Filed 6/7/13 P. v. Gonzalez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037267
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC9945524)

             v.

ALEJANDRO MUNOS GONZALEZ,

         Defendant and Appellant.



                                         I. STATEMENT OF THE CASE
         In 2000, after a bench trial, the court found defendant Alejandro Munos Gonzalez
not guilty by reason of insanity (NGI) of arson and assault and battery and committed
him to the Department of Mental Health (Department) for treatment at Atascadero State
Hospital (ASH). (Pen. Code, §§ 451, subd. (d), 242, 243, subd. (a), 1026.5, subd. (a).)1
Defendant appeals from an order extending his commitment until September 9, 2013. 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 order.

         1
          “Technically, once a defendant has been found not guilty by reason of insanity,
he is no longer a criminal defendant, but a person subject to civil commitment.” (People
v. Lara (2010) 48 Cal.4th 216, 222, fn. 5.) We shall refer to such persons as defendants
or NGIs rather than “committees” or “persons committed.”
       All unspecified statutory references are to the Penal Code.
                        II. BACKGROUND AND PROCEDURAL HISTORY
       On September 2, 1999, defendant poured gasoline on a neighbor’s boat and set it
on fire. On September 17, he assaulted his mother. On September 19, he threatened to
kill his sister. According to defendant, he heard voices before these incidents challenging
and daring him to do something. As noted, he was found NGI and committed to ASH.
       In 2003, the Santa Clara Count District Attorney (the District Attorney) sought to
extend defendant’s NGI commitment. However, on March 12, 2003 before an extension
hearing, defendant was released on outpatient status to Harper Medical Group (Harper)
under the South Bay Conditional Release Program (CONREP). Four days later, Harper
asked the court to recommit defendant because he was exhibiting bizarre behavior, and
shortly thereafter, the court ordered him to Napa State Hospital (NSH) for continued
treatment. Thereafter, defendant waived his rights to a trial on the petition and agreed to
an extension of his commitment until March 14, 2005.
       In 2004, before the commitment expired, defendant sought release on the ground
that his sanity had been restored. (§ 1026.2.) The court ordered NSH to evaluate
defendant. During this time, the District Attorney sought another extension of the
commitment to March 2007. After evaluating defendant, NSH recommended that his
commitment be extended again. In April 2005, the court held a jury trial on the petition,
but the jury was unable to reach a verdict, and the court declared a mistrial. The matter
was not retried because defendant agreed to the extension on condition that he be released
on outpatient status.
       Thereafter, defendant was placed in a transitional residence for CONREP clients
called Northstar. In August, 2005, he “decompensated,” and the court ordered a
temporary commitment to NSH. In February 2006, Harper recommended that he be
returned to Harper, and in March 2006, defendant’s outpatient status was reinstated.
However, defendant again quickly decompensated, becoming delusional, paranoid,
violent, intimidating, verbally abusive, and threatening. In April 2006, he was

                                             2
temporarily recommitted to NSH to restabilize. He responded to treatment, and in
July 2006, he regained outpatient status.
       In a report dated August 2006, CONREP advised the court that defendant was
stable, controlling his behavior, and motivated to return to the community. He also
understood the need to deal with his psychiatric problems without resorting to threats and
intimidation. In November 2006, the court revoked defendant’s outpatient status and
recommitted him to NSH because he had verbally abused and threatened staff and had
pretended to start a fire.
       Defendant’s commitment under the court’s previous order expired on
March 14, 2007. On March 22, the court, after a hearing, reconfirmed the previous
revocation of defendant’s outpatient status. In June 2007, defendant petitioned for a writ
of habeas corpus alleging the wrongful denial of “dignity, respect, and humane care.”
The District Attorney sought another extension. In August, the court denied defendant’s
habeas petition. In October 2007, counsel submitted the determination of the extension
petition on the latest psychological evaluation by NSH. Based on that report, the court
extended defendant’s commitment to September 9, 2009.
       In January 2009, defendant filed another habeas petition. In March 2009, he also
sought a determination that his sanity had been restored. At that time, the District
Attorney sought another extension. On August 26, 2009, defendant personally waived all
of his rights and admitted that he posed a danger to others if released, and the court
extended his commitment until September 9, 2011.
       One year later, on September 17, 2010, defendant sought release on outpatient
status to CONREP but later withdrew his request. It appears that he renewed it in
February 2011. In April 2011, the District Attorney again sought another extension. On
April 28, 2011, the court denied defendant’s request for release. On June 24, 2011,
counsel waived a jury trial on the extension petition, and on August 4, 2011, the court



                                             3
granted the petition and extended defendant’s commitment to September 9, 2013. As
noted, defendant appeals from that order.
                             III. THE EXTENSION HEARING
       Dr. James Eyerman, M.D., a 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 November 2010. He testified that defendant
suffered from schizo-affective disorder that caused him to have difficulty controlling his
dangerous behavior. He also had problems with auditory hallucinations both before and
after the commitment offense in 1999. Although treatment with medication had helped
control certain extreme manifestations of defendant’s disorder, lesser manifestations,
including rapid mood swings, delusions, and hyper-religiosity, persisted. Although
defendant could be pleasant, at other times he was irritable, argumentative, and perhaps
threatening. These were the primary reasons his previous releases to CONREP were
revoked. Although defendant understood the need to continue taking medication, Dr.
Eyerman was not sure how long defendant would do so without some supervision. He
noted studies revealing that a high percentage of persons stop taking their medication
after being released from supervision.
       Dr. Eyerman commended defendant for acknowledging that he had a mental
disorder, understanding the connection between his disorder and his commitment offense,
and learning to recognize the warning signs of his disorder, including mood swings.
However, he noted that defendant did not recognize warning signs before becoming upset
or while he was upset. He had been working on a relapse prevention plan and had
identified his impulsivity and anger as risk factors. He had also worked on strategies to
help him recognize these factors so that he would not become aggressive and threatening.
Although at times, defendant had not acted impulsively when he had gotten angry, he had
not been able to consistently restrain his impulsivity. Dr. Eyerman noted that within the
previous 10 months, defendant had been verbally aggressive and threatening to a female

                                             4
staff member. Moreover, defendant initially felt that his hostility was justified. Only
later did he acknowledge that his actions had been improper.
       Defendant had manifested his mood swings in a pushing incident and in threats of
self harm, although Dr. Eyerman opined that those incidents might have been caused in
part by a chemical imbalance related to the mood stabilizing medication defendant had
been taking. For that reason, his staff began to monitor defendant’s chemical levels
regularly especially when he seemed particularly irritable. Dr. Eyerman also noted that
defendant had in the past year been placed on “continuous insight observation”—i.e.,
one-on-one staffing—after an incident in which he “pinned a staff member against a
wall.” He noted some other incidents in which defendant tried to strip a staff member or
became hostile toward one staff member and verbally abusive. He later filed a complaint
against the latter demanding that she stop some unspecified conduct “before I take things
the wrong way and she ends up on the floor.”
       In all, Dr. Eyerman opined that defendant still had some difficulty with mood
swings and irritability. Defendant had done well for the last few months, but
Dr. Eyerman did not find him ready for release even to CONREP on outpatient status.
He opined that defendant should first demonstrate that he can maintain his behavior for
six months in his highly supervised and structured locked unit, thereafter in an open unit
placement, and then on outpatient status before being unconditionally released.
Dr. Eyerman noted that defendant still had a few months to go before he could become
eligible for an open unit.
       Defendant acknowledged that he had a mental disorder and will need treatment
and medication for the rest of his life. He said he intended to continue taking medication
because without it he cannot act properly. He said that the medication helped him
channel his energy in a positive way, and he would continue to take it even without
supervision. He pointed out that he has been avidly participating in numerous groups and



                                             5
programs, including therapy, AA, NA, sports, relapse prevention, and anger management.
As a result, he had learned tools to help him cope with aggressive and obnoxious people.
       Defendant acknowledged an incident with a female staff member, although he
denied pinning her against the wall and said he only pushed her. He could not recall any
of the other incidents mentioned by Dr. Eyerman. Defendant acknowledged his previous
unsuccessful releases on outpatient status. However, he said that now he would handle
himself differently.
                       IV. AN NGI COMMITMENT AND EXTENSION
       Under the statutory scheme for NGI commitments, a defendant who has been
committed to a state hospital after being found NGI may not be kept in actual custody
longer than the maximum state prison term to which he or she could have been sentenced
for the underlying offense. (§ 1026.5, subd. (a)(1).) At the end of that period, the district
attorney can seek a two-year extension by filing a petition alleging that the defendant
presents a substantial danger of physical harm to others because of his or her mental
disease, defect, or disorder. (§ 1026.5, subds. (b)(1)-(2).) At that time, the court is
required to “advise the person named in the petition . . . of the right to a jury trial”
(§ 1026.5, subd. (b)(3)) and conduct a jury trial “unless waived by both the person and
the prosecuting attorney” (§ 1026.5, subd. (b)(4)). The person is “entitled to the rights
guaranteed under the federal and State Constitutions for criminal proceedings,” and all
proceedings must “be in accordance with applicable constitutional guarantees.”
(§ 1026.5, subd. (b)(7).)2

       2
          Section 1026.5, subdivision (b)(3) provides: “When the petition is filed, the
court shall advise the person named in the petition of the right to be represented by an
attorney and of the right to a jury trial. The rules of discovery in criminal cases shall
apply. If the person is being treated in a state hospital when the petition is filed, the court
shall notify the community program director of the petition and the hearing date.
       Section 1026.5, subdivision (b)(4) provides: “The court shall conduct a hearing on
the petition for extended commitment. The trial shall be by jury unless waived by both
the person and the prosecuting attorney. The trial shall commence no later than 30

                                               6
                                    V. CONTENTIONS
       Defendant contends that the court committed reversible error in failing to give the
required advisement and conducting a bench trial without obtaining his personal waiver.
He argues that a competent NGI is entitled to decide whether to have a jury trial and
therefore, under section 1026.5, the court must conduct a jury trial unless the jury is
waived either personally by the NGI or by counsel at the NGI’s direction or with his or
her knowledge and consent. Citing People v. Powell (2004) 114 Cal.App.4th 1153,
(Powell), the Attorney General argues that defendant’s personal waiver is not required
because counsel has exclusive control over whether to have a jury trial.
                                       VI. DISCUSSION
       Recently, in People v. Tran (2013) 216 Cal.App.4th 102 (Tran), this court rejected
the Attorney General’s claim that under section 1026.5, counsel, not the NGI, controls
the decision of whether to waive a jury trial. Rather, we concluded that under the statute,
a competent defendant is entitled to decide whether to waive a jury trial and may do so
personally or through counsel; however, when the defendant is not sufficiently competent
to make the decision, he or she must act through counsel, and counsel may waive a jury
even over the defendant’s objection.
       We noted that the statutory language pertinent language in the waiver provision—
“unless waived by both the person and the prosecuting attorney”—does not confer
exclusive control on counsel; nor does it expressly or implicitly bar NGIs from
controlling the decision. We further observed that when read together, the advisement


calendar days prior to the time the person would otherwise have been released, unless
that time is waived by the person or unless good cause is shown.
        Section 1026.5, subdivision (b)(7) provides, in relevant part: “The person shall be
entitled to the rights guaranteed under the federal and State Constitutions for criminal
proceedings. All proceedings shall be in accordance with applicable constitutional
guarantees. The state shall be represented by the district attorney who shall notify the
Attorney General in writing that a case has been referred under this section. If the person
is indigent, the county public defender or State Public Defender shall be appointed.”

                                              7
and waiver provisions do not reflect a legislative intent to confer such exclusive control.
Rather, in requiring that the court advise “the person named in the petition” and conduct a
jury trial unless waived by “the person,” the statute contemplates that NGIs can make the
decision and expressly provides for them to do so. (Tran, supra, 216 Cal.App.4th at
p. 125.)
       We further reasoned, “that if the Legislature had intended to give counsel
exclusive control, it could have done so easily and clearly by requiring a jury trial unless
waived by ‘the person’s attorney’ just as it specified a waiver by the district attorney.’
(Cf. § 2966, subd. (b) [requiring hearing within specified time unless waived by
‘petitioner or his or her counsel’].) Conversely, we doubt the Legislature would have
clouded such an intent by requiring the court to advise ‘the person’ and further requiring
a jury trial unless waived by ‘the person.’ ” (Tran, supra, 216 Cal.App.4th at p. 125.)
We also presumed that the Legislature intended the advisement to perform a meaningful
and useful function, and noted that if the statute gave counsel exclusive authority, an
advisement would serve no meaningful function, and there would have been no need to
make it mandatory. (Ibid.)
       We acknowledged that in People v. Masterson (1994) 8 Cal.4th 965, 974
(Masterson), the Supreme Court concluded that in a collateral proceeding to determine
the competency of a criminal defendant to stand trial, counsel had exclusive control over
the whether to request a jury and may decline to do so over the defendant’s objection.
(Id. at pp. 971, 973; see § 1368.) We pointed out that the court’s conclusion rested on
both the specific nature of a competency proceeding, where the defendant necessarily
plays a lesser role. The court’s conclusion also reflected the view that when a
defendant’s competency is called into question and must be determined, the defendant is
assumed to be unable to act in his or her own best interests and must therefore act
through counsel. (Tran, supra, 216 Cal.App.4th at p. 127.)



                                              8
       We noted that more recently in People v. Barrett (2012) 54 Cal.4th 1081 (Barrett),
the court similarly recognized counsel exclusive authority 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 they are unable to
act in their own best interests and must act through counsel. (Id. at pp. 1103-1104.)
       As we explained in Tran, 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.” (Tran, supra, 216 Cal.App.4th at p. 129.)
       Turning to the NGI context, we found it unreasonable to similarly assume that all
NGIs lack the capacity to make a rational decision about whether to have a jury trial.
(Tran, supra, 216 Cal.App.4th at p. 131.) In this regard, we relied on Barrett, where the
court carefully 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, comprehend and
control the jury decision. The Barrett court concluded that unlike 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

                                              9
decision to request or waive a jury trial. (Barrett, supra, 54 Cal.4th at pp. 1108-1109;
Tran, supra, 216 Cal.App.4th at p. 132.)
       We found the Attorney General’s reliance on Powell to support to establish
counsel’s exclusive authority to be misplaced. We noted that in Powell, counsel waived a
jury, but the defendant objected to counsel’s waiver and requested a jury. At that time,
however, the defendant was medicated and experiencing mood swings, and when the
court denied the request, the defendant became so argumentative, belligerent, and
disruptive that he had to be removed from the courtroom. In upholding counsel’s waiver,
the court found that the defendant was not competent to waive jury at the extension trial,
and therefore, counsel was authorized to do so on his behalf. (Powell, supra, 114
Cal.App.4th at pp. 1157-1158; Tran, supra, 216 Cal.App.4th at p. 131.) Thus, as we
pointed out in Tran, Powell was consistent with—indeed it mirrored—the Masterson-
Barrett rationale for recognizing counsel’s exclusive control over the jury issue. (Ibid.)
       The issue before us now, however, is whether the court committed reversible
error. 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.
       As defendant correctly notes, the record does not reflect that the court gave the
required advisement. This is understandable because counsel waived defendant’s at the
pretrial hearing on June 24, 2011, at which time counsel waived a jury 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, the court may reasonably
expect counsel to discuss all pertinent matters that will arise or that have arisen in pretrial
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

                                              10
misleads the court. (Bus. & Prof.Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5–
200(B).)” (In re Conservatorship of Person of John L. (2010) 48 Cal.4th at 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. On the contrary, as
noted, this was not the first extension of defendant’s commitment, and he actually had a
jury trial on an extension in April 2005. When the court declared a mistrial, defendant
waived his rights and agreed to an extension in exchange for release on outpatient status.
       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.3
       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
       3
         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.)


                                             11
(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.)
       Here, Dr. Eyerman testified as an expert in diagnosis of mental disorders and risk
assessment. He was also defendant’s treating psychiatrist. He testified that defendant
suffered from schizo-affective disorder that caused him to have difficulty controlling his
dangerous behavior. Although his medication controlled the extreme manifestations of
his disorder, less extreme manifestations, including rapid mood swings, delusions, and
hyper-religiosity, persisted, at times, defendant because irritable, argumentative, and
perhaps threatening to others. Moreover, Dr. Eyerman could not conclude with that
defendant would continue to take his medication if unconditionally released without any
supervision.
       Dr. Eyerman opined that defendant was not fully able to consistently implement
the strategies that help him recognize the triggers and warning signs of potential
aggression and threatening behavior either before becoming upset or while in such a
state. He noted a number of incidents within the past year in which defendant had been

                                              12
aggressive and threatening to others and had sent a note that arguably contained a
threatening comment.
       In all, Dr. Eyerman opined that defendant had made commendable progress.
Nevertheless, he currently posed a risk of harm to others if unconditionally released. He
recommended that defendant’s commitment be extended so that defendant could establish
eligibility for placement in an open unit and then for outpatient status. In this regard, we
note that defendant’s previous releases on outpatient status had been short lived and
resulted in his recommitment.
       Defendant acknowledged his mental illness and the need to take medication for the
rest of his life and said he intended to do so even without supervision because it helped
him act properly. Through the various programs he had participated in, he had learned
how to channel his energy and cope with obnoxious and aggressive people. And
although he had failed to maintain stability when previously released on outpatient status,
he asserted that he would now handle himself differently.
       Defendant does not suggest that Dr. Eyerman’s informed opinion does not
constitute substantial evidence supporting the extension order. Nor does his own
testimony impeach or substantially undermine Dr. Eyerman’s opinion and the bases for it.
Finally, defendant’s previous record of failure on outpatient status provides compelling
cause to be concerned about his ability to maintain the ability to control the
manifestations of his disorder if unconditionally released without any supervision.
       Given the record before us, and even assuming that defendant was unaware of his
right to a jury trial, we do not find it reasonably probable that defendant would have
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.




                                             13
Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [denial of statutory right to MDO trial
harmless].)4
                                    VI. DISPOSITION
       The order extending defendant’s commitment is affirmed.
                                          ______________________________________
                                                     RUSHING, P.J.




I CONCUR:




____________________________________
           PREMO, J.




       4
          Defendant claims that the federal due process clause guaranteed him the right to
a jury trial on the petition to extend his NGI commitment. However, the courts in
Powell, supra, 114 Cal.App.4th at page 1159, and Montoya, supra, 86 Cal.App.4th at
pages 831-832 rejected claims that a jury trial guaranteed by the due process clause.
Moreover, in People v. Fuquay (2013) 215 Cal.App.4th 883, this court agreed with
Powell and Montoya.

                                            14
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, p. 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 regarding waiver 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 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. Tran (2013) ___ Cal.App.4th ___ [2013 WL 1881050] regarding the exact
extent of a counsel's authority to waive a jury for trial on a petition for extended
commitment pursuant to Penal Code section 1026.5. As the United States 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
