The Supreme Court has been relatively harmonious of late, but one point of contention arises in determining whether trial court error is harmless or requires reversal. That fault line appeared clearly in People v. Grimes, a 4-3 death penalty case in which the court granted rehearing in March. And it is apparent again in the two opinions the court issues today, with Justices Kathryn Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar, Leondra Kruger, and, mostly, Carol Corrigan on one side, and Chief Justice Tani Cantil-Sakauye and Justice Ming Chin on the other.
In People v. Blackburn, the court today holds that a trial court must personally advise a mentally disordered offender defendant of his or her right to a jury trial on the issue of extending the defendant’s involuntary commitment, and that the court “must obtain a personal waiver of that right from the defendant”; counsel’s waiver of that right is not enough “unless the court finds substantial evidence — that is, evidence sufficient to raise a reasonable doubt — that the defendant lacks the capacity to make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision.”
The trial court in Blackburn didn’t give the required advice and get the necessary waiver (instead of the defendant himself, the defendant’s counsel waived a jury trial), and all seven justices agree that was error. The disagreement is about the consequences of the error.
The majority opinion, written by Justice Liu and joined by Justices Werdegar, Corrigan, Cuéllar, and Kruger, equates the error with “the denial of a jury trial” and holds that “the error constitutes a miscarriage of justice and automatically requires reversal.” In her separate opinion, Chief Justice Cantil-Sakauye writes for herself and Justice Chin that the state constitution “generally eschew[s] the application of an automatic or reversible per se harmless error standard to state law error” and concludes that an automatic reversal, “where it is highly unlikely that the defendant was unaware of the right to a jury trial or would have requested a jury trial over his or her counsel’s contrary advice, fails to respect the history and purpose of California’s distinct constitutional harmless error provision.” She says that the majority “does not realistically come to grips with the difference between the limited errors that occurred in this case and a complete deprivation of the right to jury trial that would arise when a defendant who expresses a wish to be tried by a jury is denied that right.”
In People v. Tran, the same 5-2 majority, in an opinion again authored by Justice Liu, reaches the same conclusion as in Blackburn, this time regarding jury trials in proceedings to extend involuntary commitments of those pleading not guilty by reason of insanity to a criminal offense. The Chief Justice again concurs and dissents, for the same reasons as in her separate opinion in Blackburn. She says “[t]here is simply no reasonable basis for finding the court’s failure to personally advise Tran of his right to a jury trial and to elicit an on-the-record waiver of that right affected the outcome in this case.”
So, why do we say that Justice Corrigan “mostly” sides with the majority on the harmless error issue? Because, although she signs the court’s opinion, she does not join a separate concurring opinion in Blackburn that Justice Liu writes for himself and Justices Werdegar, Cuéllar, and Kruger. (Concurring opinions signed by a majority of the court are a bit odd, but it happens.) The concurring opinion responds directly to the Chief Justice’s separate opinions in Blackburn and Tran, discussing in detail the history of the state constitutional provision — article VI, section 13 — that requires a miscarriage of justice before there can be a reversal. The concurrence says that the Blackburn and Tran decisions “follow from the text, history, and purpose of section 13 as well as this court’s consistent and longstanding interpretation of that provision.”
In both Blackburn and Tran, the court reverses the Sixth District Court of Appeal. Together, the two decisions disapprove a 1999 opinion and a 2004 opinion by the Court of Appeal, Second District, Division Six, a 2001 opinion and a 2002 opinion by the Court of Appeal, Fourth District, Division Two, a 2007 opinion by the Fifth District Court of Appeal, and a 2011 opinion by the Court of Appeal, Fourth District, Division Three.
Blackburn and Tran will not be the last word from the court on harmless error. People v. Grimes should be re-argued soon.