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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Paul GAUWAIN, Defendant and Appellant.

Crim. No. B062882.

Decided: August 18, 1993

Paul M. Posner, Paso Robles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen.;   George Williamson, Chief Asst. Atty. Gen.;  Carol Wendelin Pollack, Sr. Asst. Atty. Gen.;   Robert Carl Schneider and Juliet H. Swoboda, Deputy Attys. Gen., for plaintiff and respondent.

Here we hold that an offender must personally waive his right to a 12–person jury in proceedings brought pursuant to Penal Code section 2960 et seq. for continuation of treatment as a severely mentally disordered offender and that lack of such waiver in this case requires reversal.

Paul Gauwain appeals from an order authorizing continuation of treatment as a severely mentally disordered offender as a condition of parole following his conviction of lewd conduct with a child.  (Pen.Code, §§ 288, subd. (a), 2966, subd. (c), 2972.) 1  He contends that:  1) he was denied his state constitutional and statutory rights to a 12–person jury because these rights could not be waived by counsel alone;  2) the judgment is unsupported by substantial evidence;  and 3) the trial court prejudicially erred by (a) overruling objections to the hearsay evidence of the expert witnesses as it related to the truth of the assertions as distinguished from the basis for an expert opinion and (b) failing to inform the jury that the hearsay evidence could not be used to establish underlying facts.   At the request of this court, the parties have also discussed whether the contentions are moot in light of expiration of the order under review.


On August 21, 1991, appellant was retained on parole and found to suffer a severe mental disorder that was not in remission and to represent a substantial danger of physical harm.   On September 3, 1991, appellant petitioned for a trial of the issue and a jury trial commenced on October 23, 1991.   Immediately preceding jury selection, appointed counsel stipulated to a trial by six jurors.   Appellant did not expressly agree to a jury of less than 12 persons nor was he asked to do so.2  Thereafter, the People presented the testimony of an Atascadero staff psychiatrist and a licensed psychologist, each of whom had evaluated appellant and reviewed his records.   Each concluded that appellant met the criteria of a prisoner with a severe mental disorder that was not in remission who represented a substantial physical danger to others, particularly young children.

During the pendency of this appeal, the order under review expired and appellant was again ordered held for treatment after a trial by a 12–person jury on October 16, 1992, and a new order was entered on October 26, 1992.   That order is the subject of an appeal in People v. Gauwain, case No. B071607.


1. Technical Mootness Does Not Preclude Review.

 Since appellant has already undergone at least one subsequent jury trial resulting in recommitment, we asked the parties to brief why we should not dismiss this appeal as moot.   We are persuaded by appellant's counsel that since appellant is subject to repetition of this process, “the issues are of recurring importance and time constraints make it likely any annual commitment will evade appellate review․”  (People v. Gibson (1988) 204 Cal.App.3d 1425, 1429, 252 Cal.Rptr. 56.)   Consequently, we will not dismiss the appeal but will discuss its merits.

2. Personal Waiver Required For Less Than 12–Person Jury.

 Appellant asserts that in a proceeding for continued involuntary treatment (§ 2970), counsel alone cannot waive the offender's right to a 12–person jury.   We agree.   Section 2970 provides that the district attorney may file a petition with the superior court for continued involuntary treatment of a mentally disordered offender (MDO) for one year where the prisoner has a severe mental disorder, the severe mental disorder is not in remission or cannot be kept in remission if the person's treatment is not continued, and that, by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others.   Section 2972 provides that at the hearing on the petition, the prisoner has the right to be represented by an attorney and the right to a jury trial.  “The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable.  [¶] The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict.   The trial shall be by jury unless waived by both the person and the district attorney․”  (§ 2972.)

 Under the United States Constitution, the Sixth Amendment guarantees the right to a jury trial in a criminal case, but does not require a 12–person jury.  (People v. Trejo (1990) 217 Cal.App.3d 1026, 1029, 266 Cal.Rptr. 266.)   A criminal trial with six or more jurors passes federal constitutional muster.  (Ibid.;  Williams v. Florida (1970) 399 U.S. 78, 103, 90 S.Ct. 1893, 1907, 26 L.Ed.2d 446, 462;  Ballew v. Georgia (1978) 435 U.S. 223, 245, 98 S.Ct. 1029, 1041, 55 L.Ed.2d 234, 250.)   The California Constitution, article 1, section 16, provides that a trial by jury is an inviolate right 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.  [¶] In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court․  [¶] In criminal actions in which a felony is charged, the jury shall consist of 12 persons.   In criminal actions in which a misdemeanor is charged, the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court.”

 “The purpose of the jury trial is to prevent oppression by the government.”  (People v. Trejo, supra, 217 Cal.App.3d 1026, 1031, 266 Cal.Rptr. 266.)   The California Constitution mandates a 12–person jury trial for a felony defendant unless the defendant waives the right to such a jury and the waiver must be “ ‘by the consent of both parties expressed in open court by the defendant and the defendant's counsel.’ ”  (Id., at p. 1033, 266 Cal.Rptr. 266;  Cal. Const., art. 1, § 16.)   The same requirements for a waiver of a jury trial are applicable to a trial by a lesser number.   (People v. Ames (1975) 52 Cal.App.3d 389, 392, 124 Cal.Rptr. 894;  see also People v. Compton (1971) 6 Cal.3d 55, 61, 98 Cal.Rptr. 217, 490 P.2d 537, in which the California Supreme Court stated that a personal waiver or stipulation by the defendant is needed to continue a trial with 11 jurors after one is properly discharged and there is no alternate.)

Respondent argues that since section 2972 states that “[t]he hearing shall be a civil hearing” (see also § 2966, subd. (b)), the civil standards apply and a stipulation of the party's attorney is sufficient.  (See Woods v. Pacific Greyhound Lines (1949) 91 Cal.App.2d 572, 574, 205 P.2d 738.)   Respondent also argues that since the matter pertains to conditions of parole, the right of a criminal defendant to a jury trial does not apply.   However, section 2972 specifically confers the right of a jury trial and a unanimous verdict with the standard of proof beyond a reasonable doubt.

In People v. Gibson, supra, 204 Cal.App.3d 1425, 1429, 252 Cal.Rptr. 56, this court found this statutory scheme penal in nature because “․ MDO commitments are:  (1) necessarily related to the commission of and conviction and imprisonment for crimes involving use of force or violence or in which serious bodily injury was inflicted;  (2) the commitment of MDO's can only be brought about by prison officials (§ 2962) or district attorneys (§ 2970);  and (3) the sole purpose is not treatment for the safety of the person committed but is primarily protection of the public (§ 2960), the same purpose for imposing imprisonment for criminal conduct.”  (Id., at p. 1433, 252 Cal.Rptr. 56.) 3

 As Gibson stated, the MDO provisions of section 2962 et seq. both increase punishment and alter the situation of the accused to his disadvantage.  (People v. Gibson, supra, 204 Cal.App.3d at p. 1431, 252 Cal.Rptr. 56.)   Consequently, section 2962 “has overwhelming penal attributes and therefore constitutes part of appellant's punishment for his criminal offense.”  (Id., at p. 1432, 252 Cal.Rptr. 56.)   Thus, a person to be committed or recommitted under this statutory provision should be entitled to the same constitutional safeguards as in any criminal proceedings.  (See also People v. Pretzer (1992) 9 Cal.App.4th 1078, 1084–1085, 11 Cal.Rptr.2d 860.)  Woods, cited by respondent, is inapposite since that case did not involve a specific statute mandating the manner in which waiver must be manifested.

3. Reversal Required.

 The final question is the standard to be used to assess the prejudice where there is an ineffective or nonexistent jury waiver.   Historically, California case law held that improper denial of right to jury for lack of effective waiver required reversal.  (See People v. Holmes (1960) 54 Cal.2d 442, 444, 5 Cal.Rptr. 871, 353 P.2d 583;  People v. Ames, supra, 52 Cal.App.3d 389, 392, 124 Cal.Rptr. 894.)   The standard of reversible error per se has been questioned recently since the California Supreme Court adopted the federal test of prejudice for errors involving Boykin/Tahl admonitions to determine the validity of guilty pleas under the federal Constitution.  “Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.”  (People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Here the error is not one of federal constitutional magnitude, but rather a violation of the California Constitution.   However, even if we use a lesser standard of prejudice such as that expressed in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, we reach the same result.   We cannot find lack of prejudice based solely upon the fact that appellant was represented by counsel at the proceedings.

Appellant's having undergone at least one subsequent trial for recommitment by a jury of twelve persons who determined that he should be recommitted does not cure the harm.   Appellant had a right under section 2972 to have a jury of twelve persons determine “․ that the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others ․” based upon his condition in 1991.   We have no way of knowing how a 12–person jury would have decided the issue at the 1991 recommitment proceedings.   Appellant is entitled to have that determination made anew.   It is unnecessary to discuss the other issues raised.

The order of recommitment is reversed.


1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Although the superior court minute order reflects that appellant was advised of his right to a 12–person jury and waived that right, the reporter's transcript of the proceedings on that date indicates to the contrary.   The trial court solicited a stipulation for the six-person jury only from counsel.

3.   In People v. Gibson, supra, 204 Cal.App.3d 1425, 1429, 252 Cal.Rptr. 56, this court held that this same statutory scheme violated ex post facto clauses as applied to persons sentenced to a determinate sentence prior to its effective date of July 1, 1986, and violated equal protection because it mandated involuntary confinement and treatment of former prisoners who are mentally ill without proof of dangerousness.   Subsequent amendments to section 2960 et seq. since Gibson do not change our analysis that the statutory scheme is penal in nature and effect.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.

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