Blackburn

I. INTRODUCTION

Under the Mentally Disordered Offender Act (the Act) (Pen. Code, § 2960 et seq.), the state can commit a mentally disordered offender (MDO) to a hospital for treatment for a specified period of time as a condition of parole, and it can extend the commitment if at the end of the period the MDO poses a danger to others due to his or her mental disorder. Under the Act, the MDO has the right to a jury trial. The Act requires that the court “advise the [MDO] . . . of the right to a jury trial” and conduct a jury trial “unless waived by the person and the district attorney.” (Pen. Code, §§ 2966, subd. (b); 2972, subd. (a).)1 Defendant claims that an MDO has the right to decide whether to waive the right to a jury trial, and that the waiver provision requires a jury trial unless the MDO personally waives it. The Attorney General claims that counsel has exclusive control over whether to waive a jury trial and can do so even over the MDO‟s objection.

1 All unspecified statutory references are to the Penal Code. We hold that the waiver provision does not require a personal waiver or give counsel exclusive control. Rather, counsel may waive a jury at the MDO‟s direction or…