Filed 4/25/13
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H037530
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. 190802)

            v.

PETER FREIDERICH MORTIMER,

        Defendant and Appellant.



                              I. STATEMENT OF THE CASE
        In 1996, the court found defendant Peter Freiderich Mortimer not guilty by reason
of insanity (NGI) of assault with a deadly weapon, battery on a peace officer, and
resisting arrest and committed him to the Department of Mental Health (Department) for
treatment at Napa State Hospital (NSH). (Pen. Code, §§ 148, subd. (a), 242, 243,
subd. (b), 245, subd. (a)(1), 1026.5, subd. (a).)1 Since then, his commitment has been
extended five times. (§ 1026.5, subd. (b).) On May 18, 2011, before the last extension
expired, the Santa Clara County District Attorney filed a petition to extend it again. At a
pretrial hearing on September 9, 2011, defense counsel advised the court that defendant




        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.
wanted a bench trial. On October 20, 2011, after the trial, the court sustained the petition
and extended defendant‘s commitment to December 5, 2013.
       On appeal from the extension order, defendant claims the court violated his
constitutional and statutory rights by failing to advise him of his right to a jury trial and
conducting a bench trial without obtaining his express, personal waiver.
       We affirm the extension order.
                               II. THE EXTENSION HEARING
       Dr. Teo Ernst, Ph.D., defendant‘s treating psychologist at NSH, testified as an
expert in the diagnosis and treatment of mental disorders and risk assessment. He
explained that defendant suffered from schizo-affective disorder, bipolar type, and poly-
substance dependence. Defendant also had hepatitis C, diabetes, dyslipidmia, and
tachycardia. In addition, he had ―intellectual deficits‖ which caused problems with
memory, concentration, attention and ―executive functioning.‖ These additional
problems made it difficult for defendant to understand the factors that contributed to his
violent conduct and hindered his ability to develop a plan to maintain stability and safety
in the community. Defendant also continued to experience auditory and command
hallucinations, including a recent hallucination in which a voice directed him push a
nurse down some stairs. Defendant did not act on that hallucination. In addition,
defendant reported having ―acid flashbacks‖ which, according to Dr. Ernst, suggested
that he had visual hallucinations as well.
       Dr. Ernst testified that defendant had recently acknowledged having a mental
disorder. However, he was unable to identify its symptoms without being prompted.
Moreover, defendant still maintained delusional thinking about the circumstances of his
commitment offense. Dr. Ernst reported that defendant had completed preliminary work
on two parts of a wellness recovery action plan (WRAP), but the parts were disorganized
and not yet integrated into a comprehensive plan. Defendant had also participated two
groups run by Dr. Ernst, but he had trouble staying focused on course material and acting

                                              2
appropriately. Defendant had made progress in his substance abuse treatment and had
maintained sobriety in the least restrictive environment at NSH. He understood the
negative impact that drugs had had on him, and he had done substantial work on two
relapse prevention plans. Nevertheless, he talked about all the drugs he could use in the
community.
       Dr. Ernst opined that defendant currently posed a substantial risk of danger to
others. His opinion was based on defendant‘s failure to take medication without
prompting, which increased the risk that he would not do so on his own. Dr. Ernst also
noted defendant‘s cognitive limitations and disorganization. He said that defendant
lacked insight into his drug use, the relationship between his mental illness and his
violent behavior, and the symptoms of his mental disorder. He further noted that
defendant lacked empathy for his victims and did not appreciate how dangerous he
became when he was under the influence of drugs and alcohol and in a psychotic state.
Dr. Ernst was also concerned that defendant would again use drugs and alcohol, which
would substantially increase the risk that he would become destabilized, psychotic, and
violent.
       Defendant did not testify or present any evidence.
                       III. 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

                                              3
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
                                  IV. FAILURE TO ADVISE
       Defendant contends that the court erred in failing to advise him of the right to a
jury trial. He argues that because the record does not contain evidence that he was
advised by anyone, he could not have waived the right and was therefore erroneously
denied a jury trial.
       As noted, 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 record does not reflect that the court directly advised defendant when the
petition was filed or did so at any time thereafter. The court‘s failure to comply with the
statutory directive is understandable because when the petition was filed, defendant was
at NSH, defense counsel thereafter waived defendant‘s presence at all of the pretrial

       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
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.‖

                                              4
proceedings, the court did not order defendant‘s appearance for the purpose of an
advisement, and defendant first appeared on the day of the bench trial. However, the
court‘s failure to advise does not compel reversal.
       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.)
       Clearly counsel knew that defendant had the right to a jury trial because he
advised the court that defendant wanted a bench trial. Moreover, where, as here, counsel
waives a defendant‘s presence at all 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 hearings, including the right
to a jury trial and whether to have one. ―Like 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 Person of John L. (2010) 48 Cal.4th 131, 151-152 (John L.), 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



                                              5
Cal.App.3d 265, 272 (Mary K.) [where no evidence to the contrary, court may presume
counsel discussed jury waiver with client before waiving on client‘s behalf].)
       Furthermore, the record does not suggest that defendant was unaware of his right
to a jury trial. This was defendant‘s sixth commitment extension proceeding. The record
also does not suggest that defendant wanted a jury trial or was unaware that counsel
intended to waive it. Indeed, when counsel did so, he said, ―Mr. Mortimer would like a
court trial,‖ which, if anything, implies that counsel acted with defendant‘s knowledge
and consent. Last, we note that when he appeared at trial, defendant did not object or
express any concern or surprise that there was no jury.3
       Finally, a single opinion by a psychiatric expert that a defendant is currently
dangerous due to a mental disorder can constitute substantial evidence to support the
extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165;
People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
       Dr. Ernst‘s opinion constitutes overwhelming evidence to support the order
extending defendant‘s commitment. Defendant had a serious mental disorder, which he
had only recently acknowledged, and suffered auditory and perhaps visual hallucinations.
His intellectual deficits made it difficult for him to stay focused and understand his
disorder, its symptoms, and its triggers, which in turn had hindered his ability to develop
a comprehensive and integrated plan to maintain his stability in the community. He did

       3
          However, 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 an alternative a remedy.
        As a general rule, claims grounded in facts outside the record can be raised by
habeas petition. (See People v. Gray (2005) 37 Cal.4th 168, 211; In re Bower (1985) 38
Cal.3d 865, 872.) A person improperly committed may resort to habeas corpus to
challenge an involuntary civil commitment. (See Pen. Code, § 1473, subd. (a) [―Every
person unlawfully imprisoned or restrained of his liberty, under any pretense whatever,
may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or
restraint.‖]; see also In re Michael E. (1975) 15 Cal.3d 183.)
        We observe that defendant has not sought habeas relief.

                                             6
not appreciate how dangerous he became when his symptoms appeared, and he needed
prompting to take his medication. Moreover, although he had been able to maintain
sobriety within the hospital environment, there was a substantial risk of his becoming
destabilized, psychotic, and violent if he used drugs and alcohol.
       Defendant offered no evidence or testimony to contradict or undermine Dr. Ernst‘s
testimony.
       Given the record, we do not find it reasonably possible, let alone reasonably
probable, that defendant would have obtained a more favorable result had the court
ordered his presence at a pretrial hearing and directly advised him of his right to a jury
trial. (People v. Watson, supra, 46 Cal.2d at p. 836; cf. People v. McClellan (1993) 6
Cal.4th 367, 377, 378 [failure to advise about sex registration requirement harmless].)4
       Citing Hicks v. Oklahoma (1980) 447 U.S. 343 (Hicks), defendant asserts that
―when a state statute provides for a particular procedure, especially with respect to a
liberty interest, failure to follow that procedure is a violation of due process under the
Fourteenth Amendment.‖ Thus, he argues that in failing to follow the advisement
directive, the court violated his constitutional right to due process. Defendant‘s reliance
on Hicks is misplaced.
       The United States Supreme Court has not cited Hicks for the proposition asserted
by defendant. ―[The United States Supreme Court has] long recognized that a ‗mere
error of state law‘ is not a denial of due process. [Citation.] If the contrary were true,
then ‗every erroneous decision by a state court on state law would come [to this Court] as

       4
          We do not intend to suggest that it was improper or inappropriate for counsel to
waive defendant‘s presence or that the court had a duty to order defendant‘s presence in
order to directly advise him. However, a direct advisement is not the only way for the
court to ensure that an NGI is made aware of the right to a jury trial. In our view, the
practical difficulty in advising an NGI committed to a state hospital could easily be
solved with an advisement and waiver form for the NGI to read and sign. (See People v.
Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form proper substitute for judicial
advisement].)

                                              7
a federal constitutional question.‘ [Citations.]‖ (Engle v. Isaac (1982) 456 U.S. 107,
121, fn. 21.) Due process does not safeguard ―the meticulous observance of state
procedural prescriptions . . . . ‖ (Rivera v. Illinois (2009) 556 U.S. 148, 158 [―Because
peremptory challenges are within the States‘ province to grant or withhold, the mistaken
denial of a state-provided peremptory challenge does not, without more, violate the
Federal Constitution].)
       In People v. Montoya (2001) 86 Cal.App.4th 825 (Montoya), the court rejected the
mentally disordered offender‘s (MDO) 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, [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, supra, 447 U.S. at p. 340.)
       Montoya’s analysis applies to defendant‘s claim that due process guaranteed the
right to a jury advisement. The required advisement does not create a state liberty
interest, and a court‘s failure to advise does not deprive defendant of any liberty interest.
(See Swarthout v. Cooke (2011) ___ U.S. ___ [131 S.Ct. 859, 862] [―When, however, a
State creates a liberty interest, the Due Process Clause requires fair procedures for its
vindication—and federal courts will review the application of those constitutionally
required procedures‖]; e.g., People v. Letner (2010) 50 Cal.4th 99, 135.) Rather, like the

                                               8
right to a jury trial itself, the required advisement is merely a matter of state procedural
law.
            V. PERSONAL WAIVER AND COUNSEL’S AUTHORITY TO WAIVE
       Defendant contends counsel‘s waiver was ineffective, and the court erred in
accepting it, because section 1026.5, subdivisions (b) requires a jury trial unless the NGI
personally and expressly waives a jury trial in open court. We disagree.
       The federal and state Constitutions guarantee the right to a jury trial in criminal
cases, and that right can be waived only by the defendant personally. (U.S. Const., 6th
Amend.; Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304-308;
People v. Ernst (1994) 8 Cal.4th 441, 446.) However, the right and the personal-waiver
rule do not directly apply in NGI commitment trials because such proceedings are
fundamentally civil, not criminal. (People v. Powell (2004) 114 Cal.App.4th 1153, 1157
(Powell); People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485
(Williams); cf. People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell)
[constitutional right not applicable in civil proceedings to commit a defendant as a
sexually violent predator (SVP)]; Montoya, supra, 86 Cal.App.4th at pp. 829-830 [same
re proceeding to commit MDO]; People v. Otis (1999) 70 Cal.App.4th 1174, 1176 (Otis)
[same].)
       The federal Constitution also guarantees the right to a jury trial in civil cases, but
that guarantee is not applicable to the states. (U.S. Const., 7th Amend. [right to a jury
trial]; McDonald v. City of Chicago (2010) ___ U .S. ___ [130 S.Ct. 3020, 3034-3035,
fn. 13] [not applicable to states]; Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 827
[same]; Hung v. Wang (1992) 8 Cal.App.4th 908, 927 [same].)
       The state Constitution guarantees the right to a jury trial in civil actions but only if
the right existed at common law in 1850, when the Constitution was first adopted. (Cal.
Const., art. I, § 16; C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d
1, 8.) A civil commitment trial, such as an NGI extension trial, is ―initiated by a petition

                                              9
independently of a pending action and [is] of a character unknown at common law.‖
(Rowell, supra, 133 Cal.App.4th at p. 451.) It is neither an action at law nor a suit in
equity and is instead considered a ―special proceeding.‖ (Montoya, supra, 86
Cal.App.4th at p. 829; see Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d
815, 822; Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 678; 3 Witkin, Cal.
Procedure (5th ed. 2008) Actions, § 65, subd. 20, pp. 139-140; Code Civ. Proc., §§ 21-
23.)5
        In a ―special proceeding,‖ the right to a jury trial is generally a matter of
legislative grant, and not constitutional right. (Corder v. Corder (2007) 41 Cal.4th 644,
656, fn. 7 [state constitutional right to a jury trial not applicable in special proceedings];
Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 76; Agricultural Labor
Relations Bd. v. Tex-Cal. Land Management, Inc. (1987) 43 Cal.3d 696, 707; Rowell,
supra, 133 Cal.App.4th at p. 452; People v. Williams (2003) 110 Cal.App.4th 1577, 1590
[no constitutional right to trial in civil commitment proceedings].)6

        5
         Judicial remedies are divided into two classes: ―[a]ctions‖ and ―[s]pecial
proceedings.‖ (Code Civ. Proc., § 21.) An ―action‖ is statutorily defined as ―an ordinary
proceeding in a court of justice by which one party prosecutes another for the declaration,
enforcement, or protection of a right, the redress or prevention of a wrong, or the
punishment of a public offense.‖ (Code of Civ. Proc. § 22.) ―Every other remedy is a
special proceeding.‖ (Code of Civ. Proc., § 23.) ―Actions are of two kinds: [¶] 1. Civil;
and [¶] 2. Criminal.‖ (Code of Civ. Proc., § 24.)
       Special proceedings include SVP commitment trials (People v. Yartz (2005) 37
Cal.4th 529, 535); competence trials (People v. Masterson (1994) 8 Cal.4th 965, 974
(Masterson)); trials extending a juvenile commitment (In re Gary W. (1971) 5 Cal.3d
296, 309); narcotics addict commitment trials (In re De La O (1963) 59 Cal.2d 128, 150;
mentally commitment trials (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677,
1685, fn. 7).
        6
         Even if the state Constitution did guarantee the right to a jury trial in an NGI
commitment proceeding, defendant‘s claim would fail because constitutional right ―may
be waived by the consent of the parties expressed as prescribed by statute,‖ and the
general rule is that where the constitutional right exists, it can be waived by either a party
or the party’s attorney. (Cal. Const., art. I, § 16 [right to jury trial]; see Code of Civ.

                                               10
       Generally, in a special proceeding, the statutory right to jury trial may be waived
by either a party or counsel unless otherwise provided by statute. (See John L., supra, 48
Cal.4th 131, 148.) Thus, we turn to the statutory language to see whether it excludes
waivers by counsel.
       As noted, section 1026.5, subdivision (b)(4) requires the court to conduct a jury
trial ―unless waived by both the person and the prosecuting attorney.‖ The question
before us turns on the meaning of the term ―the person.‖ Does it refer literally and
exclusively to ―the person‖; or does it more broadly include the person‘s attorney? The
issue is not new, and every court that has addressed it has adopted the broader view.
       In Otis, supra, 70 Cal.App.4th 1174, the court dealt with section 2966,
subdivision (b), which requires a jury trial when a person challenges his or her MDO
certification unless the jury is ―waived by both the person and the district attorney.‖
There, 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 court denied the request. (Id. at pp. 1175-1176.)
       In upholding counsel‘s waiver, the court found that ―nothing in the requirement
that the waiver must be by ‗the person‘ precludes the person‘s attorney from acting on his
behalf‖ and noted that ―[t]he Legislature did not say the waiver had to be made
‗personally.‘ ‖ (Otis, supra, 70 Cal.App.4th at p. 1176.) The court opined that if the
Legislature had intended to require a personal waiver, it would have made its intent clear
and unambiguous. (Ibid.)




Proc, § 631 [prescribing types of waiver]; Zurich General Acc. & Liability Ins. Co. v.
Kinsler (1938) 12 Cal.2d 98, 105, overruled on other grounds in Fracasse v. Brent (1972)
6 Cal.3d 784, 792; [waiver by party or counsel]; 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 also Code Civ. Proc., § 283, subd. (1) [counsel has
authority to bind client in any of the steps of an action].)

                                             11
       The court further 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 p. 1177, italics added.)
       In Montoya, supra, 86 Cal.App.4th 825, the court reached the same conclusion
concerning identical language in section 2972, subdivision (a), which requires a jury trial
on an MDO commitment extension unless waived ―by the person and the district
attorney.‖ There too, counsel waived a jury. (Id. at pp. 828-829.)
       The court concluded, as we have, that the constitutional requirement of a personal
waiver in criminal cases was inapplicable because a commitment trial is fundamentally a
civil proceeding. (Montoya, supra, 86 Cal.App.4th at pp. 829-830.) The court further
observed that in both civil actions, where there is a state constitutional right to a jury trial,
and in ancillary criminal proceedings, where the right to a jury trial is statutory, not
constitutional, a jury trial can be waived by either the client or counsel. (Id. at pp. 829-
830.) Accordingly, the court looked to the waiver provision to see if it permitted or
prohibited waivers by counsel. (Id. at p. 830.)
       In upholding counsel‘s waiver, the court followed Otis. It too noted that the
statutory language did not expressly require a personal waiver or clearly preclude a
waiver by counsel. The court also agreed 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 such as the MDO in Otis. (Montoya, supra, 86 Cal.App.4th at
pp. 830-831.)
       The court acknowledged that ―a person could be mentally disordered for some
purposes and not for others.‖ (Montoya, supra, 86 Cal.App.4th at p. 831.) However, it
noted that there, the defendant‘s mind was not functioning normally, and he had

                                               12
repeatedly and recently demonstrated poor judgment and aberrant behavior. In upholding
counsel‘s waiver, 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.‖ (Ibid.)
       This brings us to Powell, supra, 114 Cal.App.4th 1153, which is directly on point.
There, the NGI objected to counsel‘s waiver and requested a jury. When the court denied
the request, the defendant became so argumentative, belligerent, and disruptive that he
had to be removed from the courtroom. On appeal, the defendant claimed that counsel‘s
waiver was ineffective because section 1026.5, subdivision (b)(4) required his personal
waiver. (Id. at pp. 1157-1158.)
       In rejecting this claim, the court cited Otis and noted that ―[t]he Legislature, in
enacting section 1026.5, did not say that the jury waiver must be ‗personally‘ made by
the NGI committee.‖ (Powell, supra, 114 Cal.App.4th at p. 1159.) Moreover, mirroring
the Otis court‘s view concerning incompetent persons, the court opined generally that
―[a]n insane person who is ‗a substantial danger of physical harm to others‘ [citation]
should not be able to veto the informed tactical decision of counsel.‖ (Id. at p. 1158.)
The court pointed out that the defendant had been found insane twice, medical staff had
diagnosed him with paranoid schizophrenia, and there was no evidence he had regained
his sanity. The court further noted that the defendant had a history of violence, believed
certain people should be killed, and sought release to do so. (Id. at p. 1158.) The court
asked, ―Can such a person intelligently invoke or waive the right to a jury trial? Is such a
person competent to meaningfully understand who should make the determination of
whether his commitment should be extended?‖ (Ibid.) The court answered, ―Common
sense dictates that appellant should not be able to veto his attorney‘s decision to waive a
jury. The record demonstrates that appellant was suffering from a severe mental
disorder. On the day of the purported demand for jury, appellant was medicated,



                                             13
experiencing mood swings, and was so belligerent and disruptive that he had to be
removed from the courtroom.‖ (Ibid.)
       In support of its analysis, the court cited People v. Angeletakis (1992) 5
Cal.App.4th 963 (Angeletakis). There, the defendant faced a trial to extend his NGI
commitment and sought a preliminary determination of his competence. (See § 1368.)
The court noted that section 1368 did not apply in civil proceedings and opined that an
NGI did not have to be competent at a trial to extend his or her commitment. (Id. at
pp. 967-968; Juarez v. Superior Court (1987) 196 Cal.App.3d 928, 931-932 [same]; cf.
People v. Moore (2010) 50 Cal.4th 802, 829 [trial on commitment as SVP does not
require the defendant‘s competence].) As the court explained, ―Angeletakis will be
confined and receive treatment for his mental condition whether his commitment is
extended under section 1026.5 or such proceedings are suspended under section 1368.
While we appreciate the distinction between mental competence to stand trial and
dangerousness to others due to a mental disease, defect, or disorder, we think the interests
of a person facing a commitment extension are adequately protected by competent
counsel and the other procedural safeguards afforded him. Requiring the court to
suspend proceedings until the committee is able to understand the nature of the
proceedings and assist in the conduct of his ‗defense‘ adds minimal protection in this
context, especially when balanced against the administrative burdens involved.‖
(Angeletakis, supra, 5 Cal.App.4th at pp. 970-971, fn. omitted.)
       The Powell court read Angeletakis ―for the principle that an NGI committee who
is not mentally competent must act through counsel. If the person is not competent to
waive jury at the extension trial, his or her attorney may waive jury on his or her behalf.
That is the case here.‖ (Powell, supra, 114 Cal.App.4th at p. 1158, italics added.)
       Sections 1026.5, 2966, and 2972 use the same language to address the same
subject of jury waiver. The unanimity of interpretation in Otis, Montoya, and Powell
reflects the established rule that ordinarily ―[w]ords or phrases common to two statutes

                                             14
dealing with the same subject matter must be construed in pari materia to have the same
meaning.‖ (Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 116; People
v. Lamas (2007) 42 Cal.4th 516, 525.)
       We agree with those courts‘ view of the statutory language. It does not expressly
require a ―personal‖ waiver by the NGI. The term ―the person‖ in the phrase ―unless
waived by both the person and the prosecuting attorney‖ (§ 1026.5, subd. (b)(4)) does not
automatically or necessarily convey the notion that the only valid waiver is one
―personally‖ made by the NGI. Nor does the waiver provision clearly reflect a legislative
intent to impose such a limitation or preclude waivers by counsel on behalf of an NGI.
Finally, we too observe that the Legislature knows how to require a personal waiver, and
when it has done so, it has used clear and unambiguous language. (E.g., § 861, subd.
(a)(1) [requiring personal waiver of statutory right to continuous preliminary
examination]; § 977, subd. (b)(1) [same re waiver of presence at arraignment]; Welf. &
Inst. Code, § 1801.5 [same re right to a jury in trial to extend juvenile detention].)
       Furthermore, interpreting the language to exclude waivers by counsel results in
consequences that, in our view, are illogical and anomalous and therefore, to be avoided.
(People v. Martinez (1995) 11 Cal.4th 434, 448.)
       First, we note that for a variety of reasons, NGIs being treated in state hospitals
often choose not to appear until the day of trial, courts do not automatically order them
transported to court for every pretrial hearing, and counsel routinely waive the
defendants‘ presence at hearings which involve technical, procedural, and scheduling
matters. Such was the case here. Given these practical and logistical issues, counsel
must be able to act on the NGI‘s behalf in his or her absence. We cannot conceive of a
logical reason to prohibit counsel from waiving a statutory right to a jury trial at the
NGI‘s direction or with the NGI‘s express authorization but in his or her absence and to
instead compel the court to order the NGI‘s transportation and presence solely to secure a



                                              15
personal waiver. This is especially so because, as noted, counsel can waive a client‘s
more fundamental constitutional right to a jury in civil actions.
       We further note that competency to stand trial is not a prerequisite in a civil
proceeding to commit a person who is dangerous due to mental illness. (E.g., People v.
Angeletakis, supra, 5 Cal.App.4th at pp. 967-968 [NGI commitment]; People v. Moore,
supra, (2010) 50 Cal.4th at p. 829 [SVP commitment].) However, a waiver ―is the
‗intentional relinquishment or abandonment of a known right.‘ [Citations.]‖ (United
States v. Olano (1993) 507 U.S. 725, 733; Reid v. Google, Inc. (2010) 50 Cal.4th 512,
521.) To be valid, the waiver of a statutory right must be knowing, intelligent, and
voluntary. (In re Hannie (1970) 3 Cal.3d 520, 526-527; People v. Charles (1985) 171
Cal.App.3d 552, 559.) As Otis, Montoya, and Powell observe, some defendants, like the
defendants in those cases, 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 NGI may not be able to knowingly and
intelligently waive the right to a jury trial. If an NGI is incompetent, and in a particular
case counsel believes that a jury waiver is in the NGI‘s best interests, requiring that
defendant‘s personal waiver would undermine counsel‘s ability to protect the NGI‘s
interests by preventing counsel from waiving a jury on his or her behalf; and it would
mechanically require the court to conduct a jury trial or give the incompetent defendant
veto power over counsel‘s informed determination.7
       In our view, preventing counsel from waiving a jury at the NGI‘s direction or with
the NGI‘s consent and preventing counsel from doing so on behalf of an incompetent
NGI are anomalous consequences that would flow from interpreting the waiver provision

       7
         The anomaly of forcing an incompetent person to face a jury trial even when
counsel concludes that it would be against the person‘s best interests would not arise
from the personal waiver requirement in criminal cases because an incompetent
defendant cannot be tried at all. (§ 1368; see also Drope v. Missouri (1975) 420 U.S.
162, 172.)

                                             16
literally and restrictively to require a personal waiver. For that reason, we consider it
unreasonable to infer such a restrictive legislative intent from the statutory language. (Cf.
Mary K., supra, 234 Cal.App.3d at p. 271 [rejecting claim that counsel‘s waiver at
conservatee‘s direction was ineffective because personal waiver was required].)
       We point out that in construing statutes, ―[w]e may not under the guise of
construction, rewrite the law or give the words an effect different from the plain and
direct import of the terms used.‖ (California Fed. Savings & Loan Assn. v. City of Los
Angeles (1995) 11 Cal.4th 342, 349; accord Estate of Griswold (2001) 25 Cal.4th 904,
917.) Nor may we insert requirements or limitations that would cause the statute to
conform to a presumed intent that is not otherwise manifest in the existing statutory
language. (Citizens to Save California v. California Fair Political Practices Com. (2006)
145 Cal.App.4th 736, 747-748, Tain v. State Bd. of Chiropractic Examiners (2005) 130
Cal.App.4th 609, 617.)
       Given our analysis of the statutory language, policy considerations, and potential
consequences, we decline to insert a personal waiver requirement into the statute. Rather,
we conclude that the waiver provision permits counsel to waive a jury at an NGI‘s
direction, with an NGI‘s knowledge and consent, or, as in Powell, on behalf of an
incompetent NGI.8
       Defendant claims that section 1026.5, subdivision (b)(7) incorporates a personal
waiver requirement. That subdivision provides, in relevant part, that the defendant ―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.‖ (§ 1026.5, subd. (b)(7).)

       8
         In the latter situation, we believe that counsel may do so even over the objection
of an incompetent defendant. (E.g., Powell, supra, 114 Cal.App.4th at pp. 1156, 1158-
1159; cf. Otis, supra, 70 Cal.App.4th at pp. 1176-1177 [waiver over objection of
incompetent MDO]; Masterson, supra, 8 Cal.4th 965, 972 [waiver over objection of
defendant whose competence has been called into question].)

                                             17
       Every court that has analyzed the scope of this provision has concluded that it does
not incorporate all federal and state constitutional procedural rights. (Williams, supra,
233 Cal.App.3d at pp. 485-488; Powell, supra, 114 Cal.App.4th at pp. 1157-1158; People
v. Haynie (2004) 116 Cal.App.4th 1224, 1229-1230 (Haynie); People v. Lopez (2006)
137 Cal.App.4th 1099, 1108-1116 (Lopez); see People v. Henderson (1981) 117
Cal.App.3d 740, 746-748 (Henderson) [same conclusion re identical language in former
Welf. & Inst. Code, § 6316.2, subd. (e)]; cf. with Joshua D. v. Superior Court (2007) 157
Cal.App.4th 549, 560-561 [distinguishing § 1026.5, subd. (b)(7) from Welf. & Inst.
Code, § 1801.5, which grants juveniles ―all the rights guaranteed under the federal and
state Constitutions for criminal proceedings‖ in commitment extension trials (italics
added)].) On the other hand, courts agree that at a minimum section 1026.5, subdivision
(b)(7) incorporates those constitutionally provided procedural rights that bear a relevant
relationship to commitment proceedings. (Williams, supra, 233 Cal.App.3d at pp. 485-
488; Powell, supra,114 Cal.App.4th at pp. 1157-1158; Haynie, supra, 116 Cal.App.4th
1224, 1229-1230; Lopez, supra, 137 Cal.App.4th 1099, 1008-1116.)
       In Williams, supra, 233 Cal.App.3d 477, the court opined that the subdivision
simply ―codifies the application of constitutional protections to extension hearings
mandated by judicial decision. It does not extend the protection of constitutional
provisions which bear no relevant relationship to the proceedings. [Citation.] Thus, for
example, ex post facto principles are not applicable to extension proceedings. [Citation.]
Neither is the privilege against self-incrimination applicable to court-ordered psychiatric
examinations. [Citations.].‖ (Id. at p. 488; accord, Lopez, supra, 137 Cal.App.4th at
pp. 1111-1115; cf. Henderson, supra, 117 Cal.App.3d at pp. 746-748.) The court held
that the provision also did not incorporate constitutional protection against double
jeopardy. The court reasoned that double jeopardy prohibitions were inapplicable
because they are designed to protect a person from being criminally prosecuted more than
once for the same offense. Recommitment proceedings do not adjudicate an offense, thus

                                             18
the bar of double jeopardy has no meaningful application to extension proceedings.
(Williams, supra, 233 Cal.App.3d at pp. 485-486, 488.)
       In Powell, supra, 114 Cal.App.4th 1153, the court agreed with Williams that
section 1026.5, subdivision (b)(7) did not incorporate all constitutional procedural
safeguards and held that the subdivision did not incorporate the constitutional personal
waiver requirement in criminal cases. As discussed above, the court opined that an
incompetent NGI must act through counsel, and therefore, counsel may waive a jury on
his or her behalf. (Powell, supra, 114 Cal.App.4th at pp. 1158-1159.)
       We agree with Powell. The anomalous consequences that would result from
interpreting the waiver provision to require a personal waiver and exclude waivers by
counsel would likewise result from interpreting section 1026.5, subdivision (b)(7) to do
so. Section 1026.5, subdivision (b)(3) provides the right to counsel, a jury trial, and
criminal discovery. Subdivision (b)(7) reflects an intent to protect a defendant‘s interests
by providing additional procedural safeguards relevant to such proceedings. In our view,
it makes no sense to interpret the provision to prevent counsel from waiving a jury at the
NGI‘s direction or with his or her knowledge and consent. Similarly, it makes no sense
to interpret a provision designed to provide additional protection in a way that could
reduce counsel‘s ability to take action that would protect the interests of an NGI who is
delusional or otherwise incompetent.
       We agree with Powell for two other reasons. Even in a criminal prosecution,
where a defendant must personally waive the state and federal constitutional rights to a
jury trial, there is no requirement that a statutory right to a jury determination of certain
issues be personally waived. (People v. French (2008) 43 Cal.4th 36, 46-47; see
Montoya, supra, 86 Cal.App.4th at p. 829.) Thus, for example, a defendant need not
personally waive the statutory right to a jury on prior prison term allegations (People v.
Vera (1997) 15 Cal.4th 269, 278, abrogated on another point in Apprendi v. New Jersey
(2000) 530 U.S. 466.); the statutory right to have jury determine sentence enhancement

                                              19
allegations (People v. Wims (1995) 10 Cal.4th 293, 309, overruled on another point in
People v. Sengpadychith (2001) 26 Cal.4th 316, 326); the statutory right to have jury
determine competence to stand trial on criminal charges (Masterson, supra, 8 Cal.4th at
p. 972); or the statutory right to have same jury determine current charges and prior
allegations (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5). (See also People v.
Hinton (2006) 37 Cal.4th at 839, 874-875 [statutory right to a separate proceeding on the
prior-murder-conviction special-circumstance allegation].)
       With this in mind, we do not find a clear legislative intent to attach the
constitutional personal waiver requirement to the statutory right to jury trial.
       Second, section 1026.5, subdivision (b)(4) specifically deals with the waiver of a
jury trial and it does not expressly require a personal waiver or prohibit a waiver by
counsel. Section 1026.5, subdivision (b)(7), on the other hand, is a general statute and
does not specifically refer to any particular rights or the waiver of rights.
       It is a settled rule that ―[a] specific provision relating to a particular subject will
govern a general provision, even though the general provision standing alone would be
broad enough to include the subject to which the specific provision relates. [Citation.]‖
(People v. Tanner (1979) 24 Cal.3d 514, 521.) Under the circumstances, we doubt the
Legislature intended the general subdivision (b)(7) to add by implication a personal
waiver requirement that it did not expressly include in the specific subdivision dealing
with waiver.
       Defendant urges us not to follow Powell. He notes that in Haynie, supra, 116
Cal.App.4th 1224, the court rejected Williams’ view, reiterated in Powell, that
section 1026.5, subdivision (b)(7) merely codified certain judicially recognized
constitutional protections. (Haynie, supra, at pp. 1229-1230.) Defendant argues that




                                               20
Haynie‘s disagreement on this point invalidates Powell‘s conclusion that the subdivision
does not incorporate a personal waiver requirement.9
       Defendant‘s reliance on Haynie is misplaced. Notwithstanding its disagreement
on the ―codification‖ point, Haynie agreed with Williams that the subdivision did not
incorporate all constitutional protections. More importantly, the Haynie court agreed
with Powell that the subdivision did not incorporate the personal waiver requirement.
(Haynie, supra, 116 Cal.App.4th at pp. 1229-1230.) Thus, Haynie does not undermine
Powell’s conclusion.
       In sum, we conclude that neither subdivision (b)(4) nor (b)(7) in section 1026.5
require a personal jury waiver by an NGI. Rather, counsel also may waive a jury trial at
an NGI‘s direction, with his or her consent, or on behalf of an NGI who is not sufficiently
competent to do so. Accordingly, we reject defendant‘s claim that the court erred in not
obtaining his personal waiver and accepting counsel‘s waiver on his behalf.
       Even if we assume that section 1026.5, subdivision (b) required a personal waiver,
the court‘s failure to obtain defendant‘s waiver would not compel reversal. It is settled

       9
          In Williams, the court explained that ―Penal Code section 1026.5 was enacted in
1979, as emergency legislation in response to the California Supreme Courts decision of
In re Moye [(1978) 22 Cal.3d 457]. Prior to In re Moye, individuals committed to state
hospitals after having been acquitted by reason of insanity were committed for an
indefinite period of time. In re Moye concluded that equal protection principles
mandated that such individuals be released after they had been committed for a period of
time equal to the maximum state prison sentence which they could have received for the
underlying offense. Faced with the imminent release of many potentially dangerous
individuals, the legislature adopted Penal Code section 1026.5 to provide for a maximum
term of commitment, together with the possibility of successive two-year recommitments
for dangerous individuals. At the same time, the statutes relating to mentally disordered
sex offenders (MDSO) were amended to provide for virtually identical procedures.‖
(Williams, supra, 233 Cal.App.3d at pp. 487-488, fn. omitted.)
       We have taken judicial notice of the legislative history of section 1026.5, which
confirms Williams’ summary. (See Evid. Code, § 452, subd. (c).)
       We further note that in Lopez, supra, 137 Cal.App.3d 1099, the court expanded on
the legislative history of section 1026.5 as well as Williams’ view that it merely codified
judicial decisions.

                                            21
that the erroneous denial of a statutory right to a jury trial is subject to harmless-error
review under the Watson test. (People v. Epps (2001) 25 Cal.4th 19, 29.) Our analysis
and conclusion that the court‘s failure to advise was harmless applies with equal force to
the court‘s allegedly erroneous failure to obtain defendant‘s personal waiver. Simply put,
given the evidence presented at trial, we do not find it reasonably probable the result
would have been more favorable to defendant had the court conducted a jury trial. (E.g.,
People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [denial of statutory right to MDO
trial harmless].)10
       Defendant contends that depriving him the right to personally waive a jury trial
denied him equal protection in violation of the Fourteenth Amendment. He notes that
under the extended commitment scheme in Welfare and Institutions Code section 1800 et
seq., minors committed to the Youth Authority (YA) may have their commitment
extended if they are deemed dangerous due to mental illness. (See In re Howard N.
(2005) 35 Cal.4th 117, 122, 126.) Under that scheme, a person is entitled to jury trial on
a petition to extend the commitment, and ―the trial shall be by jury unless the right to a
jury trial is personally waived by the person, after he or she has been fully advised of the
constitutional rights being waived . . . .‖ (Welf. & Inst. Code, § 1801.5, italics added.)
       Defendant claims that NGIs facing extended commitments because they are
dangerous due to mental illness are similarly situated to youthful offenders facing
extensions of their commitments for the same reason. He argues that despite being
similarly situated, NGIs are treated disparately in that ―[they] are not expressly afforded
the right to personally waive jury trial‖ and ―courts have interpreted [section 1026.5] to
preclude an absolute right to personally waive a jury trial.‖


       10
           This is so even if a personal waiver became part of the statute by incorporation
under section 1026.5, subdivision (b)(7). Although the procedural safeguard itself would
apply, its guarantee would be statutory, not constitutional, and therefore, the Watson test
would apply.

                                              22
       Although both juveniles and NGIs may face extended commitments because they
are dangerous due to mental illness, they are not similarly situated for purposes of an
equal protection analysis.
       In In re Lemanuel C. (2007) 41 Cal.4th 33 (Lemanuel C.), the California Supreme
Court acknowledged that juvenile offenders and adult SVPs and MDOs may have their
commitments extended because they have a mental disorder that renders them currently
dangerous. However, the court concluded that juvenile offenders and adult SVPs and
MDOs are not similarly situated because the adult commitment schemes were enacted
with different purposes in mind than the juvenile scheme. (Id. at p. 48.) The court
explained that the SVP Act ― ‗narrowly targets ―a small but extremely dangerous group
of sexually violent predators that have diagnosable mental disorders [who] can be
identified while they are incarcerated.‖ [Citation.]‘ [Citation.] Similarly, the [MDO
Act] narrowly targets adult prisoners whose ‗severe mental disorder was one of the
causes of or was an aggravating factor in the commission of the crime for which the
prisoner was sentenced to prison.‘ [Citation.]‖ (Ibid.) Therefore, adults committed
under the two schemes are labeled ― ‗sexually violent predators‘ or ‗mentally disordered
offenders‘ based, in part, upon the nature of their prior convictions in addition to their
potential for future dangerousness to others.‖ (Ibid.) The juvenile scheme, in contrast,
―broadly encompasses all youthful offenders committed to the Youth Authority who, if
discharged from that facility, ‗would be physically dangerous to the public‘ because of
their mental deficiency, disorder, or abnormality. [Citation.] [The statute] does not
stigmatize a youthful offender whose detention is extended under its provisions by
labeling him or her a certain type of offender. Significantly, [the scheme] does not
narrowly target specific youthful offenders in the Youth Authority based upon the nature
of their sustained allegations that resulted in a Youth Authority commitment.‖ (Ibid.)
For this reason, the court opined that the additional findings that make it harder to
commit an adult had no application in juvenile extended detention scheme. Simply put,

                                             23
―[y]outh [a]uthority wards are distinctly different from more serious adult offenders who
have committed violent or sexually violent crimes.‖ (Ibid.)
       The court concluded by noting that ―[t]he Legislature may ‗ ―adopt more than one
procedure for isolating, treating, and restraining dangerous persons; and differences will
be upheld if justified.‖ [Citation.]‘ [Citation.] As the Court of Appeal in this case
appropriately recognized, ‗[t]he mere fact that the Legislature has made it more difficult
to commit a more serious, adult offender—especially one who faces the stigma of being
declared an SVP [or MDO]—does not give rise to an equal protection violation.‘ ‖
(Lemanuel C., supra, 41 Cal.4th. at p. 49.)
       A similar analysis applies here. The adult NGI scheme applies only to persons
who have been found to be insane. Moreover, such defendants are stigmatized by that
determination and by their involuntary commitment to a state hospital for treatment of
their mental disorders. In contrast, the juvenile scheme applies to all youthful offenders,
their initial commitment is not based on a finding of mental illness or insanity, and that
commitment does not carry the stigma of being deemed insane or being committed for
mental health treatment.
       For these reasons, NGIs who have been found insane and committed for treatment
are distinctly different from YA wards, and the more restrictive waiver provision in the
juvenile scheme has no application. Rather, the distinction justifies a broader waiver
provision that not only contemplates personal waivers by NGIs but also permits waivers
by counsel on their behalf.
       In short, the difference in the waiver provisions under the juvenile and NGI
schemes does not give rise to an equal protection violation.




                                              24
                                   VII. DISPOSITION
       The order extending defendant‘s commitment is affirmed.




                                          ______________________________________
                                                     RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           DUFFY, J.




People v. Mortimer
H037530


       
         Retired Associate Justice of the Court of Appeal, Sixth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.

                                            25
Trial Court:                                  Santa Clara County
                                              Superior Court No.: 190802


Trial Judge:                                  The Honorable Gilbert T. Brown



Attorney for Defendant and Appellant          Julia J. Spikes
Peter Freiderich Mortimer:                    under appointment by the Court of
                                              Appeal for Appellant



Attorneys for Plaintiff and Respondent        Kamala D. Harris
The People:                                   Attorney General

                                              Dane R. Gillette,
                                              Chief Assistant Attorney General

                                              Gerald A. Engler,
                                              Senior Assistant Attorney General

                                              Laurence K. Sullivan,
                                              Supervising Deputy Attorney General

                                              Rene A. Chacon,
                                              Deputy Attorney General




People v. Mortimer
H037530




                                         26
