Filed 6/5/13 P. v. Simmons CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037403
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. E9909752)

             v.

MARK STEVEN SIMMONS,

         Defendant and Appellant.


                                         I. STATEMENT OF THE CASE
         Defendant Mark Steven Simmons appeals from an order extending his involuntary
commitment as a mentally disordered offender (MDO). (Pen. Code, §§ 2970, 2972.)1 He
claims the court erred in failing to advise him of his right to a jury trial, failing to obtain
his personal waiver, accepting counsel’s jury waiver, and conducting a bench trial.
         We affirm the extension order.




         1
             All unspecified statutory references are to the Penal Code.
                    II. BACKGROUND AND PROCEDURAL HISTORY2
       In 1999, defendant was boarding at a house where D., a 14-year old girl, lived
with her mother. One day, as D. was lying in her bed watching television, defendant
came in and lay down under the covers next to her. He was naked except for a bathrobe.
Holding her shoulders, he pressed himself against her back until she felt his penis. On
four or five other occasions, defendant entered D.’s bedroom and did the same thing. On
another occasion, D. was sleeping in her mother’s bed and awakened to find defendant
next to her, touching her legs and thighs and between her legs. D. pretended to be asleep.
After five to 10 minutes, defendant got into the bed and continued to touch her for
another half hour or more. She tried to push him off. He eventually stopped and then
began talking as if nothing had happened. Defendant stopped molesting D. after D. told
her aunt, her aunt told her mother, and they called the police.
       In March 1999, defendant pleaded no contest to two counts of lewd and lascivious
acts on a 14-year-old girl more than 10 years younger than he was. (§ 288, subd. (c)(1).)
He was 39 at the time. In May 1999, he was granted probation on condition he have no
contact with D. In November 1999, probation was revoked because defendant had
violated that condition. In December 1999, defendant admitted the violation and was
committed to prison for two years and eight months.
       In November 2000, defendant was transferred from Folsom State Prison to
Atascadero State Hospital (ASH) for treatment of a mentally disordered offender. In
August 2001, defendant was released from ASH to a conditional release program
(CONREP) for outpatient treatment. Within a short time, however, defendant was re-
       2
         In his opening brief, defendant relies on the factual and procedural summary in a
prior unpublished opinion of this court. We take judicial notice of our three prior
unpublished decisions concerning defendant: People v. Simmons (Aug. 25, 2004,
H026672) [nonpub. opn.]; People v. Simmons (April 26, 2006, H028499) [nonpub. opn.];
People v. Simmons (Jan. 31, 2008, H031491) [nonpub. opn.].) (Evid. Code, § 452,
subd. (d).) We too base our background and procedural summary on these decisions and
the record in this case.

                                             2
hospitalized at Napa State Hospital (NSH) for disobeying CONREP rules and expressing
suicidal ideations. In September, he was transferred back to ASH.
       In August 2003, the Santa Clara County District Attorney filed a petition to extend
defendant’s involuntary commitment to ASH beyond the expiration of his parole term
based on allegations that defendant posed a danger to others due to a mental condition
that was not in remission. (§§ 2962, 2970, 2972.) After a jury trial, the court sustained
the petition and extended defendant’s commitment from November 2003 to November
2004. On appeal, however, this court reversed the order due to the insufficiency of
evidence that defendant’s underlying crimes qualified defendant for continued
involuntary treatment as an MDO. (People v. Simmons, supra, H026672.)3 On remand
after a bench trial, the court found that the crimes qualified defendant for continued
treatment and reinstated its previous commitment order. On appeal, this court affirmed
the order. (People v. Simmons, supra, H028499.)
       In May 2005 and August of 2006, the People filed petitions to extended
defendant’s commitment. The two petitions were consolidated, and after a jury trial, the
court ordered his commitment extended until November 2007. On appeal, we affirmed
that order. (People v. Simmons, supra, H031491.)
       Apparently, defendant’s commitment was extended a number of times after that.
Before the last extension expired in November 2011, the district attorney sought another
extension until November 2012. On July 29, 2011, defense counsel waived a jury trial.
On September 22, 2011, after a bench trial, the court sustained the petition and extended
defendant’s commitment.



       3
         The trial was bifurcated. Under the parties’ stipulation, the court decided
whether defendant’s offenses qualified him for continued involuntary treatment as an
MDO; and the jury decided whether defendant was currently dangerous due to a mental
condition not in remission. In reversing the order and remanding for a retrial, this court
released defendant from his stipulation. Apparently, defendant renewed the stipulation.

                                             3
                               III. THE EXTENSION TRIAL
       Fouad Saddik, M.D., a staff psychiatrist at NSH, testified as an expert in the
diagnosis and treatment of mental disorders and risk assessment. He had been
defendant’s treating psychiatrist since June 2010. Dr. Saddik opined that defendant
suffered from pedophilia. He based this diagnosis on his treatment and evaluation of
defendant, defendant’s underlying offense, and a previous forensic psychological
evaluation prepared by a “Dr. Geca” at NSH who summarized three sexual incidents
involving three different girls.4 Dr. Saddik testified that defendant’s pedophilia caused
him to have serious difficulty controlling his behavior. He believed that if defendant
were free in the community without any supervision, he would he would pose a danger of
physical harm to others because it is possible he would reoffend.
       Dr. Saddik also found that defendant suffered from major depression and alcohol
dependence. Although defendant’s depression waxed and waned, it and his alcohol
dependence were currently in remission even without medication.
       Dr. Saddik noted that defendant denied the diagnosis of pedophilia. He opined
that defendant lacked sexual regulation and self-regulation and was not sufficiently aware
of the triggers and signs that would help him identify his inappropriate sexual impulses
and not act on them. Improving his ability to do so was the primary focus of defendant’s


       4
          On cross-examination, Dr. Saddik acknowledged that the criteria for pedophilia
in the standard diagnostic manual includes sexual conduct with a person 13 years old or
younger. However, he explained that the age criteria is not a hard and fast limitation on
the diagnosis of pedophilia and other factors can render such a diagnosis appropriate even
when the victim is older than 13.
        Also on cross-examination, Dr. Saddik testified that it was his understanding that
Dr. Geca’s evaluation was a compilation of information gleaned from other reports and
statements defendant had made to others. Dr. Saddik admitted that he did not personally
read any documentation concerning the three previous incidents summarized in Dr.
Geca’s evaluation; nor did he consult with Dr. Geca about the contents of his evaluation.
Dr. Saddik said that if the other three incidents never occurred, he would not rule out a
diagnosis of pedophilia, but he would have some question about it.

                                             4
relapse prevention plan. Dr. Saddik considered it important that defendant attend and
complete a sex offender group at NSH. Dr. Saddik noted that defendant had been willing
to do so, but a system lock-down at NSH had prevented his participation.
       Dr. Saddik commended defendant for having started on a relapse prevention plan
but found that at present it was not complete because it did not address his depression and
substance abuse. Defendant also needed to complete a wellness and recovery plan for all
three of his diagnoses. If and when defendant accomplished these tasks, he could be
released to CONREP on outpatient status.
       Dr. Saddik opined that because defendant’s underlying offense occurred when he
was depressed, it was important for him to develop plans to identify the warning signs of
depression, decompensation, and even suicidal thoughts. Dr. Saddik noted, however, that
in the past, defendant had stopped his medication but sought to take it again because his
depression had returned. This was a sign that defendant recognized his depression. On
the other hand, it revealed that defendant’s depression was recurrent, and something that
would require continuous monitoring.
       Dr. Saddik could not say that defendant’s pedophilia was in remission because the
environment at NSH contained him and eliminated the contraband that might stimulate
him. He also noted that defendant had a history of developing romantic obsessions. He
noted that defendant had left inappropriate messages for a rehabilitation technician.
Defendant also talked about an obsession with a female disc jockey named Lisa Fox, who
had obtained a restraining order against him. Despite it, he sent her a letter, which NSH
intercepted. Dr. Saddik explained that these romantic obsessions were cause for concern
because they revealed “vague boundaries with females” and could possibly increase the
danger from his pedophilia if he became obsessed with a very young girl.
       On the positive side, Dr. Saddik noted no reports of behavioral problems,
aggressive or assaultive conduct, or sexually inappropriate behavior. Moreover,



                                             5
defendant was “programming,” enrolled in college classes, regularly attending church
singing in a choir, and had recently applied to be a Universal Life Church minister.
       Defendant testified and rejected the diagnosis of pedophilia. He also said he did
not know anyone named Dr. Geca and denied that any of the incidents summarized in
that doctor’s report had ever occurred.
       Concerning the commitment offense, defendant said that he knew D. was only 14.
However, he said she was not a little girl. He explained that he had been working at a
modeling agency and wanted to use her as a model. He described her as a gorgeous,
physically developed—“a 34C”—high school cheerleader with long blonde hair that
came down to her waist. He treated her like a girlfriend, not a little girl, and loved her.
They kissed and snuggled, and he fondled her. He conceded that his conduct might have
harmed her a “little bit.” However, he felt his conduct had a positive effect in that it
broke her habit of flirting with older men online.
       Defendant denied that if released he would seek to have a relationship with a
child. Defendant said that even in the hospital, contraband alcohol was available.
However, he attended NA and AA meetings and had been sober for 21 years. He said
that he worked at the hospital and had been cleared to work with dangerous equipment.
       Defendant admitted violating probation by having contact with D. He also
admitted trying to send a letter to the disc jockey in violation of the restraining order. In
that regard, he believed that the hospital staff had pulled one of their “dirty tricks” on him
to maintain the income they got from taking care of him. He also felt that to save her job,
Lisa Fox had cooperated with other people, who were the ones who wanted the
restraining order. He believed that Ms. Fox was scared of him, but he said he still wanted
to meet her in person and compare notes without her bosses listening.
       Defendant said that if unconditionally released, he would continue his AA
meetings. He said he would start to develop his ministry in the Universal Life Church.



                                              6
He would also pursue a career as a radio announcer and recording artist, noting that his
major in college was broadcasting.
                                       IV. MOOTNESS
       The extension period of defendant’s commitment has expired, and therefore the
propriety of the court’s order is now moot. Thus, it may not appear necessary to address
defendant’s claims of error concerning the jury advisement, lack of personal waiver, and
bench trial. However, “we review the merits of appeals from timely filed petitions that
are rendered technically moot during the pending of the appeal, . . . because the appellant
is subject to recertification as an MDO, and the issues are otherwise likely to evade
review due to the time constraints of MDO commitments. [Citations.]” (People v.
Merfield (2007) 147 Cal.App.4th 1071, 1074.)
         V. THE MDO COMMITMENT SCHEME AND EXTENSION PROCEDURE
       When persons who have been convicted of a violent crime related to their mental
disorders are eligible for release but currently pose a danger of harm to others, the
Mentally Disordered Offender Act (the Act) (§ 2960 et seq.) permits their involuntary
commitment to a state hospital for treatment until their disorders can be kept in
remission. (In re Qawi (2004) 32 Cal.4th 1, 9 (Qawi); see Lopez v. Superior Court
(2010) 50 Cal.4th 1055, 1061 (Lopez) [the MDO Act has the dual purpose of protecting
the public while treating severely mentally ill offenders].)
       The Act provides treatment at three stages of commitment: as a condition of
parole, in conjunction with the extension of parole, and following release from parole.
(Lopez, supra, 50 Cal.4th at p. 1061.) “Sections 2970 and 2972 govern the third and final
commitment phase, once parole is terminated. If continued treatment is sought, the
district attorney must file a petition in the superior court alleging that the individual
suffers from a severe mental disorder that is not in remission, and that he or she poses a
substantial risk of harm. (§ 2970.)” (Lopez, supra, 50 Cal.4th at p. 1063.)



                                               7
       Section 2972, subdivision (a) provides, among other things, that when a petition is
filed, the court “shall advise the person . . . of the right to a jury trial”; and “the trial shall
be by jury unless waived by both the person and the district attorney.”5 (§ 2972.) To
obtain an extension, the district attorney must prove, and the trier of fact must find
beyond a reasonable doubt, that (1) the person continues to have a severe mental
disorder; (2) the person’s mental disorder is not in remission or cannot be kept in
remission without treatment; and (3) the person continues to represent a substantial
danger of physical harm to others. (Lopez, supra, 50 Cal.4th at p. 1063; People v. Beeson
(2002) 99 Cal.App.4th 1393, 1398-1399; § 2972, subds. (c), (e).)
                                      VI. CONTENTIONS
       Defendant contends that if an MDO is competent, then under the Act, the court
must conduct a jury trial unless the MDO personally and expressly waives a jury. Thus,
he claims that the court erred in failing to give the required advisement and conducting a
bench trial without obtaining his personal waiver. He argues the errors violated his right
to a jury trial under the Act and under the state and federal due process and equal
protection clauses.
       Citing People v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya
(2001) 86 Cal.App.4th 825, 829 (Montoya) as well as People v. Masterson (1994) 8



       5
           Section 2972, subdivision (a) provides, “(a) The court shall conduct a hearing on
the petition under Section 2970 for continued treatment. The court shall advise the
person of his or her right to be represented by an attorney and of the right to a jury trial.
The attorney for the person shall be given a copy of the petition, and any supporting
documents. 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. The trial shall commence no later
than 30 calendar days prior to the time the person would otherwise have been released,
unless the time is waived by the person or unless good cause is shown.”

                                                 8
Cal.4th 965, 974 (Masterson), the Attorney General argues that the Act does not require a
personal waiver and in fact gives counsel exclusive control over the jury decision.
                                      VII. DISCUSSION
       Recently, in People v. Blackburn (2013) 215 Cal.App.4th 809 [156 Cal.Rptr.3d
106, 112-115] (Blackburn), we addressed identical claims.
       First, we rejected the defendant’s claim that the Act required an MDO’s personal
waiver. We noted that the claim previously had been rejected in Otis, supra, 70
Cal.App.4th 1174 and Montoya, supra, 86 Cal.App.4th 825, 829. In doing so, those
courts noted that the statutory language did not expressly require a personal waiver; nor
did it clearly preclude a waiver by counsel. The courts also declined to infer such a
requirement because some MDOs may not be sufficiently competent to determine
whether a bench or jury trial is in their best interests. Under those circumstances, the
incompetent MDO must act through counsel, and counsel must have authority to waive a
jury trial, even over the MDO’s objection. (Otis, supra, 70 Cal.App.4th at p. 1177;
Montoya, supra, 86 Cal.App.4th 830-831; cf. People v. Powell (2004) 114 Cal.App.4th
1153, 1157-1159 (Powell) [relying on Otis to reject a claim that similar language in
section 1026.5 required personal jury waiver].)
       In Blackburn, we agreed with Otis and Montoya. (Blackburn, supra, 215
Cal.App.4th at pp. ___ [156 Cal.Rptr.3d at p. 113].) We further opined that interpreting
the statutory language to require a personal waiver resulted in consequences that were
illogical and anomalous. (Ibid.) We noted that for a variety of reasons, MDOs often do
not appear in court until the day of trial. We considered it was illogical to prohibit
counsel from waiving the statutory right to a jury trial at the MDO’s direction or with the
MDO’s express consent and instead require the court to order the MDO’s presence at
some pretrial hearing just to secure a personal waiver because in general counsel can
waive a client’s more fundamental constitutional right to a jury trial in civil actions. (Id.
at p. 114; see Cal. Const., art. I, § 16 [right to jury trial]; Code of Civ. Proc, § 631

                                               9
[prescribing types of waiver]; Zurich General Acc. & Liability Ins. Co. v. Kinsler (1938)
12 Cal.2d 98, 105 (Zurich) [waiver by party or counsel], overruled on other grounds in
Fracasse v. Brent (1972) 6 Cal.3d 784, 792; Cadle Co. v. World Wide Hospitality
Furniture, Inc. (2006) 144 Cal.App.4th 504, 510; Conservatorship of Maldonado (1985)
173 Cal.App.3d 144, 148; see Code Civ. Proc., § 283, subd. (1) [counsel has authority to
bind client in any of the steps of an action].)
       We further observed that some MDO may be so delusional or otherwise affected
by their mental disorders that they lack the capacity to know what is in their own best
interests and make a rational decision. Under such circumstances, an MDO may not be
able to knowingly and intelligently waive the right to a jury trial. We opined that “[i]f an
MDO is incompetent, and in a particular case counsel believes that a jury waiver is in the
MDO’s best interests, requiring that MDO’s personal waiver would undermine counsel’s
ability to protect the MDO’s interests . . . and mechanically require the court to conduct a
jury trial or give the incompetent defendant veto power over counsel’s informed
determination.” (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 114].)
       In short, we found that “preventing counsel from waiving a jury at the NGI
defendant’s direction or with the MDO’s consent and preventing counsel from doing so
on behalf of an incompetent MDO are anomalous consequences that would flow from
interpreting the waiver provision literally and restrictively to require a personal waiver.”
(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 114]) For that
reason, we considered it unreasonable to infer such a restrictive and exclusive legislative
intent from the statutory language. (Ibid.)
       After rejecting the defendant’s claim of a personal waiver requirement, we
rejected the Attorney General’s claim that the Act gave counsel exclusive control. We
noted that the Act did not expressly confer exclusive control. Moreover, we pointed out
that when read together, the requirements that the court advise the MDO of the right to a

                                              10
jury and conduct jury trial unless waived by “the person” not only imply that MDOs can
comprehend the advisement but also contemplate that an MDO can control the jury
decision. (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 115].)
Indeed, we opined that interpreting the Act to give counsel exclusive control would
defeat the purpose of the required jury advisement and render that provision meaningless
surplusage. (Id. at p. 116.)
       We further explained that the Attorney General’s reliance on Masterson, supra, 8
Cal.4th 965, Otis, supra, 70 Cal.App.4th 1174, and Montoya, supra, 86 Cal.App.4th 825
was misplaced.
       We acknowledged that in Masterson, the California Supreme Court recognized
counsel’s exclusive control over the jury issue in proceedings to determine the
competency of a criminal defendant to stand trial. (Masterson, supra, 8 Cal.4th at
pp. 971, 973.) The court’s finding rested on both the specific nature of the competency
proceeding, in which the allegedly incompetent defendant plays a lesser role; and on the
assumption that a defendant whose competency is in doubt is unable to act in his or her
own best interests and must therefore act through counsel. (Id. at p. 971.)
       We noted that more recently the court in People v. Barrett (2012) 54 Cal.4th 1081
(Barrett) similarly recognized counsel exclusive control in proceedings under Welfare
and Institutions Code § 6500 to involuntarily commit developmentally or intellectually
disabled persons who pose a danger to others. (Id. at pp. 1104-1105.) There too
counsel’s exclusive authority derived from the nature of the proceedings. The court
explained that the statute applies to persons who have significant cognitive and
intellectual deficits that never recede and affect the ability to make basic decisions about
the conduct of the proceedings. In other words, it may be assumed that such disabled
persons are unable to act in their own best interests and must act through counsel. (Id. at
pp. 1103-1104.)



                                             11
       As we explained in Blackburn, Masterson and Barrett establish that in certain
types of commitment proceedings, the defendant’s alleged mental state—e.g.,
incompetency and developmental or intellectual disability—renders the defendant unable
to make reasoned decisions concerning whether to have a jury trial. In other words, it is
reasonable to categorically assume that such defendants lack the capacity to make a
rational choice. “For that reason, they must act through counsel, and counsel has
exclusive control over the jury issue.” (Blackburn, supra, 215 Cal.App.4th at p. ___ [156
Cal.Rptr.3d at p. 119] .)
       We concluded, however, that it was not reasonable to similarly assume that all
MDOs lack the capacity to make rational decisions about whether to have a jury trial. In
this regard, we relied on Barrett, where the Supreme Court made that precise point.
There, the court distinguished persons who have developmental and intellectual
disabilities from persons who suffer from a mental disorder, disease, or defect concerning
their capacity to function in a competent manner and, more specifically, to comprehend
and control the jury decision. (Barrett, supra, 54 Cal.4th at pp. 1108-1109.) The court
concluded that unlike all persons with developmental and intellectual disabilities, many
mentally ill persons retain the capacity to function in a competent manner, and therefore,
their illness does not necessarily imply incompetence or a reduced ability to understand
and make decisions about the conduct of the proceedings against them, such as
comprehending an advisement and controlling the decision to request or waive a jury
trial. (Ibid.)
       Concerning Otis and Montoya, both of which involved MDO proceedings, we
found them to be consistent with—indeed that they mirrored—the Masterson-Barrett
rationale for recognizing counsel’s exclusive control over the jury issue.6


       6
         Otis dealt with section 2966, subdivision (b) and Montoya, as here, dealt with
section 2972, subdivision (a), but both sections require the court to advise the MDO of

                                            12
       In Otis, counsel waived a jury trial. The defendant objected and requested a jury
trial, but at the time, he was delusional and said he was being sexually assaulted by
invisible police. The trial court denied the request. On appeal the court upheld counsel’s
waiver. (Otis, supra, 70 Cal.App.4th at pp. 1175-1176.) In doing so, the court explained
that “[s]ection 2966 concerns persons who have been found by the Board of Prison Terms
to be mentally disordered. The Legislature must have contemplated that many persons,
such as Otis, might not be sufficiently competent to determine their own best interests.
There is no reason to believe the Legislature intended to leave the decision on whether
trial should be before the court or a jury in the hands of such a person.” (Otis, supra, 70
Cal.App.4th at pp. 1176-1177.)
       In Montoya, supra, 86 Cal.App.4th 825, counsel waived a jury. Although the
defendant did not object, he claimed on appeal that his personal waiver was required. (Id.
at pp. 828-829.) In concluding otherwise, the court opined that the Legislature could not
have intended to require a personal waiver and thereby deny counsel the authority to act
on behalf of an incompetent MDO. (Id. at pp. 830-831.) In this regard, the court noted
that the defendant’s mind was not functioning normally, and he had repeatedly and
recently demonstrated poor judgment and aberrant behavior. Given the record, the court
found “no reason to believe that defendant was capable of making a reasoned decision
about the relative benefits of a civil jury trial compared to a civil bench trial.” (Montoya,
supra, 86 Cal.App.4th at p. 831.)
       In Blackburn, we understood Otis and Montoya in light of the specific facts and
issues in those cases. (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 122]; see Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“[l]anguage used in any
opinion is of course to be understood in the light of the facts and the issue then before the
court”].) Given the similar mental state of the defendants in both, we read both cases “for

the right to a jury trial and conduct a jury trial “unless waived by the person and the
district attorney.”

                                             13
the proposition that when an MDO appears to be incapable of determining whether a
bench or jury trial is in his or her best interests, the MDO must act through counsel, and
counsel has exclusive authority to decide even over the MDO’s objection.” (Blackburn,
supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 122].) Conversely, “[n]either
case . . . should be read more broadly to hold that counsel controls the jury issue
regardless of whether the MDO is competent to understand the advisement and make a
reasoned decision. This is especially so because neither case addressed the purpose and
function of the mandatory jury advisement.” (Ibid.)
       In sum, we concluded in Blackburn that the Act did not require an MDO’s
personal waiver or give counsel exclusive control over the jury decision. Rather, we held
that counsel may waive a jury at the MDO’s direction or with the MDO’s consent; and
when there is cause to doubt the MDO’s competence to determine whether a bench or
jury trial is in his or her best interests, counsel can make the decision even over the
MDO’s objection. (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
pp. 123-124].)
       Finally, in Blackburn, we observed that the propriety of the bench trial turned on
the validity of counsel’s waiver, which, in turn, hinged on whether the defendant knew he
had the right to a jury trial and directed or knowingly consented to counsel’s waiver.
(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 124].) The same is
true in this case.
       As defendant correctly notes, the record does not reflect that the court gave the
required advisement. This is understandable. The record also reveals that after being
appointed, counsel waived defendant’s presence at every hearing until the bench trial.
However, it is beyond dispute that counsel was aware of defendant’s right to a jury trial.
And where, as here, counsel waives an MDO’s presence at pretrial hearings, effectively
preventing a direct judicial advisement before trial, the court may reasonably expect
counsel to discuss all pertinent matters that will arise or that have arisen in pretrial

                                              14
hearings, including the right to a jury trial and whether to have one. Indeed, “[l]ike all
lawyers, the court-appointed attorney is obligated to keep her client fully informed about
the proceedings at hand, to advise the client of his rights, and to vigorously advocate on
his behalf. [Citations.] The attorney must also refrain from any act or representation that
misleads the court. (Bus. & Prof.Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5–
200(B).)” (In re Conservatorship of John L. (2010) 48 Cal.4th 131, 151-152, italics
added.) Moreover, absent a showing to the contrary, “[a] reviewing court will indulge in
a presumption that counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211; Conservatorship
of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship of Mary K. (1991) 234
Cal.App.3d 265, 272 [where no evidence to the contrary, court may presume counsel
discussed jury waiver with client before waiving on client’s behalf].)
       Under the circumstances, and in the absence of evidence to the contrary, we may
presume that counsel discussed the jury issue with defendant. Moreover, the record does
not suggest that defendant was unaware of his right to a jury trial. As noted, his
commitment had been extended numerous times, and he actually had a jury trial on a
previous extension.
       The record also does not suggest that defendant was unaware that counsel intended
to waive a jury and had done so or that counsel acted without defendant’s knowledge or
consent or that defendant wanted a jury trial and objected (or would have objected) to
counsel’s waiver. Any such inferences would be pure speculation on our part.7


       7
         If, in fact, defendant was unaware of his right to a jury trial and would have
opposed or did oppose counsel’s waiver, but the evidence to establish these facts lay
outside the record on appeal, defendant had the alternative a remedy of habeas corpus to
challenge his commitment on the ground of ineffective assistance of counsel. (See
People v. Gray (2005) 37 Cal.4th 168, 211 [claims grounded in facts outside the record
can be raised by habeas petition]; In re Bower (1985) 38 Cal.3d 865, 872.)

                                             15
       It is settled that on appeal, the appellant bears the burden to affirmatively establish
error and then demonstrate that it resulted in a miscarriage of justice that requires
reversal. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Freeman v. Sullivant
(2011) 192 Cal.App.4th 523, 528; Paterno v. State of California (1999) 74 Cal.App.4th
68, 105-106; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; see 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 355, p. 409 [presumption of correctness; “error must
be affirmatively shown”].)
       In short, given the record before us, defendant cannot satisfy his burden to
establish that he was unaware of the right to a jury trial before counsel waived a jury or
that counsel’s waiver was invalid.
       Furthermore, before any judgment can be reversed for error under state law, it
must appear that the error complained of “has resulted in a miscarriage of justice.” (Cal.
Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means
that reversal is justified “when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
       With this in mind, we conclude that even if defendant could show that he was
unaware of the right to a jury trial and that counsel acted without his knowledge and
consent or over his objection, he could not establish prejudice. It is settled that the
erroneous denial of a statutory right to a jury trial is subject to harmless-error review
under the Watson test which, in this context, asks whether it is reasonably probable the
result would have been more favorable had there been a jury trial. (People v. Epps
(2001) 25 Cal.4th 19, 29.)
       As noted, Dr. Saddik opined that the diagnosis of pedophilia made it difficult for
defendant to self-regulate his sexual impulses. He noted that defendant had acted on his
obsessions, had had trouble maintaining appropriate boundaries with women, and had

                                              16
violated probation conditions and restraining orders concerning his victim and a radio
host. He further noted that defendant lacked a sufficient awareness of the triggers and
signs of inappropriate impulses to be able to prevent acting on those impulses. In this
regard, he pointed out that defendant had not completed relapse prevention or wellness
and recovery plans.
       Defendant, on the other hand, rejected the diagnosis of pedophilia. He denied
ongoing interest in having a relationship with young girls, and he denied misconduct with
girls other than the victim of his commitment offense. Moreover, he thought of her more
as a woman than a young girl. Defendant admitted violating probation and the
restraining order. He also admitted wanting to meet the woman radio host to talk about
what had happened. Defendant sought unconditional release so he could pursue a
ministry and a radio career and continue with AA.
       Dr. Saddik’s testimony constitutes strong evidence to support the commitment
extension order. It is true that his diagnosis of pedophilia was based in part on Dr.
Geca’s forensic evaluation, that evaluation summarized other incidents, defendant denied
those incidents, and Dr. Saddik said he would question his diagnosis if those incidents did
not in fact occur. However, these circumstances merely affect the weight to be given Dr.
Saddik’s overall opinion and conclusion. Moreover, it was entirely reasonable for Dr.
Saddik to consider Dr. Geca’s evaluation in treating defendant and forming his opinion,
and Dr. Saddik did not rule out a diagnosis of pedophilia even if the other incidents did
not occur. Furthermore, defendant’s comments about his victim, his view of the impact
his offense had on her, his violation of the probation condition and restraining order, his
desire for unconditional release despite his failure on outpatient status were
circumstances that a jury would have to consider in determining his credibility and his
denial of the other incidents of misconduct and of his diagnosis of pedophilia.
       With these considerations in mind, and assuming that defendant was unaware of
his right to a jury trial, we do not find it reasonably probable that defendant would have

                                             17
obtained a more favorable verdict had the court given the required advisement and
conducted a jury trial. (People v. Watson, supra, 46 Cal.2d at p. 836; e.g., People v.
Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [denial of statutory right to MDO trial
harmless].)
       As noted defendant contends that the failure to advise and conduct a jury trial
denied his right to a jury trial under the state and federal due process and equal protection
clauses.
                                        A. Due Process
       Defendant asserts that if the Act did not provide the right to a jury trial, he would
still have the right under the state and federal constitutional guarantees of due process.
He argues that the court’s procedure in this case violated this constitutional right.
However, since there is a statutory right, defendant’s due process claim is based upon an
assumption which is contrary to the state of existing law. We will not decide theoretical
constitutional questions which are based upon faulty premises. (People v. Moore (2011)
51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty premise];
People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim challenging state’s
actions rejected where argument based upon faulty premise that defendant committed no
unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 228 [court will not
decide “hypothetical or other questions of constitutional law unnecessary to our
disposition of the case”].)
       Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825, the court rejected
the MDO’s claim that the federal due process clause guaranteed an MDO the right to a
jury trial. “ ‘Where . . . a State has provided for the imposition of criminal punishment in
the discretion of the trial jury, it is not correct to say that the defendant’s interest in the
exercise of that discretion is merely a matter of state procedural law. The defendant in
such a case has a substantial and legitimate expectation that he will be deprived of his
liberty only to the extent determined by the jury in the exercise of its statutory discretion,

                                               18
[citation], and that liberty interest is one that the Fourteenth Amendment preserves
against arbitrary deprivation by the State.’ [Citation.] A jury sitting in a civil hearing
pursuant to sections 2970 and 2972 does not impose criminal punishment and has no
power to determine the extent to which the defendant will be deprived of his liberty.
Defendant’s jury trial interest thus is, in this case, ‘merely a matter of state procedural
law’ and does not implicate the Fourteenth Amendment. [Citation].” (Id. at pp. 831-832,
quoting Hicks v. Oklahoma (1980) 447 U.S. 343, 346 (Hicks); cf. Powell, supra, 114
Cal.App.4th at p. 1159 [rejecting NGI’s claim that denial of jury trial violated
constitutional right to due process].)
         Defendant cites In re Gary W. (1971) 5 Cal.3d 297, People v. Feagley (1975) 14
Cal.3d 338, People v. Thomas (1977) 19 Cal.3d 630, and In re Hop (1981) 29 Cal.3d 82
for the proposition that due process guarantees the right to a jury trial in commitment
cases.
         In these cases, the court found that persons facing involuntary commitment under
statutory schemes that did not provide for a jury trial were similarly situated to persons
facing commitment under schemes that provided a jury trial upon request. Thus, under
the equal protection clause, the former group is entitled to a request a jury trial unless
there is a valid justification for not allowing them to do so. And if there is no such valid
justification, the unequal treatment is arbitrary and violates due process. However, none
of these cases separately analyzed whether, apart from arbitrarily treating similarly
situated persons differently, the due process clause independently guarantees persons
subject to civil commitment the right to a jury trial. Accordingly, we find defendant’s
reliance on them misplaced.
         Moreover, although the arbitrary denial of a statutory right may violate the
constitutional guarantee of due process, the record here does not establish that the court’s
failure to advise defendant and failure to conduct a jury trial were arbitrary. Counsel
waived defendant’s presence at every hearing before trial, and he also waived a jury trial.

                                              19
Again, we do not presume error, and, as noted, because defendant has not shown that
counsel’s waiver was unauthorized or otherwise invalid, he can no more show a
constitutional violation than he could show a statutory violation. Accordingly, we reject
defendant’s due process claim.
                                    B. Equal Protection
       Defendant asserts that in every scheme permitting the involuntary commitment of
a person for mental health purposes, there is a right to a jury trial. He further asserts that
an MDO defendant facing an extended commitment is similarly situated to persons facing
a commitment under these other schemes. Thus, he claims that in conducting a bench
trial here, the court denied him equal protection. Defendant’s claim fails because the Act
provides defendant with the right to a jury trial, and counsel waived that right. Thus,
defendant fails to identify how he was treated differently from how he would have been
treated under any of the other commitment schemes.
                                    VIII. DISPOSITION
       The order extending defendant’s commitment is affirmed.



                                            ______________________________________
                                                       RUSHING, P.J.



I CONCUR:




____________________________________
           PREMO, J.




                                              20
ELIA, J., Concurring:
       I respectfully concur in the judgment on the ground that no reversible error has
been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
We must presume for purposes of this appeal that appellant's counsel informed appellant
that he was entitled to be tried by a jury and counsel waived a jury trial in accordance
with appellant's informed consent (see maj. opn., ante, pp. 3-4). (See Denham v.
Superior Court (1970) 2 Cal.3d 557, 564 [all presumptions are indulged to support a
lower court judgment or order regarding matters as to which the record is silent; error
must be affirmatively shown]; see also Conservatorship of John L. (2010) 48 Cal.4th 131,
148 ["When a statutory right in a civil commitment scheme is at issue, the proposed
conservatee may waive the right through counsel if no statutory prohibition exists.
[Citations.]"], 151-152 [attorney is obligated to keep client fully informed of proceedings,
to advise client of his rights, and to refrain from any act or representation that misleads
the court].)
       Even assuming arguendo that appellant had a constitutional right to a jury trial as a
matter of due process, the same presumption applies on appeal. (See Denham v. Superior
Court, supra, 2 Cal.3d at p. 564; Conservatorship of John L., supra, 48 Cal.4th at pp.
151-152.) To the extent appellant is arguing that he had concomitant due process rights,
under either the United States or California Constitution, to a judicial advisement of his
right to a jury trial and to personally and expressly waive a jury on the record, his
arguments are unpersuasive since he was represented by counsel who presumably
advised and consulted with him and there is no constitutional provision explicitly
requiring an express, personal waiver of a jury in noncriminal proceedings. (See Cal.
Const., art. I, § 16; cf. Code Civ. Proc., § 631; People v. Bradford (1997) 14 Cal.4th
1005, 1052-1053 [in criminal prosecution, no express, personal waiver from a defendant
is required for waiver of constitutional right to testify; a trial judge may safely assume
that a nontestifying defendant is abiding by his counsel's trial strategy].)
        Consequently, it is unnecessary in this case to repeat the majority's conclusions in
People v. Blackburn (2013) ___ Cal.App.4th ___ [2013 WL 1736497] regarding the
exact extent of a counsel's authority to waive a jury for trial on a petition for continued
treatment under the Mentally Disordered Offender (MDO) Act. (See Pen. Code,
§§ 2970, 2972, subd. (a).) As the U.S. Supreme Court stated: "The duty of this court, as
of every other judicial tribunal, is to decide actual controversies by a judgment which can
be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it." (Mills v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132]; see
Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536,
541.)




                                    _____________________________


                                    ELIA, J.




                                               2
