTERSON, Defendant and Appellant.

No. E011130.

Decided: March 09, 1994

William Flenniken, Jr., San Francisco, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Holly D. Wilkens, Supervising Deputy Atty. Gen., and Karl T. Terp, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

This appeal concerns a single issue of first impression:  whether or not counsel can stipulate, over a criminal defendant's objection, to a panel of only 11 jurors in a trial of defendant's competency to stand trial on criminal charges.

The People charged defendant in a felony complaint with one count of attempted first degree murder and one count of second degree robbery.   They also alleged that defendant had used a firearm in both offenses, had caused great bodily injury, and had previously committed four other felonies.   The charges arose from an incident at a discount drug store in which defendant allegedly shoplifted some merchandise and, when detected, shot a security guard.

Before the preliminary hearing could be held, the magistrate declared a doubt pursuant to Penal Code section 1368 regarding defendant's competency to stand trial and certified the case to the superior court for trial on the issue of competency.   A jury of 11 persons found defendant competent to be tried.

The magistrate then bound defendant over for trial on the two counts and allegations set out above, as well as a third count, possession of a firearm by a felon;  and a fourth count, first degree residential burglary.   Defendant pled not guilty and not guilty by reason of insanity.   A jury returned a verdict of guilty as to the first three counts and the special allegations and also found that defendant was sane when he committed the offenses.   The trial court imposed upon defendant a determinate term of 28 years, and a consecutive term of life with possibility of parole.

FACTS 1

After the parties to the competency trial had chosen 11 jurors from an entire venire panel, counsel for both parties agreed to stipulate that the jury panel for the trial would consist of only 11 jurors.   Counsel also agreed to stipulate that, if one or more jurors had to be excused during trial, the remaining jurors could decide the issue of defendant's competency to stand trial.   The court queried defendant as to whether he understood and agreed to the stipulation, and defendant indicated his objection to both parts of the stipulation.   Nevertheless, the court accepted the stipulations, and trial of the matter proceeded with 11 jurors.

The defense, which bore the burden of proof on the issue of competency, and took the position at trial that defendant was incompetent to stand trial, presented its case first.2  It called as witnesses the two psychologists who had been appointed by the court to examine defendant concerning his competency to stand trial—Doctors Assandri and Christensen.   The record does not indicate that either party presented any evidence besides the doctors' testimony.

Dr. Assandri, a psychologist concentrating his practice in the area of forensics, testified on direct examination that in his opinion defendant was incompetent to stand trial on the pending criminal charges.   The doctor had been practicing with the San Bernardino County Department of Mental Health for five years, and had examined and reported on 30 to 40 persons whose competency to stand trial was in question.   In defendant's case, he had reviewed the police reports and jail infirmary notes relating to defendant, then examined defendant for about 90 minutes.   He asked defendant standard questions in order to assess his present mental condition, and also administered a test regularly used at Patton State Hospital to assess whether a defendant is competent to stand trial.   During the examination, defendant was very rigid, stared at the wall at times, appeared to be hearing voices or hallucinating, and often moved back and forth, making bizarre noises.   Based on this examination, Dr. Assandri determined that defendant “had a minimum understanding of the charges brought against him, but was unable to appreciate and understand the major components of the legal system and had problems cooperating with his attorney.”

In response to further questioning by defense counsel, Dr. Assandri opined that defendant was probably suffering from both paranoid schizophrenia and an antisocial personality disorder.   He based his opinion on his observations of defendant, as well as on mental health reports prepared by psychologists, psychiatrists, and other health professionals during defendant's earlier incarcerations.3  These records revealed that defendant had previously been classified as a paranoid schizophrenic, and had at times been immobile, or “catatonic,” while in prison.

Dr. Assandri explained that it is impossible to be one hundred percent sure that a person who purports to be mentally ill is not malingering, because psychology is not an exact science.   However, the doctor opined that defendant was not malingering.   He observed that during the examination defendant tried very hard to minimize his symptoms of mental disturbance, denying that he was hallucinating or hearing voices and defensively refusing to respond to questions.   This behavior is very symptomatic of paranoia, while a person who is malingering would exaggerate his symptoms, admitting to having delusions and hearing voices.

The prosecution began its cross-examination of Dr. Assandri by eliciting from him the fact that a person found incompetent to stand trial might, after as brief a period as six months, be placed on outpatient status and placed under supervision in a board-and-care home in the community.   He also drew from the doctor the fact that he had only once previously testified in court on the issue of competency to stand trial.   The doctor testified that he had not administered standardized tests designed to reveal that defendant was mentally diseased or trying to fake mental illness.   He also testified that he thought the defendant might have lied to him in totally denying any knowledge of the alleged offenses, and that he could not know for sure that defendant was not malingering.

Dr. Christensen, when called as a witness, also opined that defendant was incompetent to stand trial.   The doctor explained that he was a psychologist who practiced in the field of forensic psychology and had been employed by the San Bernardino County Department of Mental Health for approximately 13 years.   He also stated that he had testified on the issue of a defendant's competence to stand trial between 175 and 200 times.   Before testifying in defendant's case, Dr. Christensen had read the police report, the felony complaint, and the infirmary records from the jail.   Based on these records and on his interview with and observation of defendant, he had concluded that defendant was incompetent to stand trial and probably suffering from a major mental illness.

The doctor acknowledged that psychology is an inexact science, but, based on his wide experience, he believed that defendant was not malingering.   Defendant, while in the doctor's presence, exhibited unusual and bizarre behaviors which were atypical of malingering.   He did not attempt to convince the doctor that he was suffering from any particular disease or hallucinating, as would a malingerer;  while not rude, he did not respond to the doctor's questions and stood staring at the wall during the interview.   At the end of the interview, defendant refused a referral to a psychiatrist for anti-psychotic medications.

Based on his observations of defendant's behavior, Dr. Christensen had formed a clinical opinion or “hunch” that defendant might be suffering from paranoid schizophrenia or chronic acute and delusional paranoid disorder.   His review of the prison records furnished to him after his interview with defendant “confirmed the hypothesis ․ that [defendant] suffered from a major ongoing mental disorder.”   The doctor stated that he had not spent sufficient time evaluating defendant to be able to actually diagnose defendant's mental illness.   This, in his opinion, could be accomplished only by conducting a series of one-on-one sessions and administering diagnostic tests.   He explained that he had spent only about 20 minutes trying to interview defendant, who was unresponsive to his questions and indicated that he did not want to talk any longer.

Dr. Christensen also explained to the jury that, if defendant were found incompetent to stand trial and had not recovered sufficiently to stand trial in three years, he must either be released from locked facilities or committed to an institutional setting pursuant to civil conservatorship.

A unanimous jury rendered a verdict that defendant was competent to be tried for alleged criminal offenses.

DISCUSSION

Defendant contends that the court's acceptance of the stipulation that the jury panel would consist of only 11 jurors, and of fewer jurors if any were not able to complete their service, despite his in-court objection, was reversible error.   He argues that going forward with only 11 jurors abridged his right to a jury trial.   The People argue, however, that because the right to a jury trial in competency proceedings is statutory, not constitutional, it is subject to waiver by trial counsel without a defendant's consent and over his objection.   Consequently, they maintain, defense counsel's “license to make such decisions logically includes the decision to accept a jury of only 11 members” in competency trials.

 A proceeding to determine competency to stand trial is neither a criminal action nor a civil action;  rather, it is a special proceeding.  (Code Civ.Proc., § 23;  People v. Hill (1967) 67 Cal.2d 105, 114, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796, 798, 215 Cal.Rptr. 482;  People v. Loomis (1938) 27 Cal.App.2d 236, 239, 80 P.2d 1012.)   Special proceedings are those legal proceedings which were neither actions at law nor suits in equity.  (Code Civ.Proc., §§ 22–23;  Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 714, 196 Cal.Rptr. 920.)   As such, they carry with them no constitutional right to trial by jury;  the only right to trial in a special proceeding is that provided by statute, even though such a proceeding may be collateral to a criminal trial.   (McPeters, supra, 169 Cal.App.3d at p. 798, 215 Cal.Rptr. 482;  Hill, supra, 67 Cal.2d at p. 114, 60 Cal.Rptr. 234, 429 P.2d 586.)

 Our courts have determined that proceedings to determine competency to stand trial are “civil in nature” because they neither try an accused for an alleged offense nor subject him or her to punishment.   (People v. Superior Court (McPeters), supra, 169 Cal.App.3d at p. 798, 215 Cal.Rptr. 482;  People v. Rojas (1981) 118 Cal.App.3d 278, 283, 173 Cal.Rptr. 64;  People v. Conrad (1982) 132 Cal.App.3d 361, 368, 182 Cal.Rptr. 912;  see People v. Hill, supra, 67 Cal.2d at p. 114, 60 Cal.Rptr. 234, 429 P.2d 586;  People v. Loomis, supra, 27 Cal.App.2d at p. 239, 80 P.2d 1012.)   Because of their civil nature, such proceedings are conducted according to the rules for civil actions.  (People v. Skeirik (1991) 229 Cal.App.3d 444, 455, 280 Cal.Rptr. 175;  People v. Fields (1965) 62 Cal.2d 538, 540, 42 Cal.Rptr. 833, 399 P.2d 369 [right to appeal determination of incompetency governed by the Code of Civil Procedure];  Conrad, supra, 132 Cal.App.3d at p. 368, 182 Cal.Rptr. 912 [trial court may enter judgment notwithstanding the verdict pursuant to Code of Civil Procedure section 629 in an incompetency proceeding];  see 5 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Trial, § 2989, pp. 3667–3668.)

 Defendants who are the subject of competency proceedings have the statutory right to a jury trial under Penal Code sections 1368 and 1369.  Penal Code section 1368 provides that a hearing shall be held for a defendant whose competency to stand trial is in question, pursuant to the procedures set out in Penal Code section 1369.  Penal Code section 1369 in turn provides for trial “by court or jury.”   The California Legislature has provided a statutory right to a jury in competency trials since 1851.  (Stats.1851, ch. 29, § 586, p. 277;  see Historical Note, 51A West's Ann.Pen.Code (1982 ed.) § 1368, p. 16.)   Trial by jury was in fact mandatory in such actions until 1937, when the Legislature amended Penal Code section 1368 to allow for a court trial unless a jury was demanded.  (Stats.1851, supra, at p. 277;  see Historical Note, 51A West's Ann.Pen.Code, supra, at p. 16.)

Article I, section 16 of the California Constitution provides that “[i]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.”  Section 631 of the Code of Civil Procedure implements this provision, providing in pertinent part that consent may be manifested “[b]y oral consent, in open court, entered in the minutes or docket.”  (Code Civ.Proc., § 631, subd. (a)(3).)   Neither the Constitution nor the Code authorizes waiver of the right to trial by jury by a party's counsel over his or her explicit objection.

Article I, section 16 also authorizes waiver of the right to 12 jurors in favor of a smaller panel if the parties consent, while Code of Civil Procedure section 220 (formerly section 194) provides that in civil actions the jury shall consist of 12 persons “or any number less than 12, upon which the parties may agree.” 4  Again, there is no provision for waiver by counsel of the right to 12 jurors over a party's explicit objection.

 The issue of whether or not counsel may waive the right to 12 jurors over his client's objection, either in special proceedings “civil in nature” or in civil actions, is a matter of first impression in this state.   This court has been able to find only six California cases which deal with waiver of the full complement of 12 jurors in a civil action, and none of these addresses the issue of waiver over a party's objection.5  As the court observed in Salton Bay Marina, Inc. v. Imperial Irrigation Dist., supra, 172 Cal.App.3d at p. 944, 218 Cal.Rptr. 839, these cases establish only that a party's silence alone does not establish a waiver of the right to a 12–person jury, but a party may not complain “on appeal of a lesser number if the party (1) stipulated to a lesser number, whether or not in open court[,] or (2) failed to enter timely objection to a jury of less than 12.”

Perhaps surprisingly, our state's appellate courts have also not yet ruled explicitly on the issue of whether or not counsel in a civil case may waive his client's right to trial by jury over the client's objection.   However, our Supreme Court has entertained two closely related issues.   Zurich G.A. & L. Ins. Co., Ltd. v. Kinsler (1938) 12 Cal.2d 98, 81 P.2d 913, overruled on other grounds in Fracasse v. Brent (1972) 6 Cal.3d 784, 792, 100 Cal.Rptr. 385, 494 P.2d 9, dealt with whether or not an attorney discharged without good cause on a contingency contract before trial could have complete fees as contemplated in the contract if the former client later prevailed at trial.  (Id., at pp. 99–100, 81 P.2d 913.)   Though the matter had not progressed to trial at the time the attorney was discharged, the client argued in the suit for fees that she had good cause to discharge counsel because of, among other things, his demand that she advance the cash for a jury trial.  (Id., at p. 104, 81 P.2d 913.)   The Supreme Court concluded that the attorney had not engaged in professional misconduct and observed in dicta:  “[I]t is well established law that the attorney has complete charge and supervision of the procedure that is to be adopted and pursued in the trial of an action;  and in accordance with that law, if [the attorney] wished to have a jury trial, he had a right to insist that the trial be so conducted.   In the case entitled Price v. McComish, 22 Cal.App.2d 92 [70 P.2d 978] [citations], the court said that, subject to the rule that an attorney in the conduct of a case may not impair the substantial rights of his client, nevertheless, ‘․ it is well established that, especially in what may be termed purely procedural matters ․ an attorney is fully authorized’ to bind his client.”  (Id., 12 Cal.2d at p. 105, 81 P.2d 913.) 6

Forty-seven years after Zurich, Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 212 Cal.Rptr. 151, 696 P.2d 645, took a narrower view of what decisions in a civil suit are purely procedural and thus part of the attorney's authority in litigating a civil action.   In that case, an attorney stipulated to binding arbitration of a pending law suit without his client's express authority and contrary to her express instructions.  (Id., at p. 403, 212 Cal.Rptr. 151, 696 P.2d 645.)   The court held that an attorney hired to litigate a civil action has no authority to bind his or her client to an agreement for arbitration without obtaining the client's consent.  (Id., at pp. 407–408, 212 Cal.Rptr. 151, 696 P.2d 645.)

 In so holding, the Blanton court pointed out that the attorney is captain of the ship in civil cases, so that agreements and stipulations he or she makes which “ ‘affect only the procedure or remedy as distinguished from the cause of action itself, and the essential rights of the client, are binding on the client.  [Citation.]’  (Linsk v. Linsk (1969) 70 Cal.2d 272, 276–277 [74 Cal.Rptr. 544, 449 P.2d 760] [citation].)”  (Blanton v. Womancare, Inc., supra, 38 Cal.3d at p. 404, 212 Cal.Rptr. 151, 696 P.2d 645.)   However, the attorney cannot bind his or her client without consent in procedural matters which affect substantial rights, such as the decision as to whether to agree to binding arbitration.  (Id., at pp. 405–408, 212 Cal.Rptr. 151, 696 P.2d 645.)  “Such decisions differ from the routine and tactical decisions which have been called ‘procedural’ both in the degree to which they affect the client's interest, and the degree to which they involve matters of judgment which extend beyond technical competence so that any client would be expected to share in the making of them.”  (Id., at p. 405, 212 Cal.Rptr. 151, 696 P.2d 645.)   The court characterized the stipulation as an agreement for change to a different forum without consent of the client.  (Id., at p. 408, 212 Cal.Rptr. 151, 696 P.2d 645.)

The concurring opinion in Blanton v. Womancare Inc., supra, 38 Cal.3d at p. 409, 212 Cal.Rptr. 151, 696 P.2d 645, lamented the failure of the majority to set forth specific guidelines as to when attorneys may act without the express consent of their clients.   It also pointed out that by stipulating to binding arbitration without his client's knowledge or consent, the attorney had effectively waived his client's right to a jury trial, and commented extensively on this action:  “The right to trial by jury, in both civil and criminal matters, is a basic and fundamental part of our system of jurisprudence.  [Citations.]  It is a historically important right, which has been called the principal bulwark of our liberties.  [Citations.] ․ [¶] ․ The right to a jury trial is fundamental and should be zealously guarded by the courts.  [Citations.]  In case of doubt ․, the issue should be resolved in favor of preserving a litigant's right to trial by jury․  [¶] That right may not be waived by implication, but only affirmatively and in the manner designated by Code of Civil Procedure section 631.  [Citations.]  [¶] ․ Although the acts described will normally be performed by counsel, the statute by its terms is concerned with waiver of a jury trial by the several parties.   (Code Civ.Proc., § 631, italics added.)  [¶] Nothing in the statute gives an attorney the authority to waive the client's right to a jury trial without the client's knowledge and consent.”  (Id., at pp. 411, 212 Cal.Rptr. 151, 696 P.2d 645, internal quotation marks omitted.)

In reaching its decision in Blanton v. Womancare, Inc., supra, 38 Cal.3d 396, 212 Cal.Rptr. 151, 696 P.2d 645, our Supreme Court relied on its own decision in Linsk v. Linsk, supra, 70 Cal.2d 272, 74 Cal.Rptr. 544, 449 P.2d 760.  Linsk concerned an attorney's stipulation without his client's consent and over her express objection, known to both the court and the opposing party, that a divorce action which had ended in mistrial due to the trial judge's disability might be decided by a second judge upon the record made in the original trial, without the client's being able to introduce additional evidence.  (Id., at pp. 275–276, 74 Cal.Rptr. 544, 449 P.2d 760.)   The Linsk court in turn drew on a long line of cases treating on the authority of counsel in civil cases to bind a client to a stipulation without the client's consent.  (Id., at pp. 276–278, 74 Cal.Rptr. 544, 449 P.2d 760.)   It determined that the attorney had no power to bind his client to the evidentiary stipulation, pointing out that “if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.”  (Id., at p. 278, 74 Cal.Rptr. 544, 449 P.2d 760.)   The court explained that the stipulation eliminated the client's important interest in having the trier of fact observe the demeanor of the witnesses.  (Id., at p. 279, 74 Cal.Rptr. 544, 449 P.2d 760.)

In the Linsk decision, the Supreme Court cited a number of cases in which our appellate courts have determined that the attorney has authority to make and implement decisions over the objection of a client.7  (linsk V. linsk, supra, 70 cal.2d at p. 277, 74 caL.rptr. 544, 449 P.2d 760.)   These include refusal to call a witness the client wants called, abandonment of a defense the attorney believes has no merit, and waiver of late filing of a complaint.  (Ibid.)  The court also listed numerous cases in which the attorney has been found to have no such authority, including decisions involving elimination of an essential defense, compromise of a claim, and waiver of findings so that no appeal can be prosecuted.  (Id., at pp. 277–278, 74 Cal.Rptr. 544, 449 P.2d 760.)   The court observed that “[t]he dichotomy in the foregoing cases appears to relate to whether the attorney has relinquished a substantial right of his client in entering into a stipulation on his behalf.”  (Id., at p. 278, 74 Cal.Rptr. 544, 449 P.2d 760.)   It also cited Knowlton v. Mackenzie (1895) 110 Cal. 183, 188, 42 P. 580, which had held that in matters of substantive rights, “As a general rule, a stipulation of the attorney will be presumed to have been authorized by the client, as well in order to uphold the action of the court, as for the protection of the other party to the stipulation;  but when the adverse party, as well as the court, is aware the attorney is acting in direct opposition to his client's instructions or wishes, the reason of the rule ceases, and the court ought not to act upon the stipulation, nor can the adverse party claim the right to enforce a judgment rendered by reason thereof.”

Cases following Linsk and Blanton have ruled that counsel may not waive the right to trial de novo from an arbitration award (Sanker v. Brown (1985) 167 Cal.App.3d 1144, 1147, 213 Cal.Rptr. 768) or stipulate to an increase in child support (In re Marriage of Helsel (1988) 198 Cal.App.3d 332, 339, 243 Cal.Rptr. 657) without the authorization of the client.   The appellate court in Helsel explained its understanding of the significance of Blanton:  “Blanton of course makes clear that a lawyer has no apparent authority merely by virtue of his status as a retained attorney to waive the client's constitutional right to a jury trial and agree to submit a case to binding arbitration.”  (Id., at p. 338, 243 Cal.Rptr. 657.)

 In the wake of Linsk and Blanton, and considering the importance of trial by jury in Anglo–American law, this court has no doubt that “[t]he right to trial by jury in a civil case is a substantial one not lightly to be deemed waived.”  (Trizec Properties, Inc. v. Superior Court (1991) 229 Cal.App.3d 1616, 1619, 280 Cal.Rptr. 885.)   Consequently, we conclude that counsel may not waive this right over the express objection of his or her client.  (Linsk v. Linsk, supra, 70 Cal.2d at p. 278, 74 Cal.Rptr. 544, 449 P.2d 760;  Knowlton v. Mackenzie, supra, 110 Cal. at p. 188, 42 P. 580.)   Because competency proceedings are in the nature of civil proceedings and must be conducted according to civil rules, we also conclude that in such proceedings counsel may not stipulate to waive his or her client's right to jury trial over the express objection of the client.8

The Attorney General argues that, because the right to trial by jury is only a statutory right in competency proceedings, it can be waived by stipulation of counsel over a defendant's express objection.   For this assertion, he relies on the recently published case of People v. Harris (1993) 14 Cal.App.4th 984, 992, 18 Cal.Rptr.2d 92, in which the court opined that because the jury trial right in competency proceedings is not constitutional, it may be waived by counsel without the consent of the client.   We think his reliance on Harris is not well placed.   First of all, Harris is dicta;  it was decided after the defendant, who had been found incompetent to stand trial, had been certified as competent, had been given a second competency hearing, and had been returned to the court for further criminal proceedings.9  (Id., at pp. 990, 996, 18 Cal.Rptr.2d 92.)   Second, there is no indication in Harris that defendant in fact expressly objected to waiver of jury trial in the original competency proceeding, so that such objection was known to the court and opposing counsel.   Also, there is no indication that the Harris court ever examined any civil rules or precedents to help it determine how a substantial, though purely statutory, right should be administered in a proceeding “civil in nature.”   In fact, the court cites no direct authority to support its opinion on this issue.   Once the court found the right to jury trial was statutory rather than constitutional, it blithely concluded counsel was authorized to waive jury trial without the client's consent, premised on the rule that trial counsel has the power to exercise independent judgment regarding strategic decisions at trial.  (Id., at p. 992, 18 Cal.Rptr.2d 92.)

 As our discussion has already illustrated, our Supreme Court has recognized several nonconstitutional rights to be substantial in nature, so that counsel may not waive them over the express objection of the client, including the right of appeal and the right to choose a nonjudicial forum (binding arbitration) over a judicial forum.  (Linsk v. Linsk, supra, 70 Cal.2d at pp. 277–278, 74 Cal.Rptr. 544, 449 P.2d 760, and cases cited therein;  Blanton v. Womancare, Inc., supra, 38 Cal.3d at p. 408, 212 Cal.Rptr. 151, 696 P.2d 645.)   Just two years ago the California Supreme Court determined that a defendant in a competency proceeding had the right to invoke his attorney-client privilege, though his attorney desired that he waive it.  (People v. Mickle (1991) 54 Cal.3d 140, 183–184, 284 Cal.Rptr. 511, 814 P.2d 290.)   Despite the special nature of competency proceedings, it is apparent that our Legislature has considered the right to jury trial as substantial in competency proceedings since California attained statehood, considering that it required jury trial in such matters beginning at that time.  (Stats.1851, supra, at p. 277.)   The right to trial by jury is particularly important to defendants in competency proceedings, given that there is a presumption such defendants are competent to stand trial, and that the burden of proof of incompetency rests upon them, not upon the People.   (Pen.Code, § 1369, subd. (f);  People v. Medina (1990) 51 Cal.3d 870, 885, 274 Cal.Rptr. 849, 799 P.2d 1282.)   To defer to the Harris opinion on this issue would be to elevate an accident of history—the lack of right to jury trial in competency proceedings under common law—over the teaching of our law in civil actions.

 Having concluded that counsel may not waive the right to a jury trial over a defendant's express objection in a competency trial, we hold that allowing defendant's counsel to stipulate to a jury of less than 12 persons over defendant's express objection in this case was judicial error.   While we do not agree with the dicta of People v. Harris, supra, 14 Cal.App.4th at p. 992, 18 Cal.Rptr.2d 92, we do agree with the Attorney General's reasoning that the person vested with the authority to make the decision as to whether to have a jury trial also has the right to decide whether the jury may consist of less than 12 jurors.   It is apparent that the right to agree to less than the full complement of 12 jurors is a substantial one in California law.   As noted above, it is reserved to the party in Article I, Section 16 of the California Constitution and in Code of Civil Procedure section 220 (formerly 194).  (See Meder v. Safeway Stores, Inc., supra, 98 Cal.App.3d at pp. 503–504, 159 Cal.Rptr. 609.)   We have no doubt that the exercise of this right is one of those characterized in Blanton v. Womancare, Inc., supra, 38 Cal.3d at p. 405, 212 Cal.Rptr. 151, 696 P.2d 645, as outside the authority of counsel to make routine, tactical decisions on his or her client's behalf, even over the objection of the client.

 In this instance, we cannot conclude that the error was harmless.   Evidence tending to show that defendant was incompetent to stand trial was extensive:  both experts, based on several years' experience in evaluating individuals' competency to stand trial, as well as examination of defendant and perusal of his mental health records, opined that defendant was incompetent;  though each acknowledged that there was a small chance that defendant was malingering.   The jury was informed there was a chance that defendant, who had allegedly committed a violent crime, might be released on outpatient status while under treatment for his incompetence, and would have to be institutionalized under a civil commitment or released to outpatient status if he had not recovered from his incompetency after three years.   As we have noted, the burden of proof of incompetency rested on defendant.  Penal Code section 1369, subdivision (f), requires that the jury verdict in competency proceedings be unanimous.

 Given these circumstances, we cannot say with any assurance that the addition of one juror to the deliberative process would have been less likely than not to have provided defendant with a verdict more favorable to him.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Moreover, trial of a criminal defendant who is incompetent to stand trial is a violation of his or her right to due process (Pate v. Robinson (1966) 383 U.S. 375, 377, 86 S.Ct. 836, 837, 15 L.Ed.2d 815;  People v. Hale (1988) 44 Cal.3d 531, 539, 244 Cal.Rptr. 114, 749 P.2d 769;  People v. Skeirik, supra, 229 Cal.App.3d at p. 455, 280 Cal.Rptr. 175), and under the standard for evaluation of constitutional error we cannot conclude that the error in this case was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Consequently, we must conclude that there has been a miscarriage of justice requiring reversal.  (See Hale, supra, 44 Cal.3d at pp. 539, 542, 244 Cal.Rptr. 114, 749 P.2d 769;  People v. Marks (1988) 45 Cal.3d 1335, 1344, 248 Cal.Rptr. 874, 756 P.2d 260.)

DISPOSITION

The judgment is reversed and the cause is remanded for further proceedings pursuant to Penal Code section 1368 to determine defendant's present competency to stand trial.

FOOTNOTES

1.   Because the only issue in this trial concerns the number of jurors at the competency trial, only facts germane to the competency trial are set out in this statement of facts.

2.   Defendant was thus in the position of “plaintiff” at the competency trial.   In the interests of consistency, however, we will continue to refer to him as the “defendant,” and to his position as the “defense,” while referring to his opponents as the “People” or the “prosecution.”

3.   Defendant had been incarcerated during most of his adult life.

4.   Former Code of Civil Procedure section 194, operative until 1989, provided that the jury might consist of “twelve or any number less than twelve, upon which the parties may agree in open court.”

5.   Gillespie v. Benson (1861) 18 Cal. 409, 411 [consent to a jury of less than 12 “must be express ․” and entered in open court;  failure to appear at trial does not constitute waiver];  Hitchcock v. Caruthers (1890) 82 Cal. 523, 526, 23 P. 48 [no new trial on grounds cause tried to 11–person jury, where record shows no objection raised at trial];  Meder v. Safeway Stores, Inc. (1979) 98 Cal.App.3d 497, 502–504, 159 Cal.Rptr. 609 [stipulation to jury of less than 12 must be entered on the minutes in open court, but defendant who expressly stipulated to such in chambers and participated without objection at trial estopped to deny consent on appeal];  Giouzelis v. McDonald (1981) 119 Cal.App.3d 436, 446, 174 Cal.Rptr. 58 [oral stipulation that 11 jurors may begin deliberations while twelfth juror is temporarily absent;  personal waiver by party not required];  Woods v. Pacific Greyhound Lines (1949) 91 Cal.App.2d 572, 574, 205 P.2d 738 [party may not expressly consent to excuse juror before deliberations, hoping for favorable verdict, then challenge lack of 12–person jury on appeal];  Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 943–945, 218 Cal.Rptr. 839 [no new trial where party failed to object when twelfth juror excused from trial].

6.   Though this case dealt with an attorney's insistence that his client exercise her right to a jury trial, rather than waiving it, the court cited an out-of-state case, Shores Co. v. Iowa Chemical Co. (1936) 222 Iowa 347, 268 N.W. 581, 582–583, in which it was held that an attorney in a civil trial could waive his client's right to a jury without the client's knowledge or consent, to illustrate the broad authority of the attorney in procedural matters.

7.   The Supreme Court did not include Zurich Gen. Acc. & Liab. Ins. Co., Ltd. v. Kinsler, supra, 12 Cal.2d 98, 81 P.2d 913 in this list, though it acknowledged its dictum statement about the attorney's right to insist on a jury trial over a client's objection.  (Linsk v. Linsk, supra, 70 Cal.2d at p. 277, fn. 3, 74 Cal.Rptr. 544, 449 P.2d 760.)

8.   In People v. Hill, supra, 67 Cal.2d at p. 114, 60 Cal.Rptr. 234, 429 P.2d 586, defendant argued that the court in a competency trial erred by not informing him of his right to a jury trial on demand.   Our Supreme Court ruled that the trial court had no duty to so inform.   (Ibid.)  The court remarked in dicta that, when defense counsel in a competency proceeding has doubts about defendant's sanity, counsel should be free to decide “how the proceeding should be conducted, ․ even contrary to the express desires of his client.”  (Id., at p. 115, fn. 4, 60 Cal.Rptr. 234, 429 P.2d 586.)   The court reasoned that “[w]hen evidence indicates that the defendant is insane it should be assumed that he is unable to act in his own best interests.”  (Ibid.)  This dicta, and the reasoning which underlies it, have not been followed in later Supreme Court cases dealing with waiver of substantial rights in competency proceedings.  (See People v. Mickle (1991) 54 Cal.3d 140, 183–184, 284 Cal.Rptr. 511, 814 P.2d 290, and People v. Medina (1990) 51 Cal.3d 870, 885, 274 Cal.Rptr. 849, 799 P.2d 1282, discussed infra.)   An assumption that a defendant in a competency proceeding is unable to act in his or her best interests also contradicts the presumption of competency set out in Penal Code section 1369, subd. (f).

9.   In its “Conclusion,” the court stated:  “We have addressed the foregoing issues for the purpose of providing guidance to the courts and parties.   No purpose would be served by vacating the expired commitment order.”  (People v. Harris, supra, 14 Cal.App.4th at p. 996, 18 Cal.Rptr.2d 92.)

McKINSTER, Associate Justice.

DABNEY, Acting P.J., and TIMLIN, J., concur.