People v. Masterson (8 Cal. 4th 965, 1994)

Opinion

ARABIAN, J.

—Over the objection of his client, defense counsel stipulated to use of an 11-person jury in a hearing to determine whether defendant was competent to stand trial for felony charges. We must decide whether counsel was authorized to do so. Because of the nature of competency proceedings and of the right to a jury trial in those proceedings, we conclude that counsel has authority to waive entirely a jury trial over defendant’s objection. This includes within it lesser authority such as that exercised in this case.

Accordingly, we reverse the judgment of the Court of Appeal, which reached a contrary conclusion.

I. Facts

Defendant was charged by complaint with attempted premeditated murder and robbery, both with use of a firearm. The charges arose out of an incident in which defendant shot a security guard in the face while trying to steal merchandise from a drugstore. Prior to the preliminary hearing, the magistrate declared a doubt as to defendant’s present mental competence, and certified the matter to superior court for a competency hearing.

On the morning that presentation of evidence in the competency hearing was to begin, 11 jurors were present. A 12th prospective juror apparently did not appear. As a result, the attorneys stipulated that a jury consisting of the remaining 11 jurors could hear the matter. Defendant was consulted as follows:

“The Court: Mr. Masterson, do you understand what’s happening here ... in terms of the jury? [‘JD What the parties have agreed to is that they’re going to stipulate that this matter can be heard by the 11 jurors.

“The Defendant: I don’t know. I thought you’re supposed to have 10 jurors, or 12 jurors. Excuse me.

“The Court: Normally in criminal matters we do.

“The Defendant: Must be a new law I don’t know about.

“The Court: It’s a civil matter, and your attorney and the D. A. feel that the matter can be judged fairly by the 11 that are in the box right now. [U Do you have any problem with it?

“The Defendant: I’d rather have 12 jurors myself.

“The Court: I understand that. Okay. Also it’s the court’s understanding the parties have agreed that if we lose any jurors that the stipulation will go to whatever is left. For example, if two can’t come back because of illness over the weekend, that would leave nine and they can hear the matter. Is that correct?

[Both counsel expressly agreed.]

“The Court: Mr. Masterson, I assume you don’t agree with that.

“The Defendant: What’s that?

“The Court: That if we lose any jurors that the stipulation will go to the remaining jurors to make a decision in the matter. It has to be unanimous any decision made.

“The Defendant: Yes, I understand that.

“The Court: For the record, do you object to it?

“The Defendant: Yes.”

After a contested trial, the 11 jurors found defendant competent. Later, a different jury convicted him of these and other charges. The same jury then found that he had suffered certain prior convictions, and that he was sane when he committed the offenses. The court sentenced him to prison for a determinate term of 28 years and a consecutive term of life with possibility of parole.

The Court of Appeal reversed, holding that using an 11-person jury at the competency hearing over defendant’s personal objection was prejudicial error. We granted the Attorney General’s petition to review whether “the statutory right to a jury trial in a mental competency hearing pursuant to Penal Code sections 1368 and 1369 [is] subject to waiver over the objection of the defendant.”

II. Discussion

“It is a fundamental canon of criminal law, and a foundation of due process, that ‘A person cannot be tried or adjudged to punishment while such person is mentally incompetent.’ ” (People v. Samuel (1981) 29 Cal.3d 489, 494 [174 Cal.Rptr. 684, 629 P.2d 485] [quoting Pen. Code, § 1367, as it then read, which is substantially as it reads now].) Here, after a magistrate expressed doubt about defendant’s mental competence, a jury trial on the question was held. (See generally, Pen. Code, § 1368 et seq.) Over defendant’s personal objection, but with the stipulation of counsel, the jury consisted of 11 persons rather than the usual 12. (Cal. Const., art. I, § 16; Code Civ. Proc., § 220.) Defendant argues this was error.

This presents the threshold question of whether counsel can waive the right to a jury trial entirely over the objection of defendant. As the Court of Appeal noted, if counsel had that authority, he or she would also have “the right to decide whether the jury may consist of fewer than 12 jurors.” That court held that counsel may not waive a jury over the client’s objection, and that counsel additionally could not agree to a jury of only 11 persons. It expressly disagreed with the opposite conclusion of People v. Harris (1993) 14 Cal.App.4th 984, 990-992 [18 Cal.Rptr.2d 92] (Harris).

“[I]n both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters”; in other words, “counsel is captain of the ship.” (In re Horton (1991) 54 Cal.3d 82, 94, 95 [284 Cal.Rptr. 305, 813 P.2d 1335].) The attorney may not, however, bind the party as to certain fundamental matters. (Id. at p. 95 [criminal cases]; Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109] [civil cases].) For example, in a criminal case, only the defendant personally may waive a jury trial. (People v. Ernst (1994) 8 Cal.4th 441 [34 Cal.Rptr.2d 238, 881 P.2d 298]; In re Horton, supra, 54 Cal.3d at p. 95.) But what applies to a criminal case does not necessarily apply to a competency proceeding. A competency proceeding, although certainly related to the underlying criminal case, is not itself a criminal action. As the Court of Appeal correctly observed, “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].)” (See also Harris, supra, 14 Cal.App.4th at p. 991.)

Although there is a constitutional right to a jury trial in criminal and civil actions (Cal. Const., art. I, § 16), there is no such right in a competency proceeding. There is indeed a right to a jury trial in a competency proceeding, but it is statutory, not constitutional. (Pen. Code, § 1369; People v. Samuel, supra, 29 Cal.3d at p. 505 [“[T]he right to a jury in section 1368 hearings is a creature of statute, rather than a mandate of our Constitution as is the jury right at trial.”]; People v. Hill (1967) 67 Cal.2d 105, 114 [60 Cal.Rptr. 234, 429 P.2d 586] [“The only right to a jury trial in a special proceeding collateral to the criminal trial is that provided by statute.”]; People v. Superior Court (McPeters) (1985) 169 Cal.App.3d 796, 798 [215 Cal.Rptr. 482]; see also 2 ABA Standards for Criminal Justice, std. 7-4.7(c) (2d ed. 1986) p. 7.203, and the commentary thereto, id. at p. 7.207 [recognizing that there is no constitutional right to a jury trial in a competency proceeding].)

Both the Courts of Appeal in this case and in Harris recognized the foregoing principles. (See Harris, supra, 14 Cal.App.4th at p. 991.) But from that point, their respective analyses diverged substantially.

Harris essentially ended its analysis after finding the jury trial right to be statutory; it concluded that because the right was merely statutory, counsel could waive it. (Harris, supra, 14 Cal.App.4th at p. 992.) The Court of Appeal here criticized Harris in this regard, arguing that even a nonconstitutional right might be sufficiently substantial that counsel may not waive it over objection. It examined the law applicable to civil actions, and concluded that in those actions counsel alone may not waive the constitutional right to a jury trial. “Because competency proceedings are in the nature of civil proceedings and must be conducted according to civil rules,” the court continued, “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.” It stated that 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.”

We disagree with the approach of the Court of Appeal. Even if counsel may not waive the constitutional right to a jury trial in civil actions (upon which we express no opinion), the same rule does not necessarily apply to the statutory jury trial right in this special proceeding. Describing the competency hearing as “civil in nature” (People v. Superior Court (McPeters), supra, 169 Cal.App.3d at p. 798), or even saying that it is “ ‘governed by the rules applicable to civil proceedings’ ” (People v. Skeirik (1991) 229 Cal.App.3d 444, 455 [280 Cal.Rptr. 175], quoting 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2989, p. 3667), while often useful and generally accurate, cannot eliminate specific differences between the proceedings, or elevate a statutory right to a constitutional right.

We also need not decide whether, as suggested by the Court of Appeal, there are some statutory rights that counsel may not waive. Rather, we base our conclusion upon an examination of the nature of competency proceedings as well as the jury trial right at issue.

The sole purpose of a competency proceeding is to determine the defendant’s present mental competence, i.e., whether the defendant is able to understand the nature, of the criminal proceedings and to assist counsel in a rational manner. (Pen. Code, § 1367; People v. Mickle (1991) 54 Cal.3d 140, 182, fn. 25 [284 Cal.Rptr. 511, 814 P.2d 290]; People v. Samuel, supra, 29 Cal.3d at p. 496.) Because of this, the defendant necessarily plays a lesser personal role in the proceeding than in a trial of guilt. How can a person whose competence is in doubt make basic decisions regarding the conduct of a proceeding to determine that very question?

This extends to the fundamental decision whether to hold a competency hearing at all. The United States Supreme Court has recognized that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” (Pate v. Robinson (1966) 383 U.S. 375, 384 [15 L.Ed.2d 815, 821, 86 S.Ct. 836].) There is authority that if “ ‘the attorney doubts the present sanity of his client, he may assume his client cannot act in his own best interests and may act even contrary to the express desires of his client ....’” (Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 28 [225 Cal.Rptr. 328], quoting People v. Bolden (1979) 99 Cal.App.3d 375, 379-380 [160 Cal.Rptr. 268]; see also 2 ABA Standards for Criminal Justice, std. 7-4.2(c), supra, p. 7.176 [“If the client objects to such a motion [to evaluate the defendant’s competence to stand trial] being made, counsel may move for evaluation over the client’s objection.”].)

In People v. Hill, supra, 67 Cal.2d 105, the defendant argued that before a court trial on his competence could be held, the court had to advise him about the right to a jury trial. We disagreed, finding “no duty in a judge to advise a defendant of his statutory rights where he is represented by counsel.” {Id. at p. 114.) “Obviously, where the attorney has doubts as to the present sanity of the defendant he should be able to make decisions as to how the proceeding should be conducted. [