Filed 6/7/13 P. v. Bartz CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037331
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 211692)

              v.

JAMES BARTZ,

         Defendant and Appellant.



                                         I. STATEMENT OF THE CASE
         Defendant James Bartz appeals from an order converting his involuntary
commitment as a mentally disordered offender (MDO) on parole to a post-parole, civil
commitment and then extending it. (Pen. Code, §§ 2962, 2970, 2972.)1 He claims the
court erred in failing to advise him of his right to a jury trial, accepting counsel’s jury
waiver, and conducting a bench trial.
         We affirm the extension order.
                            II. BACKGROUND AND PROCEDURAL HISTORY
         On November 3, 2006, a man was standing on his property when defendant
attacked him with either a pipe or a wooden stake, kicked him in the head, clawed his


         1
             All unspecified statutory references are to the Penal Code.
eyes, punched him, and bit his finger. At the time, defendant had been off his
psychotropic medication for a month and was suffering from the delusional belief that the
man was trespassing and he needed to protect his property. After the attack, defendant
asked the man if he wanted to go have a drink but then ran off.
       In February 2006, defendant was convicted of assault with a deadly weapon
(§ 245, subd. (a)(1)) and sent to prison. He was released on parole in January 2008, but
in April 2008, his parole was revoked after his arrest for public drunkenness. In June
2008, defendant was sent to San Quentin and then transferred to Atascadero State
Hospital (ASH), where he was certified as an MDO. (§ 2962.)
       In August 2010, defendant was moved to a less structured, state transitional
residential program called Northstar, and in November 2010, he was released for
outpatient treatment to Harper Medical Group (Harper) under the South Bay Conditional
Release program. However, in December 2010, after only a few weeks at Harper,
defendant packed a bag and absconded. An arrest warrant was issued.
       On February 16, 2011, the Santa Clara County District Attorney filed a petition to
convert and extend defendant’s MDO commitment. In July 2011, defendant was
arrested. At a pretrial hearing on August 19, 2011, counsel appeared and waived a jury
trial. On August 31, 2011, after a bench trial, the court sustained the petition, converted
defendant’s commitment, and extended it until September 11, 2012.
                               III. THE EXTENSION TRIAL
       Kristine Campbell, MFT, testified as an expert in the diagnosis and treatment of
mental disorders and risk assessment. She evaluated defendant at ASH and was his case
supervisor at Harper. She said that defendant was diagnosed with schizo-affective
disorder, bi-polar type, polysubstance dependence, and antisocial personality disorder.
She testified that defendant had a long criminal history involving alcohol and drug related
offenses, domestic violence, robbery, burglary, and assault.


                                             2
       Ms. Campbell met with defendant regularly in groups and for individual therapy
until he absconded. She testified that he had been long history of psychosis was still
“struggling with reality testing.” At one point, he told her that without the support at
Harper, he would likely start using drugs and alcohol again, reoffend, and end up
incarcerated. He also admitted being an alcoholic and drug addict.
       Ms. Campbell recommended that defendant’s commitment be extended. She
noted that he had an extensive history of noncompliance with treatment and medication.
She opined that without supervision and medication, defendant’s delusions would return.
They included a belief that he was Satan, that he owned everything, and that people were
following him. Ms. Campbell did not know whether defendant was currently taking his
medication to control his symptoms. However, she opined that it was unlikely that his
mental condition was in remission, given how long defendant had been psychotic—10
years—the period of time that he had not been in a structured program, the likelihood that
he had not taken medication during the seven months after he had absconded. She
testified that defendant needed a significant period of time to restabilize with his
medication before his condition could be considered in remission. She also believed that
he would benefit from mental health treatment. She opined that at present, he currently
posed a risk to others if released.
       Defendant admitted that he had not been taking any medication, but he denied that
he needed it. He did not recall telling Ms. Campbell that without supervision, he would
relapse and be reincarcerated. Defendant said he knew that absconding violated parole
but he left Harper anyway. He explained that he was not supposed to drink but knew that
he would and left to avoid having to report. He said that his pattern is to drink, abscond,
and get arrested until his parole period expires.
       Defendant denied being an alcoholic but acknowledged having a number of
alcohol related convictions and using every kind of drug available on the street.


                                              3
          Defendant admitted attacking the victim and conceded that the man was not
trespassing on defendant’s property. However, he was not sure the man was on his own
property, adding that “there’s a little more to the story than that . . . .”
          Defendant denied ever believing that he was Satan but admitted having his family
look into the fact that the number “0666” was on his birth certificate. He also admitted to
being concerned at times about people following him.
          Defendant denied suffering from schizo-affective disorder or ever having
delusions or hallucinations. He said that in prison, he heard how it was possible to feign
mental illness in order to get medication, his own cell, and social security. However,
defendant admitted having antisocial personality disorder, which he described as being
more logical than emotional. “It means I’m not led by my emotions, which to me is a
benefit, you know. Say, you know, I have a love for my family and my family runs a
business or doing something illegal, you know, and I know they’re wrong, but because I
love my family it’s okay if they did that, you know. Do you understand?” He continued,
“I’m not led by it. The same thing with maybe a relationship between a man and a
woman and they fall in love, and because of that it turns to hate and then somebody ends
up dead. But—so I don’t really have a love for my family—this may sound negative, but
I don’t have really a love for anything except for, you know, my survival, things that I
need to do.”
          Defendant explained that once he left Harper, he and a girlfriend went to Santa
Cruz and then to San Leandro, where he was arrested. He admitted that after he left
Harper, he drank alcohol and smoked marijuana even though he knew he was violating
parole.
                                        IV. MOOTNESS
          The extension period of defendant’s commitment has expired, and therefore the
propriety of the court’s order is now moot. Thus, it may not appear necessary to address
defendant’s claims of error concerning the jury advisement, lack of personal waiver, and
                                                4
bench trial. However, “we review the merits of appeals from timely filed petitions that
are rendered technically moot during the pending of the appeal, . . . because the appellant
is subject to recertification as an MDO, and the issues are otherwise likely to evade
review due to the time constraints of MDO commitments. [Citations.]” (People v.
Merfield (2007) 147 Cal.App.4th 1071, 1074.)
           V. THE MDO COMMITMENT SCHEME AND EXTENSION PROCEDURE
       When persons who have been convicted of a violent crime related to their mental
disorders are eligible for release but currently pose a danger of harm to others, the
Mentally Disordered Offender Act (the Act) (§ 2960 et seq.) permits their involuntary
commitment to a state hospital for treatment until their disorders can be kept in
remission. (In re Qawi (2004) 32 Cal.4th 1, 9 (Qawi); see Lopez v. Superior Court
(2010) 50 Cal.4th 1055, 1061 (Lopez) [the MDO Act has the dual purpose of protecting
the public while treating severely mentally ill offenders].)
       The Act provides treatment at three stages of commitment: as a condition of
parole, in conjunction with the extension of parole, and following release from parole.
(Lopez, supra, 50 Cal.4th at p. 1061.) “Sections 2970 and 2972 govern the third and final
commitment phase, once parole is terminated. If continued treatment is sought, the
district attorney must file a petition in the superior court alleging that the individual
suffers from a severe mental disorder that is not in remission, and that he or she poses a
substantial risk of harm. (§ 2970.)” (Lopez, supra, 50 Cal.4th at p. 1063.)
       Section 2972, subdivision (a) provides, among other things, that when a petition is
filed, the court “shall advise the person . . . of the right to a jury trial”; and “the trial shall
be by jury unless waived by both the person and the district attorney.”2 (§ 2972.) To

       2
          Section 2972, subdivision (a) provides, “(a) The court shall conduct a hearing on
the petition under Section 2970 for continued treatment. The court shall advise the
person of his or her right to be represented by an attorney and of the right to a jury trial.
The attorney for the person shall be given a copy of the petition, and any supporting
documents. The hearing shall be a civil hearing, however, in order to reduce costs the
                                                 5
obtain an extension, the district attorney must prove, and the trier of fact must find
beyond a reasonable doubt, that (1) the person continues to have a severe mental
disorder; (2) the person’s mental disorder is not in remission or cannot be kept in
remission without treatment; and (3) the person continues to represent a substantial
danger of physical harm to others. (Lopez, supra, 50 Cal.4th at p. 1063; People v. Beeson
(2002) 99 Cal.App.4th 1393, 1398-1399; § 2972, subds. (c), (e).)
                                      VI. DISCUSSION
       Defendant contends that the court erroneously denied him the right to a jury trial
because it failed to give the required jury advisement, failed to obtain an express,
personal jury waiver from him, and instead accepted counsel’s waiver.
                                   A. FAILURE TO ADVISE
       Section 2972, subdivision (a) requires the court to “advise the person of his or her
right . . . to a jury trial.” This language imposes a mandatory duty on the court.3 (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 is undisputed that the court did not directly advise defendant on the record
before trial. The record reveals that counsel waived defendant’s presence at a number of
pretrial status hearings before and after defendant’s arrest. Defendant did not make his
first appearance until March 17, the day of the bench trial. Nevertheless, the court’s
failure to give the required advisement does not compel reversal.

rules of criminal discovery, as well as civil discovery, shall be applicable. [¶] The
standard of proof under this section shall be proof beyond a reasonable doubt, and if the
trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless
waived by both the person and the district attorney. The trial shall commence no later
than 30 calendar days prior to the time the person would otherwise have been released,
unless the time is waived by the person or unless good cause is shown.”
       3
         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].)
                                               6
       Before any judgment can be reversed for error under state law, it must appear that
the error complained of “has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §
13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means that reversal is
justified “when the court, ‘after an examination of the entire cause, including the
evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.” (People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
       It is beyond dispute that counsel was aware of defendant’s right to a jury trial.
Where, as here, counsel waives an MDO’s presence at pretrial hearings, effectively
preventing a direct judicial advisement before trial, the court may reasonably expect
counsel to discuss all pertinent matters that will arise or that have arisen in pretrial
hearings, including the right to a jury trial and whether to have one. Indeed, “[l]ike all
lawyers, the court-appointed attorney is obligated to keep her client fully informed about
the proceedings at hand, to advise the client of his rights, and to vigorously advocate on
his behalf. [Citations.] The attorney must also refrain from any act or representation that
misleads the court. (Bus. & Prof.Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5–
200(B).)” (In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 151-152,
italics added.) Moreover, absent a showing to the contrary, “[a] reviewing court will
indulge in a presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be explained as a
matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211;
Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship of
Mary K. (1991) 234 Cal.App.3d 265, 272 [where no evidence to the contrary, court may
presume counsel discussed jury waiver with client before waiving on client’s behalf].)
       Under the circumstances, and in the absence of evidence to the contrary, we may
presume that counsel discussed the jury issue with defendant.


                                               7
         Moreover, on appeal, the appellant bears the burden to affirmatively establish
error and then demonstrate that it resulted in a miscarriage of justice that requires
reversal. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Freeman v. Sullivant
(2011) 192 Cal.App.4th 523, 528; Paterno v. State of California (1999) 74 Cal.App.4th
68, 105-106; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; see 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 355, p. 409 [presumption of correctness; “error must
be affirmatively shown”].)
         Here, the record does not suggest that defendant was unaware that counsel
intended to waive a jury and had done so or that counsel acted without defendant’s
knowledge or consent or that defendant wanted a jury trial and objected (or would have
objected) to counsel’s waiver. Any such inferences would be pure speculation on our
part.4
         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
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.)
         The testimony of Ms. Campbell constitutes overwhelming evidence to support the
court’s finding that defendant posed a risk of harm due to mental disorders that were not
in remission. She testified that defendant suffered from schizo-affective disorder,
polysubstance dependence, and antisocial personality disorder and had delusions like the
one that led to his commitment offense. Defendant denied having that disorder but
admitted having anti-personality disorder, but understood it to mean putting one’s


         4
         If, in fact, defendant was unaware of his right to a jury trial and would have
opposed or did oppose counsel’s waiver, but the evidence to establish these facts lay
outside the record on appeal, defendant had the alternative a remedy of habeas corpus to
challenge his commitment on the ground of ineffective assistance of counsel. (See
People v. Gray (2005) 37 Cal.4th 168, 211 [claims grounded in facts outside the record
can be raised by habeas petition]; In re Bower (1985) 38 Cal.3d 865, 872.)
                                               8
survival first and thinking logically rather than emotionally. Although defendant denied
having delusions or hallucinations, he admitted that at times he thought people were
following him.
       Given defendant’s long criminal history of alcohol and drug related violent
offenses, psychosis, and lack of compliance with treatment, Ms. Campbell considered it
likely that defendant would not take medication if released, without it, his psychotic
delusions were likely to resurface and render him dangerous. Indeed, defendant admitted
to her, in essence, that he would relapse into substance abuse without supervision, and in
fact, after absconding he did.
       Other than his own testimony, defendant offered no evidence that contradicted or
undermined Ms. Campbell’s expert testimony.
       Under the circumstances, 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 before trial to expressly advise him about the right to a jury
trial. (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].)5
                         B. Failure to obtain Personal Waiver
       Defendant claims that the Act requires the court to conduct a jury trial unless it
obtains the MDO’s personal waiver. Recently, in People v. Blackburn (2013) 156
Cal.App.4th 809 [156 Cal.Rptr.3d 106, 112-115] (Blackburn), we addressed and rejected
this claim.

       5
          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 MDO is made aware of the right to a jury trial. In our view, the
practical difficulty in advising an MDO committed to a state hospital could easily be
solved with an advisement and waiver form for the MDO read and sign. (See People v.
Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form proper substitute for judicial
advisement].)
                                             9
       We noted that the claim previously had been rejected in People v. Otis (1999) 70
Cal.App.4th 1174 (Otis) and People v. Montoya (2001) 86 Cal.App.4th 825, 829
(Montoya). Those courts noted that the statutory language did not expressly require a
personal waiver; nor did it clearly preclude a waiver by counsel. The courts also declined
to infer such a requirement because some MDOs may not be sufficiently competent to
determine whether a bench or jury trial is in his or her best interests. Under those
circumstances, the MDO must act through counsel, and counsel must have authority to
act, even over the objection of such an MDO. (Otis, supra, 70 Cal.App.4th at pp. 1176-
1177; Montoya, supra, 86 Cal.App.4th 830-831; cf. People v. Powell (2004) 114
Cal.App.4th 1153, 1157-1159 (Powell) [relying on Otis to reject a claim that similar
language in section 1026.5 required personal jury waiver].)
       In Blackburn, we agreed with Otis and Montoya. (Blackburn, supra, 215
Cal.App.4th at pp. ___ [156 Cal.Rptr.3d at p. 113].) In addition, we opined that
interpreting the statutory language to require a personal waiver resulted in consequences
that were illogical and anomalous. (Ibid.) We noted that for a variety of reasons, MDOs
often do not appear in court until the day of trial. We considered it was illogical to
prohibit counsel from waiving the statutory right to a jury trial at the MDO’s direction or
with the MDO’s express consent and instead require the court to order the MDO’s
presence at some pretrial hearing just to secure a personal waiver because counsel can
waive a client’s more fundamental constitutional right to a jury trial in civil actions. (Id.
at p.114; see (Cal. Const., art. I, § 16 [right to jury trial]; Code of Civ. Proc, § 631
[prescribing types of waiver]; Zurich General Acc. & Liability Ins. Co. v. Kinsler (1938)
12 Cal.2d 98, 105 (Zurich) [waiver by party or counsel], overruled on other grounds in
Fracasse v. Brent (1972) 6 Cal.3d 784, 792; Cadle Co. v. World Wide Hospitality
Furniture, Inc. (2006) 144 Cal.App.4th 504, 510; Conservatorship of Maldonado (1985)
173 Cal.App.3d 144, 148; see Code Civ. Proc., § 283, subd. (1) [counsel has authority to
bind client in any of the steps of an action].)
                                               10
       We further observed that some MDO may be so delusional or otherwise affected
by their mental disorders that they lack the capacity to know what is in their own best
interests and make a rational decision. Under such circumstances, an MDO may not be
able to knowingly and intelligently waive the right to a jury trial. We opined that “[i]f an
MDO is incompetent, and in a particular case counsel believes that a jury waiver is in the
MDO’s best interests, requiring that MDO’s personal waiver would undermine counsel’s
ability to protect the MDO’s interests and mechanically require the court to conduct a
jury trial or give the incompetent defendant veto power over counsel’s informed
determination.” (Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at
p. 113].)
       In short, we found that “preventing counsel from waiving a jury at the NGI
defendant’s direction or with the MDO’s consent and preventing counsel from doing so
on behalf of an incompetent MDO are anomalous consequences that would flow from
interpreting the waiver provision literally and restrictively to require a personal waiver.”
(Blackburn, supra, 215 Cal.App.4th at p. ___ [156 Cal.Rptr.3d at p. 113].) For that
reason, we considered it unreasonable to infer such a restrictive and exclusive legislative
intent from the statutory language. (Ibid.)
       Defendant urges us not to follow Otis—and presumably Montoya—because Otis is
factually distinguishable. He notes that the MDO in Otis was delusional and thus not
sufficiently competent to make a rational decision. Here, on the other hand, there was no
evidence or testimony suggesting that he was not capable of rationally deciding between
a bench and jury trial.
       We acknowledge this distinction. However, it makes no difference. The Otis and
Montoya courts declined to interpret the Act to require a personal waiver not because the
MDO in that particular case was delusional but because in general, the requirement
would prevent counsel from protecting the interests of MDOs who are not sufficiently
competent to know what was in their own best interests. That the MDO in that case was
                                              11
delusional is what allowed the court to uphold counsel’s waiver over the MDO’s
objection.
       Defendant also claims that Otis erroneously presumes that all MDOs are not
sufficiently competent to decide between a bench and jury trial. We agree that MDOs
should not be considered categorically incompetent to control the decision of whether to
have a jury trial. However, Otis does not purport to make such a presumption.
       In Otis, supra, 70 Cal.App.4th at 1174, counsel waived a jury trial. The defendant
objected and requested a jury trial, but at the time, he was experiencing delusions that he
was being sexually assaulted by invisible police. The court denied the request. On
appeal the defendant claimed that the Act required his personal waiver. As noted, the
court disagreed and upheld the waiver over the defendant’s objection. In doing so, the
court further explained that the Act “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.” (Id.
at pp. 1176-1177.)
       In Blackburn, we understood Otis in light of its facts and the issues raised. (See
Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“[l]anguage used in any opinion is of
course to be understood in the light of the facts and the issue then before the court”].)
Given the mental state of the defendant in Otis, we read it to hold “that when an MDO
appears to be incapable of determining whether a bench or jury trial is in his or her best
interests, the MDO must act through counsel, and counsel has exclusive authority to
decide even over the MDO’s objection.” (Blackburn, supra, 152 Cal.App.4th at p. ___
[156 Cal.Rptr.3d at p. 122].) We concluded that it could not be read more broadly to
hold that counsel controls the jury issue regardless of whether the MDO is competent to
understand the advisement and make a reasoned decision. (Ibid.)
                                             12
                             C. Failure to Conduct Jury Trial
       Given our analysis, it is clear that the court did not err in failing to obtain an
express, personal waiver from defendant himself. Nevertheless, the propriety of the
bench trial depends on whether counsel’s waiver was valid. However, on the record
before us, defendant cannot satisfy his burden to establish that counsel’s waiver was
invalid or that the court erred in accepting it.
       As noted, we may presume that counsel discussed the jury issue with defendant.
Moreover, it is mere speculation to find that defendant was unaware that counsel intended
to waive a jury and had done so or that counsel acted without defendant’s knowledge or
consent or that defendant wanted a jury trial and objected (or would have objected) to
counsel’s waiver.
       Moreover, even if defendant could show that counsel acted without his knowledge
and consent or over his objection, he could not establish prejudice. In this regard, it is
settled that the erroneous denial of a statutory right to a jury trial is subject to harmless-
error review under the Watson test which asks whether it is reasonably probable the result
would have been more favorable had there been a jury trial. (People v. Epps (2001) 25
Cal.4th 19, 29.)
       Our Watson analysis concerning the court’s failure to advise applies with equal
force to the alleged erroneous denial of a jury trial. Given Ms. Campbell’s and
defendant’s testimony, we do not consider it reasonably possible, let alone reasonably
probable, that a jury would have returned a verdict more favorable than the court’s
verdict. (People v. Watson, supra, 46 Cal.2d at p. 836; e.g., People v. Cosgrove (2002)
100 Cal.App.4th 1266, 1276 [denial of statutory right to MDO trial harmless].)
                                 D. Constitutional Claims
       Defendant contends that in conducting a bench trial, the court denied his
constitutional right to a jury trial under the state and federal due process and equal
protection clauses.
                                               13
                                        1. Due Process
       Defendant theorizes that if the Act did not provide the right to a jury trial, he
would still have the right under the state and federal constitutional guarantees of due
process. He argues that the court’s procedure in this case violated this constitutional
right. However, since there is a statutory right, defendant’s due process claim is based
upon an assumption which is contrary to the state of existing law. We will not decide
theoretical constitutional questions which are based upon faulty premises. (People v.
Moore (2011) 51 Cal.4th 1104, 1123 [rejecting equal protection argument based on faulty
premise]; People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due process claim
challenging state’s actions rejected where argument based upon faulty premise that
defendant committed no unlawful act]; Berardi v. Superior Court (2008) 160 Cal.App.4th
210, 228 [court will not decide “hypothetical or other questions of constitutional law
unnecessary to our disposition of the case”].)
       Moreover, we note that in Montoya, supra, 86 Cal.App.4th 825, the court rejected
the MDO’s claim that the federal due process clause guaranteed an MDO the right to a
jury trial. “ ‘Where . . . a State has provided for the imposition of criminal punishment in
the discretion of the trial jury, it is not correct to say that the defendant’s interest in the
exercise of that discretion is merely a matter of state procedural law. The defendant in
such a case has a substantial and legitimate expectation that he will be deprived of his
liberty only to the extent determined by the jury in the exercise of its statutory discretion,
[citation], and that liberty interest is one that the Fourteenth Amendment preserves
against arbitrary deprivation by the State.’ [Citation.] A jury sitting in a civil hearing
pursuant to sections 2970 and 2972 does not impose criminal punishment and has no
power to determine the extent to which the defendant will be deprived of his liberty.
Defendant’s jury trial interest thus is, in this case, ‘merely a matter of state procedural
law’ and does not implicate the Fourteenth Amendment. [Citation].” (Id. at pp. 831-832,
quoting Hicks v. Oklahoma (1980) 447 U.S. 343, 346 (Hicks); cf. Powell, supra, 114
                                               14
Cal.App.4th at p. 1159 [rejecting NGI’s claim that denial of jury trial violated
constitutional right to due process].)
         Defendant cites In re Gary W. (1971) 5 Cal.3d 297, People v. Feagley (1975) 14
Cal.3d 338, People v. Thomas (1977) 19 Cal.3d 630, and In re Hop (1981) 29 Cal.3d 82
for the proposition that due process guarantees the right to a jury trial in commitment
cases.
         In these cases, the court found that persons facing involuntary commitment under
statutory schemes that did not provide for a jury trial were similarly situated to persons
facing commitment under schemes that provided a jury trial upon request. Thus, under
the equal protection clause, the former group is entitled to request a jury trial unless there
is a valid justification for not allowing them to do so. And if there is no such valid
justification, the unequal treatment is arbitrary and violates due process. However, none
of these cases separately analyzed whether, apart from arbitrarily treating similarly
situated persons differently, the due process clause independently guarantees persons
subject to civil commitment the right to a jury trial. Accordingly, we find defendant’s
reliance on them to be misplaced.
         Moreover, while the arbitrary denial of a statutory right may violate the
constitutional guarantee of due process, the record here does not establish that the court’s
failure to advise defendant and failure to conduct a jury trial were arbitrary. Counsel
waived defendant’s presence at every hearing before trial, and he also waived a jury trial.
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
                                              15
an MDO defendant facing an extended commitment is similarly situated to persons facing
a commitment under these other schemes. Thus, he claims that in conducting a bench
trial here, the court denied him equal protection. Defendant’s claim fails because the Act
provides defendant with the right to a jury trial, and counsel waived that right. Thus,
defendant fails to identify how he was treated differently from how he would have been
treated under any of the other commitment schemes.
                                    VII. DISPOSITION
       The order extending defendant’s commitment is affirmed.

                                          ______________________________________
                                                     RUSHING, P.J.




I CONCUR:




____________________________________
           PREMO, J.




                                            16
ELIA, J., Concurring
       I respectfully concur in the judgment on the ground that no reversible error has
been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
We must presume for purposes of this appeal that appellant's counsel informed appellant
that he was entitled to be tried by a jury and counsel waived a jury trial in accordance
with appellant's informed consent (see maj. opn., ante, p. 2). (See Denham v. Superior
Court (1970) 2 Cal.3d 557, 564 [all presumptions are indulged to support a judgment or
order regarding matters as to which the record is silent; error must be affirmatively
shown]; see also Conservatorship of John L. (2010) 48 Cal.4th 131, 148 ["When a
statutory right in a civil commitment scheme is at issue, the proposed conservatee may
waive the right through counsel if no statutory prohibition exists. [Citations.]"], 151-152
[attorney is obligated to keep client fully informed of proceedings, to advise client of his
rights, and to refrain from any act or representation that misleads the court].)
       Even assuming arguendo that appellant had a constitutional right to a jury trial as a
matter of due process, the same presumption regarding waiver applies on appeal. (See
Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Conservatorship of John L., supra,
48 Cal.4th at pp. 151-152.) To the extent appellant is arguing that he had concomitant
due process rights, under either the United States or California Constitution, to a judicial
advisement of his right to a jury trial and to personally waive a jury on the record, his
arguments are unpersuasive since he was represented by counsel who presumably
advised and consulted with him and there is no constitutional provision explicitly
requiring an express, personal waiver of a jury in noncriminal proceedings. (See Cal.
Const., art. I, § 16; cf. Code Civ. Proc., § 631; People v. Bradford (1997) 14 Cal.4th
1005, 1052-1053 [in criminal prosecution, no express, personal waiver from a defendant
is required for waiver of constitutional right to testify; a trial judge may safely assume
that a nontestifying defendant is abiding by his counsel's trial strategy].)
        Consequently, it is unnecessary in this case to repeat the majority's conclusions in
People v. Blackburn (2013) 215 Cal.App.4th 809 regarding the exact extent of a counsel's
authority to waive a jury for trial on a petition for continued treatment (Pen. Code,
§§ 2970, 2972). As the United States Supreme Court stated: "The duty of this court, as
of every other judicial tribunal, is to decide actual controversies by a judgment which can
be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it." (Mills v. Green (1895) 159 U.S. 651, 653 [16 S.Ct. 132]; see
Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536,
541.)




                                    _________________________________
                                    ELIA, J.




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