Filed 4/25/13
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H037195
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C9945301)

        v.

MAXWELL MARTIN FUQUAY,

        Defendant and Appellant.



                               I. STATEMENT OF THE CASE
        In 2000, defendant Maxwell Martin Fuquay was found not guilty by reason of
insanity (NGI) of battery with serious bodily injury, and he was committed to a state
hospital. (Pen. Code, §§ 242, 243, subd. (d), 1026.5, subd. (a).)1 Thereafter, his
commitment was extended four times. (§ 1026.5, subd. (b).) On March 21, 2011, before
the last extension expired, the Santa Clara County District Attorney filed a petition to
extend it again. At a pretrial hearing on July 8, 2011, defense counsel waived a jury. On
July 28, 2011, after a bench trial, the court sustained the petition and extended
defendant‘s commitment to September 10, 2013.




        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.
       On appeal from the extension order, defendant claims that 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. Shakeel Khan, defendant‘s treating psychiatrist at Napa State Hospital (NSH),
testified that defendant suffered from paranoid schizophrenia and poly-substance
dependence. He said that defendant was currently exhibiting symptoms of the disorder.
For this reason, he opined that defendant was currently dangerous and agreed with the
NSH recommendation that defendant‘s commitment be extended.2 Dr. Khan reported
that during the past two years, defendant had committed six assaults on fellow patients,
most recently in February 2011. He explained that the assaults stemmed at times from
defendant‘s delusional belief that he was being raped by other patients and being targeted
because of his race and sexual orientation.
       Dr. Khan said that defendant‘s ability to recognize his symptoms and what triggers
them had improved; and when he was not feeling paranoid, defendant was approachable
and complied with his treatment program. Nevertheless, Dr. Khan testified that
defendant remained delusional, and as a result lacked insight into his mental illness. He
said that defendant‘s treatment reflected a cyclical pattern: he would participate in
treatment and work well for a time; as he felt better, he would decrease his medication;
he would stop his treatment; and then his symptoms would reappear. Recently, Dr. Khan
had recommended a certain medication, but defendant refused to take it.
       Defendant admitted that he suffered from paranoid schizophrenia. He said he
attended Narcotics Anonymous meetings but denied having a substance abuse problem.
Defendant claimed that recently he had been raped by other patients. He did not believe

       2
        Concerning the commitment offense, Dr. Khan testified that in 1999, while
defendant was hospitalized, he attacked a psychiatric nurse without provocation.

                                               2
that it was a delusion even though hospital staff found no evidence of a sexual assault.
Defendant explained that not all of his fights with other patients were his fault. He said
that some were racially motivated. Defendant said he would take the drug recommended
by Dr. Khan, and, if released, he would take his medication and continue his psychiatric
treatment.
       After hearing this testimony, the court found that defendant represented a
substantial danger of harm to others due to a mental disease, defect, or disorder, sustained
the petition, and extended defendant‘s commitment.
                       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 may 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 . . . 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).)3
       3
          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

                                               3
                                     IV. CONTENTIONS
       Defendant contends the court erred in failing to advise him of his right to a jury
trial, accepting counsel‘s waiver, and conducting a bench trial without obtaining his
personal and express waiver. He claims the errors violated his statutory rights and his
state and federal constitutional rights to due process and equal protection. The Attorney
General argues that the court properly conducted bench trial because as a rule, counsel
has exclusive authority to waive a jury trial even over an NGI‘s objection.
                                  V. FAILURE TO ADVISE4
       As noted, subdivision (b)(3) requires a jury advisement when the petition is filed.
The record reflects that the court did not directly advise defendant at the first hearing
after the petition was filed; nor did the court do so at any time thereafter. This is
understandable because when the petition was filed, defendant was at NSH; thereafter,
defense counsel waived defendant‘s presence at all of the pretrial proceedings; the court
did not order defendant‘s appearance for the purpose of an advisement; and defendant did
not appear until the day of the bench trial. However, as we shall explain, 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


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
           Hereafter, all unspecified subdivision references are to section 1026.5.

                                               4
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
expressly waived it. 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.) 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 (Mary K.) [where no evidence to the
contrary, court may presume counsel discussed jury waiver with client before waiving on
client‘s behalf].)
       Next, the record does not show that defendant was unaware of his right. On the
contrary, it suggests otherwise. This was defendant‘s fifth extension trial. Moreover, the
record reveals that when the district attorney sought the fourth extension, defendant
waived his rights and agreed to the extension. In doing so, he signed a waiver form in



                                               5
which he stated that he knowingly and voluntarily waived his rights, including his right to
a jury trial, after having conferred with counsel.
       The record also does not show that defendant wanted a jury trial on the instant
petition or that he did not authorize or agree to counsel‘s waiver or that he opposed or
would have opposed counsel‘s waiver. ―As a general rule, a stipulation of the attorney
will be presumed to have been authorized by the client, as well in order to uphold the
action of the court, as for the protection of the other party to the stipulation; but when the
adverse party, as well as the court, is aware the attorney is acting in direct opposition to
his client‘s instructions or wishes, the reason of the rule ceases, and the court ought not to
act upon the stipulation, nor can the adverse party claim the right to enforce a judgment
rendered by reason thereof.‖ (Knowlton v. Mackenzie (1895) 110 Cal. 183, 188.)
       Here, despite having been previously advised of his right to a jury trial and
knowingly and intelligently waiving that right, defendant appeared in court and
participated in the bench trial without objection or complaint. Under the circumstances,
the record provides no basis to infer that defendant was unaware of his right to a jury trial
or wanted a jury trial or that counsel overrode defendant‘s wish for a jury trial. Any such
inferences would be speculation on our part.5
       Last, we note that a single opinion by a psychiatric expert that the defendant is
currently dangerous due to a mental disorder can constitute substantial evidence to

       5
          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 here defendant has not sought habeas relief.

                                              6
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. Khan‘s testimony constituted overwhelming evidence to support a finding that
defendant posed an unreasonable risk of harm to others due to his mental disorder.
Defendant presented no opposing expert testimony. He did not impeach Dr. Khan in any
respect. And he does not claim that Dr. Khan‘s opinion was speculative or that his
testimony does not constitute substantial evidence. Under the circumstances, we do not
find it reasonably probable defendant would have obtained a more favorable result had
the court expressly advised him of his right to a jury trial on the record. (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].)6
                           IV. VALIDITY OF THE BENCH TRIAL
                                   A. Personal Waiver
       Defendant notes that subdivision (b)(3) requires that the court to advise ―the
person named in the petition‖ of the right to a jury trial; and subdivision (b)(4) requires
the court to conduct a jury trial ―unless waived by both the person and the prosecuting
attorney.‖ (Italics added.) According to defendant, these provisions mean that the right
to a jury trial is ―personal to the defendant,‖ and therefore, the phrase ―the person,‖
especially in subdivision (b)(4), refers only to the defendant. Thus, he argues that the
court must conduct a jury trial unless the defendant personally waives a jury. In other



       6
          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 read and sign. (See People v.
Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form proper substitute for judicial
advisement].)

                                              7
words, only the defendant can waive a jury trial, and, conversely, a waiver by counsel is
not valid or effective.
       In People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), the court dealt with section
2966, subdivision (b), which requires a jury trial when a person challenges certification
as a mentally disordered offender (MDO) 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.)
       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. 177, italics added.)
       In People v. Montoya (2001) 86 Cal.App.4th 825 (Montoya), 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.) In
upholding counsel‘s waiver, the court followed Otis. It 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

                                             8
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
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 People v. Powell (2004) 114 Cal.App.4th 1153, 1156 (Powell),
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 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

                                              9
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,
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 [same re trial on SVP commitment].) 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.)

                                             10
       Sections 1026.5, 2966, and 2972 use the same language to address the same
subject. The unanimity of interpretation in Otis, Montoya, and Powell reflects the
established rule that ordinarily ―[w]ords or phrases common to two statutes 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‖ 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 in doing 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.)
       First, we note that for a variety of reasons, NGIs being treated for mental illness 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 NGIs‘ presence at those hearings that often 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

                                              11
to a jury trial at the NGI‘s direction or with the NGI‘s express authorization but in his or
her absence. Doing so would compel the court to order the NGI‘s transportation and
presence solely to secure a personal waiver. This is absurd. With a client‘s
authorization, counsel can waive the more fundamental state constitutional right to a jury
trial in civil actions. (Cal. Const., art. I, § 16 [right to jury trial]; see Code of Civ. Proc, §
631 [prescribing types of waiver]; Zurich General Acc. & Liability Ins. Co. v. Kinsler
(1938) 12 Cal.2d 98, 105[waiver by party or counsel] (Zurich), 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 also Code Civ. Proc., § 283, subd. (1)
[counsel has authority to bind client in any of the steps of an action].)
       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, 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 rational decisions. 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 prevent a waiver by counsel and thereby undermine counsel‘s ability to



                                               12
protect the NGI‘s interests. Rather, it would mechanically require the court to conduct a
jury trial or give the incompetent NGI veto power over counsel‘s informed determination.
       In our view, preventing counsel from waiving a jury at an NGI‘s direction or with
an 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
literally 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].)
       Defendant argues that subdivision (b)(7) implicitly includes a personal waiver
requirement. That subdivision provides, ―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.‖
       We acknowledge that the California and federal constitutions guarantee the right
to a jury trial in criminal proceedings, and that right can only be waived personally by the
defendant. (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, every
court that has analyzed the scope of subdivision (b)(7) 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)].)

                                             13
       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
the bar of double jeopardy ha[s] no meaningful application to extension proceedings.
(Williams, supra, 233 Cal.App.3d at pp. 485-486, 488.)7



       7
          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.

                                            14
       Powell, supra, 114 Cal.App.4th 1153 is again on point. There, the court agreed
with Williams that subdivision (b)(7) does not incorporate all constitutional procedural
safeguards and held it did not include the personal waiver requirement applicable 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 absurd and anomalous consequences that would result
from interpreting subdivision (b)(4) to require a personal waiver and exclude waivers by
counsel would likewise result from interpreting (b)(7) to do so. Indeed, 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 the 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
allegations (People v. Wims (1995) 10 Cal.4th 293, 309, overruled on another point in
People v. Sengpadyschith (2001) 26 Cal.4th 316,326); the statutory right to have jury

                                              15
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].)
       Second, 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.
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 the waiver of a jury trial.8
       In sum, when 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




       8
         Even if subdivision (b)(7) incorporated the personal waiver requirement
applicable in criminal cases, the requirement, it would still represent only a statutory
requirement, not a constitutionally compelled requirement, and therefore, any statutory
violation would be subject to review under the Watson test for harmless error.

                                               16
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 section 1026.5.
Rather, we conclude that under subdivision (b)(4), counsel may 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.9
       Defendant challenges the analysis in Powell. He notes that in rejecting a personal
waiver requirement, the court also reasoned that ―an 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.‖ (Powell, supra, 114 Cal.App.4th at p. 1157.) Defendant
argues that this reasoning led the Powell court to conclude, wrongly, that in commitment
cases, counsel has blanket authority to waive a jury trial even over the defendant‘s
objection. Indeed, the Attorney General asserts that Powell and a ―well-established line
of authority‖ establish that counsel has such exclusive control over the jury decision.
       Although the waiver provision is broad enough to permit waivers by counsel, it
does not necessarily follow, as the Attorney General asserts, that it gives counsel
exclusive control. To determine whether it does, we return to subdivision (b)(4).
                            B. Counsel’s Exclusive Control
       The statutory language ―unless waived by both the person and the prosecuting
attorney‖ does not expressly confer exclusive control; nor does it expressly or implicitly
bar NGI‘s from controlling the decision to have a bench or jury trial. Moreover, the
waiver provision must be read together with the advisement provision (see Los Angeles

       9
         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
County Metropolitan Transp. Authority v. Alameda Produce Market, LLC (2011) 52
Cal.4th 1100, 1106-1107), and together, they do not reasonably suggest a legislative
intent to confer exclusive control or bar NGIs from making the decision. On the
contrary, the two provisions contemplate that NGIs can make the decision and expressly
provides for them to do so.
       Specifically, subdivision (b)(3) requires the court to advise ―the person named in
the petition . . . of the right to a jury trial.‖ This language imposes a mandatory duty on
the court.10 (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542
[―shall‖ typically construed as mandatory; e.g., People v. Tindall (2000) 24 Cal.4th 767,
772.) It reflects a legislative intent to judicially ensure that ―the person‖ knows that he or
she has the right to a jury trial.
       We presume that the Legislature intended the advisement to perform a meaningful
and useful function. (See Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 233.) The
purpose and function appear in the waiver provision, which requires a jury trial unless
waived by ―the person.‖ Although, subdivision (b)(4) must be construed to permit a
waiver by ―the person‘s‖ attorney, the phrase unambiguously refers to a waiver by the
NGI. Thus, the purpose and function of the required advisement are self-evident: to
inform the NGI of the right to a jury trial so that he or she can decide whether to waive it.
(See People v. Barrett (2012) 54 Cal.4th 1081, 1109 (Barrett) [a jury advisement enables
person to comprehend and control decision to request a jury trial]; People v. Koontz
(2002) 27 Cal.4th 1041, 1071 [purpose of standardized Faretta advisements is ―to ensure
a clear record of a knowing and voluntary waiver of counsel‖]; § 1016.5, subd. (d)
[required advisement of potential immigration consequences intended to inform decision
of whether to waive rights and enter plea].)

       10
          We mean ―mandatory‖ in its obligatory, rather than jurisdictional, sense as in a
required, rather than discretionary, action. (See Morris v. County of Marin (1977) 18
Cal.3d 901, 908 [discussing distinction].)

                                               18
       We observe 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.‖ Moreover, if that had been the Legislature‘s intent, an
advisement would serve no practical or meaningful function, and there would have been
no need to make the advisement mandatory. For this reason, it is not reasonable to
interpret the provision to confer exclusive control because it would effectively render the
advisement provision meaningless, statutory surplusage. (See McCarther v. Pacific
Telesis Group (2010) 48 Cal.4th 104, 110 [courts should avoid interpretation rendering
part of the instrument surplusage].)
       In short, just as we decline to limit the phrase ―unless waived by the person‖ by
inferring that only an NGI can waive a jury trial so too we decline to limit the phrase by
inferring that counsel has exclusive control over the decision.
       We acknowledge the nonstatutory, judicially recognized rule that ―in both civil
and criminal matters, a party‘s attorney has general authority to control the procedural
aspects of the litigation and, indeed, to bind the client in these matters‖; in other words,
―counsel is captain of the ship.‖ (In re Horton (1991) 54 Cal.3d 82, 94, 95; Blanton v.
Womancare, Inc. (1985) 38 Cal.3d 396, 403-404.) We further note that in upholding
counsel‘s waiver in Otis, the court cited Zurich, supra, 12 Cal.2d 98 for the general
proposition that ―in civil cases, an attorney has ‗complete charge and supervision‘ to
waive a jury.‖ (Otis, supra, 70 Cal.App.4th at p. 1176.) However, we conclude that the
general ―captain of the ship‖ rule in civil litigation does not govern whether counsel has
exclusive authority to waive a jury in NGI proceedings.



                                              19
       In Zurich, supra, 12 Cal.2d 98, the court held that counsel‘s insistence on a jury
trial did not constitute good cause for firing him and thus bar him from later seeking a
share of her judgment. Citing the general rule, the court concluded that the attorney had
the right and authority to insist on a jury trial. (Id. at pp. 105-106.)
       Although Zurich did not involve a jury waiver, the court cited a number of cases
and authorities, including Shores Co. v. Iowa Chemical Co. (1936) 222 Iowa 347 [268
N.W. 581] (Iowa). There, the defendant claimed that counsel lacked the authority to
waive a jury by stipulation. However, the court explained that ordinarily counsel has
implicit authority to enter binding stipulations on procedural matters. It then noted that
the defendant was aware of counsel‘s waiver at the time, he had made no effort to set it
aside, and he did not seek a jury trial until long after the stipulation had been entered.
Given these circumstances, the court held that the defendant had failed to show that
counsel lacked authority to waive a jury trial. (Id. at p. 583.)
       Although Zurich and the Iowa case recognized counsel‘s authority to request or
waive a jury in typical civil litigation, neither case involved a ―special proceeding‖ in
which the state seeks to involuntarily commit a person to a state hospital for treatment.
Moreover, neither case addressed whether counsel had such authority in a ―special
proceeding‖; and neither case involved a statute that expressly required a jury advisement
and jury trial unless waived by the person so advised.
       ― ‗It is axiomatic,‘ of course, ‗that cases are not authority for propositions not
considered.‘ ‖ (People v. Jones (1995) 11 Cal.4th 118, 123, fn. 2, quoting People v.
Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.) Thus, these cases do not support a conclusion
that in NGI proceedings, the ―captain of the ship‖ rule gives counsel exclusive control
over whether to waive a jury trial. Insofar as Otis appears to imply as much, we disagree.
       Masterson, supra, 8 Cal.4th 965 is a much more pertinent case on the issue
because it involved a special proceeding to determine whether the defendant was
competent to stand trial on criminal charges. (§§ 1368-1370.) There, counsel stipulated

                                               20
to an 11-person jury over the defendant‘s objection. In upholding counsel‘s authority to
do so, the court more broadly concluded that in competency trials, counsel has exclusive
control over the jury issue. The court noted the ―captain of the ship‖ rule but did not base
its conclusion on it. (Masterson, supra, 8 Cal.4th at pp. 969-970.) Rather, the court
expressly based its conclusion on ―an examination of the nature of competency
proceedings as well as the jury trial right at issue.‖ (Id. at p. 971.)
       The court explained, ―The sole purpose of a competency proceeding is to
determine the defendant‘s present mental competence, i.e., whether the defendant is able
to understand the nature of the criminal proceedings and to assist counsel in a rational
manner. [Citations.] Because of this, the defendant necessarily plays a lesser personal
role in the proceeding than in a trial of guilt. How can a person whose competence is in
doubt make basic decisions regarding the conduct of a proceeding to determine that very
question?‖ (Masterson, supra, 8 Cal.4th at p. 971.)
       The court concluded that when doubt is raised about a defendant‘s competence,
the defendant is assumed to be unable to act in his or her own best interests. For that
reason, the defendant must act through counsel, and counsel has exclusive control over
the conduct of the proceedings, including whether to request a jury trial. (Masterson,
supra, 8 Cal.4th at pp. 971, 973; see People v. Hill (1967) 67 Cal.2d 105, 114, fn. 4 [no
error in failing to advise defendant of right to jury in competence trial because counsel
decides whether to have a jury trial].)
       Under Masterson, therefore, if counsel has exclusive control in NGI proceedings,
counsel derives it not so much from the ―captain of the ship‖ rule but from the nature of
those proceedings and the jury right at issue.




                                               21
       More recently, in Barrett, supra, 54 Cal.4th 1081, the Supreme Court provided
further guidance when it decided whether counsel had exclusive control in a proceeding
to commit a mentally retarded person who is dangerous. (Welf. & Inst. Code, § 6500.) 11
       In Barrett, the court conducted a bench trial and committed the defendant.
(Barrett, supra, 54 Cal.4th at pp. 1088-1092.) On appeal, she claimed that the federal
Constitution provided the right to a jury trial and required a jury advisement and personal
waiver. (Id. at p. 1093.) Although the statute did not provide the right to a jury trial, the
Supreme Court agreed that constitutional considerations warranted recognizing an
implied statutory right to a jury trial. (Id. at pp. 1097, 1100.) However, the court rejected
advisement and waiver requirements because it found that counsel had exclusive control
over whether to have a jury trial. In reaching this conclusion, the court relied primarily
on Masterson.
       The court explained that mental retardation is a developmental disability that
originates when an individual is a minor and continues, or can be expected to continue,
indefinitely, and constitutes a ― ‗substantial disability for that individual.‘ ‖ (Barrett,
supra, 54 Cal.4th at p. 1103.) Moreover, for purposes of a commitment under section
6500, mental retardation involves ― ‗ ― ‗significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior,‘ and appearing in the
‗developmental period.‘ ‖ ‘ [Citations.]‖ (Ibid., italics in Barrett) The court opined that
―the significant cognitive and intellectual deficits that the condition entails, which appear

       11
           The Barrett court noted that at all pertinent times, the statutory scheme had
used the terms ―mentally retarded‖ and ―mental retardation.‖ The court acknowledged
that subsequent ―legislative enactments and proposed amendments replace references to
‗mental retardation‘ under section 6500 et seq. with such terms as ‗developmental
disability‘ and ‗intellectual disability.‘ [Citation.]‖ (Barrett, supra, 54 Cal.4th at
p. 1088, fn. 2.) However, to avoid confusion, the court used the original terminology.
        To avoid confusion when discussing Barrett and its application, we shall also use
that outmoded terminology.
        At our request, the parties briefed the impact of Barrett, if any, on the issues raised
in this case.

                                              22
early in life and never recede, affect the ability to ‗make basic decisions‘ regarding the
conduct of the section 6500 proceeding. [Citation.] Such an individual thus plays a
limited ‗personal role‘ in the case, and must rely on counsel to decide all tactical and
procedural matters, such as whether to exercise the jury trial right.‖ (Id. at pp. 1103-
1104.)
         The court rejected a claim that this approach ―improperly ‗presumes‘ that a person
is mentally retarded before the fact finder has decided the issue.‖ (Barrett, supra, 54
Cal.4th at p. 1104.) The court noted that a commitment petition is filed at the request of
―a responsible and interested party (e.g., parent, conservator, correctional or probation
official, or regional center director), who presents specific information (reasons) for
supposing that the person is mentally retarded and dangerous, in need of treatment, and
eligible for commitment. The significance of this request, and its role in providing a
foundation for the petition and commitment process, is underscored by the verification
requirement. (§ 6502.) . . . [¶] Second, where a section 6500 petition is filed, the trial
court is entitled to a written report prepared by, or at the behest of, the director of the
regional center, following an examination of the alleged mentally retarded person.
(§ 6504.5.) Regional centers specialize in assessing and assisting mentally retarded and
other developmentally disabled persons on an individual basis. [Citation.] Thus, the
regional center report obviously serves as a professional pretrial evaluation of the
person‘s history, condition, and behavior, and includes informed recommendations on
treatment and placement, including any interim placement pending the
hearing. . . . [¶] In light of these principles and authorities, we conclude that someone
like Barrett, who is alleged to be mentally retarded and dangerous under section 6500, is
not in a position to personally assert or waive the right to jury trial, to sufficiently
comprehend the jury trial advisement, or to override the views of counsel on the subject.
Sole control over such tactical and procedural decisions rests with counsel, whether or



                                               23
not the client has been consulted or objects.‖ (Barrett, supra, 54 Cal.4th at pp. 1104-
1105.)
         Masterson and Barrett establish that in certain types of commitment proceedings,
the defendant‘s alleged mental state—e.g., incompetency and mental retardation—
disables him or her from making reasoned decisions about what is in his or her best
interests, including whether to request or waive a jury trial. In other words, it is
reasonable to categorically assume that such defendants lack the capacity to make a
rational decision about a jury trial. For that reason, they must act through counsel, and
counsel has exclusive control over the jury issue.
         The Attorney General relies on Masterson to support her claim that counsel has
exclusive control in NGI proceedings. Presumably, the argument is that, like defendants
whose competence has been questioned or persons diagnosed with mental retardation,
NGIs are categorically unable to make reasoned decisions, and therefore counsel must be
able to decide the jury issue. We reject this argument and find the Attorney General‘s
reliance on Masterson to be misplaced.
         First, there are significant differences between an NGI extension trial and the
proceedings in Masterson and Barrett. The purpose of a competency trial is to resolve
actual doubt concerning the defendant‘s mental capacity to understand the proceedings
and cooperate with and assist counsel. (People v. Lewis (2008) 43 Cal.4th 415, 524.)
Thus, as Masterson holds, once a defendant‘s competency is doubted, counsel has control
over whether to request a jury for the competency trial.
         The proceeding in Barrett did not involve a determination of competency but
whether the mentally retarded defendant was dangerous. However, as Barrett explains,
mental retardation in this context represents a permanent developmental disability
involving significant cognitive and intellectual deficits. For this reason, the court treated
the allegations and supporting documentation that a person is mentally retarded like
doubt concerning a defendant‘s competency to stand trial. In other words, the mentality

                                              24
of persons in both contexts is comparable, both may be assumed to be incapable of
determining their own best interests, and therefore the scope of counsel‘s authority
should be the same.
       Unlike a competency trial, an NGI extension trial does not involve a determination
of competency. Its purpose is to determine whether an NGI is currently dangerous due to
a severe mental disorder that is not in remission. (§ 2970.) To be sure, that is the same
purpose of a trial to commit a dangerous mentally retarded person. However, the
similarity of purpose does not mean that the scope of counsel‘s authority should be the
same because the mental capacity of the persons in each context is different. More
specifically, although it may be reasonable to categorically assume that mentally retarded
persons lack the capacity to determine their own best interests, it is not reasonable to
make that categorical assumption about NGIs. Barrett makes this precise point.
       Concerning the capacity to function in a competent manner, and specifically to
comprehend a jury advisement and rationally control the jury decision, the Barrett court
distinguished those diagnosed with a mental disease, defect, or disorder from those
diagnosed with mental retardation.
       In Barrett, the defendant claimed that the constitution required a jury advisement
and personal waiver under principles of equal protection. She noted that patients facing
an extended commitment under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst.
Code, § 5000 et seq.) because they posed a danger due to their mental disease, defect, or
disorder rendered were statutorily entitled to such procedural safeguards. (Barrett, supra,
54 Cal.4th at p. 1106; see Welf. & Inst. Code, § 5302.) Because she and LPS patients
were similarly situated, she claimed the right to those safeguards.
       In rejecting her claim, the court explained that persons subject to commitment
under the two schemes are not ―similarly situated as to the ancillary purpose that an
express jury trial advisement, and an express personal waiver, purportedly serve,‖ namely
enabling the person to comprehend and control the decision to waive a jury trial.

                                             25
(Barrett, supra, 54 Cal.4th at p. 1108.) What distinguished persons under the two
schemes was their ―distinct ‗mentality‘ ‖—i.e., mental retardation versus mental illness.
(Ibid.) The court explained that ―[m]ental illness and related disorders are said to be
conditions that may arise suddenly and, for the first time, in adulthood. [Citation.] The
LPS Act process itself assumes that the need for treatment may be temporary, and that
disabling mental disorders may be intermittent or short-lived. [Citation.] [¶] In addition,
because of the complexity of human behavior, and the lack of a long history in every
case, mental illness and related disorders may be difficult to diagnose. [Citations.]
Where present, however, ‗ ―mental illness ‗often strikes only limited areas of functioning,
leaving other areas unimpaired, and consequently . . . many mentally ill persons retain the
capacity to function in a competent manner.‘ ‖ ‘ [Citation.] [¶] These characteristics
suggest that the mental conditions that create eligibility for an extended 180-day LPS Act
commitment, though they include imminent dangerousness, do not necessarily imply
incompetence or a reduced ability to understand, and make decisions about, the conduct
of the proceedings. Hence, nothing compels the conclusion that such LPS Act patients
will not benefit by the statutory right to a jury trial advisement set forth in section 5302.
By contrast, in the case of persons alleged to be mentally retarded and dangerous under
section 6500, the commitment process itself raises substantial doubts about their
cognitive and intellectual functioning sufficient to limit the personal and procedural role
they play. It follows that the two groups are not similarly situated as to the function that
Barrett implies an advisement like section 5302 serves—comprehending and controlling
the decision whether to request a jury trial. Thus, any disparate statutory treatment with
respect to jury trial advisements does not deprive persons like Barrett of equal protection
of the law.‖ (Barrett, supra, 54 Cal.4th at pp. 1108-1109, first italics in Barrett, second
italics added.)12

       12
          In 1981, the court in Cramer v. Gillermina R., supra, 125 Cal.App.3d 380
similarly held that because mental illness and mental retardation are separate and distinct

                                              26
       The court‘s discussion recognizes that unlike defendants whose competence is
questioned or persons diagnosed with mental retardation, those suffering from a mental
illness can comprehend and control the decision to waive a jury trial. In this regard,
Barrett’s view mirrors the implicit legislative finding underlying the statutory
requirements of an advisement and jury trial unless waived that an NGI can decide wither
to waive a jury trial. Moreover, these requirements further distinguish Masterson and
Barrett because the statutes in those cases do not mandate an advisement or jury trial
unless waived; rather, a jury trial must be demanded. (Barrett, supra, 54 Cal.4th at p.
1097; People v. Rojas (1981) 118 Cal.App.3d 278, 287; People v. Hill, supra, 67 Cal.2d
at p. 114 [under former § 1368]; e.g., People v. Superior Court (McPeters) (1985) 169
Cal.App.3d 796, 798.)
       Finally, Barrett’s view that having a mental disorder does not categorically render
one incapable of determining what is in his or her own best interests is not particularly
unique or unprecedented. In John L., supra, 48 Cal.4th 131, the court observed that
despite having mental disorders, conservatees are not, by reason of their conservatorship,
automatically considered incompetent to waive their rights. (Id. at p. 153.) In Qawi,
supra, 32 Cal.4th 1, the court opined that ―[a]lthough an MDO must be determined to
have a ‗severe mental disorder,‘ commitment for a mental disorder does not by itself
mean that individuals are incompetent to participate in their own medical decisions.
[Citations.]‖ (Id. at p. 24.) In People v. Wolozon (1982) 138 Cal.App.3d 456, the court
held that despite a finding of NGI and evidence of a mental disorder that rendered the
defendant dangerous, the defendant had the right to waive counsel and represent himself.
(Id. at pp. 460-461.) Similarly, in People v. Williams, supra, 110 Cal.App.4th 1577, the




conditions which require different treatment and/or habilitation,‖ their differing statutory
schemes did not violate equal protection. (Id. at pp. 387-388; accord, People v. Quinn
(2001) 86 Cal.App.4th 1290, 1294-1295.)

                                             27
court recognized that a defendant has the statutory right to waive counsel and represent
himself in a trial to extend his MDO commitment. (Id. at pp. 1587-1592.)
       In addition to Masterson, the Attorney General relies on Otis and Powell to
support her claim that counsel has exclusive control. However, reliance on those cases is
equally misplaced.
       Otis and Powell must be viewed in light of their particular facts and the issues
raised in them. (See Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [―language used in
any opinion is of course to be understood in the light of the facts and the issue then before
the court‖].) As noted, in Otis, the defendant was delusional, and the court upheld
counsel‘s jury waiver over the defendant‘s objection, opining that the defendant was not
capable of making a reasoned decision. (Otis, supra, 70 Cal.App.4th at pp. 1175-1176.)
Likewise, the court in Powell upheld counsel‘s waiver over the defendant‘s objection
because the defendant was medicated and his disruptive conduct demonstrated his
incompetence. (Powell, supra, 114 Cal.App.4th at p. 1158.)
       Given the particular facts concerning the mental state of the defendants in those
cases, we read them for the proposition that when it reasonably appears that an MDO or
NGI is incapable of determining whether a bench or jury trial is in his or her best
interests, he or she must act through counsel, and counsel has exclusive authority to
decide even over an objection. In this regard, the cases reflect the Masterson-Barrett
rationale for recognizing counsel‘s exclusive authority in proceedings to determine
competency and the dangerousness of a mentally retarded person. In our view, Otis and
Powell should not be read more broadly as holding that counsel controls the jury issue
regardless of whether the MDO or NGI is competent. This is especially so because
neither case discussed the purpose and function of the mandatory jury advisement.
                            C. Validity of Counsel’s Waiver
       We consider it helpful at this point to summarize our resolution of the parties‘
interlocking but opposing claims and our conclusion concerning the meaning of the

                                             28
waiver provision and the scope of counsel‘s authority. Section 1026.5 does not require
an NGI‘s personal waiver or give counsel exclusive control over the jury decision.
Rather, counsel can waive a jury trial at the NGI‘s direction or with his or her knowledge
and consent; and counsel can also do so even over an NGI‘s objection when the
circumstances cast reasonable doubt on the NGI‘s competence to determine what is in his
or her best interests.
       With this in mind, we note the ―well established rule in this state that ‗an appellate
court will never indulge in presumptions to defeat a judgment. It will never presume that
an error was committed, or that something was done or omitted to be done which
constitutes error. On the contrary, every intendment and presumption not contradicted by
or inconsistent with the record on appeal must be indulged in favor of the orders and
judgments of superior courts.‘ [Citation.]‖ (Walling v. Kimball (1941) 17 Cal.2d 364,
373, italics added; accord, Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261; People v.
Giordano (2007) 42 Cal.4th 644, 666; see Code Civ. Proc. § 475.) Accordingly, 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‖].)
       Here, the record is silent concerning whether defendant was in fact aware of his
right to a jury trial in this proceeding and whether he knew about, directed, authorized, or
objected to counsel‘s waiver. Under the circumstances, defendant cannot possibly satisfy
his burden to show that counsel‘s waiver was invalid and therefore that the court erred in
conducting a bench trial.
       Nor could defendant establish that the court‘s alleged errors in accepting counsel‘s
waiver and conducting a bench trial were prejudicial. It is settled that the denial of the

                                             29
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.) Thus, even if the record established that
counsel‘s waiver was invalid, our previous analysis and conclusion that the failure to
advise was harmless would apply with equal force to the denial of a jury trial. Simply
put, given the testimony at defendant‘s trial, we do not find it reasonably probable a jury
would have returned a more favorable verdict. (E.g., People v. Cosgrove (2002) 100
Cal.App.4th 1266, 1276 [given evidence, denial of statutory right to MDO trial
harmless].)
                              VI. CONSTITUTIONAL CLAIMS
       Defendant contends that in conducting a bench trial, the court denied him his
constitutional right to a jury trial under the state and federal due process and equal
protection clauses.
                                      A. Due Process
       Defendant asserts that if section 1026.5 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, 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

                                             30
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 v. Oklahoma (1980) 447 U.S. 343, 346 (Hicks).)
       In Powell, supra, 114 Cal.App.4th 1153, which is on point, the court similarly
held that ―[b]ecause the jury does not impose criminal punishment and has no power to
determine the extent to which the person will be deprived of his or her liberty, a waiver of
jury trial through counsel does not violate the person‘s constitutional right to jury trial.
[Citations.] We reject the argument that the jury waiver was ineffective or violated
appellant‘s due process rights.‖ (Id. at p. 1159.)13


       13
           Defendant cites In re Gary W. (1971) 5 Cal.3d 297 (Gary W.), People v.
Feagley (1975) 14 Cal.3d 338 (Feagley), People v. Thomas (1977) 19 Cal.3d 630
(Thomas), 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. Under the
equal protection clause, the former group was entitled to a request a jury trial unless there
is a valid justification for not allowing them to do so. Where there was no such valid
justification, the unequal treatment was arbitrary and violates due process. However,
none of these cases separately analyzed whether apart from prohibiting the arbitrarily and
different treatment of similarly situated persons the due process clause independently

                                                31
        Citing Hicks, supra, 447 U.S. 343, defendant argues that Powell did not address
his due process claim based on the notion that he was arbitrarily deprived of his statutory
right to a jury trial.
        It is true that defendant had the statutory right to a jury advisement. However, he
was not arbitrarily deprived of that right. Counsel waived defendant‘s presence at every
hearing before trial. Defendant also had the right to a jury trial. However, he was not
arbitrarily deprived of that right either. Rather, counsel waived it. 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 NGI 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
section 1026.5 provides defendant with the right to a jury trial, and counsel waived that
right. Thus, as the Attorney General points out, defendant fails to identify how he was
treated differently from how he would have been treated under any of the other
commitment schemes.




guaranteed persons subject to civil commitment the right to a jury trial. Accordingly, we
find defendant‘s reliance on them misplaced.

                                              32
                                VII. DISPOSITION
     The order extending defendant‘s commitment is affirmed.




                                     ______________________________________
                                                RUSHING, P.J.




I CONCUR:




____________________________________
           PREMO, J.




                                       33
ELIA, J., Concurring:
       I respectfully concur in the judgment on the ground no reversible error has been
shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836; Denham
v. Superior Court (1970) 2 Cal.3d 557, 564 [all intendments and presumptions are
indulged to support a judgment or order regarding matters as to which the record is silent;
error must be affirmatively shown]; cf. 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. (E.g.,
People v. Rowell (2005) 133 Cal.App.4th 447, 452-454 . . . [in sexually violent predator
recommitment proceeding, trial court properly accepted counsel's representation that
client wanted court trial instead of jury trial]; [Conservatorship of Mary K. (1991) 234
Cal.App.3d 265,] 271 . . . .)"].)
       On the record before us, we must presume for purposes of this appeal that
appellant's counsel informed him that he had a right to be tried by a jury and counsel
waived a jury in accordance with appellant's informed wishes (see maj. opn., ante, pp. 1,
4-5, 29). (See Denham v. Superior Court, supra, 2 Cal.3d at p. 564; see also
Conservatorship of John L., supra, 48 Cal.4th at pp. 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, the same presumption applies. To the
extent appellant may be also arguing that he had a separate due process right, 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 not
persuasive.
       This case does not present the issue, and it is unnecessary for this court to decide,
whether appellant, if competent, was entitled to make the final decision regarding waiver
of a jury or whether appellant's counsel had authority to waive a jury without appellant's
approval or over appellant's objection. There is no call for us to decide in this case 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, subdivision (b). "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.


People v. Fuquay


H037195




                                               2
Trial Court:                                 Santa Clara County
                                             Superior Court No.: C9945301


Trial Judge:                                 The Honorable Gilbert T. Brown



Attorney for Defendant and Appellant         Julia Freis
Maxwell Martin Fuquay:                       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. Fuquay
H037195




                                         3
