Filed 8/17/15 (this opn. follows companion case, S211078, also filed 8/17/15)




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )                                          S211329
                                     )
           v.                        )
                                     )                                      Ct.App. 6 H036977
DAWN QUANG TRAN,                     )
                                     )                                     Santa Clara County
           Defendant and Appellant.  )                                    Super. Ct. No. 205026
____________________________________)


        In the companion case of People v. Blackburn (Aug. 17, 2015, S211078)
___ Cal.4th ___ (Blackburn), we addressed the meaning of provisions in the
statutory scheme for extending the commitment of a mentally disordered offender
(MDO) that require the trial court to ―advise the person of his or her right to be
represented by an attorney and of the right to a jury trial‖ and to hold a jury trial
―unless waived by both the person and the district attorney.‖ (Pen. Code, § 2972,
subd. (a).) We held that the trial court must personally advise the MDO defendant
of his or her right to a jury trial. In addition, before conducting a bench trial, the
court must obtain the defendant‘s personal waiver of his or her right to a jury trial
unless the court finds substantial evidence — that is, evidence sufficient to raise a
reasonable doubt — that the defendant lacks the capacity to make a knowing and
voluntary waiver, in which case defense counsel controls the waiver decision.
        In this case, we address the meaning of nearly identical language in the
statutory scheme for extending the involuntary commitment of a person originally

                                                    1
committed after pleading not guilty by reason of insanity (NGI) to a criminal
offense. The NGI statute provides that in a commitment extension proceeding,
―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‖ (Pen. Code, § 1026.5,
subd. (b)(3)), and ―[t]he trial shall be by jury unless waived by both the person and
the prosecuting attorney‖ (id., § 1026.5, subd. (b)(4)). We hold that this language
has the same meaning as the parallel language in the MDO statute: The trial court
must advise the NGI defendant personally of his or her right to a jury trial and,
before holding a bench trial, must obtain a personal waiver of that right from the
defendant unless the court finds substantial evidence that the defendant lacks the
capacity to make a knowing and voluntary waiver, in which case defense counsel
controls the waiver decision.
       In this case, a bench trial resulted in an order extending the commitment of
NGI defendant Dawn Quang Tran. The trial court did not advise Tran of his right
to a jury trial, nor did it obtain a personal waiver from Tran or find substantial
evidence that Tran lacked the capacity to make a knowing and voluntary waiver.
In these respects, the trial court erred. When a trial court errs in completely
denying an NGI defendant his or her statutory right to a jury trial, the error
constitutes a miscarriage of justice and automatically requires reversal. In Tran‘s
case, however, because the trial court and the parties, in reliance on prior law,
likely did not contemplate the need to make a record in conformity with our
holding, we reverse the Court of Appeal‘s judgment upholding the extension order
and remand to that court with directions to remand the case to the trial court for a
proper determination of whether Tran personally made a knowing and voluntary
waiver of his right to a jury trial or whether, at the time of counsel‘s waiver, there
was substantial evidence that Tran lacked the capacity to make a knowing and
voluntary waiver.

                                           2
                                           I.
        In 1998, Tran pleaded not guilty by reason of insanity to one count of lewd
and lascivious conduct with a child under age 14. (Pen. Code, § 288, subd. (b)(1);
all subsequent statutory references are to this code unless otherwise indicated.)
Tran was committed to Napa State Hospital for treatment, and his commitment
was extended by written waiver in 2005, by bench trial in 2007, and by jury trial in
2009.
        In April 2011, the Santa Clara County District Attorney filed a petition to
extend Tran‘s commitment a fourth time. No record was kept of the relevant
pretrial proceedings. According to a settled statement requested by the Court of
Appeal, defense counsel notified the court that Tran opposed an extension of his
commitment and wanted a trial. Defense counsel requested a bench trial, and the
prosecutor agreed.
        At trial, Tran‘s treating psychiatrist at Napa State Hospital, Dr. Eric
Khoury, testified that Tran suffered from bipolar disorder, which at times had been
severe and had caused psychotic episodes. Dr. Khoury explained that the disorder
was a chronic condition requiring regular medication. Although Tran generally
took his medication, he occasionally claimed he was cured. Dr. Khoury expressed
concern that without close supervision, Tran would stop taking his medication
and, as a result, would pose a danger to himself and others due to his mental
disorder. In response, Tran testified on his own behalf. He acknowledged that he
was mentally ill at the time of commitment but believed he was ready for release.
Although he admitted he had previously stopped taking his medication, he said he
would take his medication for the rest of his life. The court sustained the petition
and extended Tran‘s commitment.
        Tran appealed, arguing that the trial court prejudicially erred by failing to
advise him of his right to a jury trial and by failing to obtain his personal waiver of

                                           3
that right before conducting a bench trial. The Court of Appeal held that the
language of section 1026.5, subdivision (b)(3) (hereafter section 1026.5(b)(3))
―imposes a mandatory duty‖ of advisement on the trial court and ―reflects a
legislative intent to judicially ensure that ‗the person‘ knows that he or she has the
right to a jury trial.‖ The Court of Appeal found that the trial court had failed to
advise Tran of his right to a jury trial, but that this error was harmless because ―the
record does not show that defendant was unaware of his right.‖ The Court of
Appeal reasoned that because Tran‘s third petition was tried before a jury, he was
likely aware of his right to a jury trial.
       The Court of Appeal further held that section 1026.5, subdivision (b)(4)
(hereafter section 1026.5(b)(4)) does not require personal waiver. However, the
court said, because the purpose of the jury trial advisement is ―to inform the NGI
of the right to a jury trial so that he or she can decide whether to waive it,‖ the
waiver provision cannot reasonably be read to give counsel ―exclusive control‖
over the decision to waive the right. Instead, the court explained, counsel may
waive a jury trial only ―at the NGI‘s direction or with his or her knowledge and
consent‖ or ―over an NGI‘s objection when the circumstances give counsel reason
to doubt the NGI‘s competence to determine what is in his or her best interests.‖
The court found that because Tran was likely aware of his right to a jury trial and
there was no indication that Tran disagreed with counsel‘s decision to waive a jury
trial, Tran could not meet his burden to show error. Further, even if Tran could
establish error, he could not establish prejudice in light of Dr. Khoury‘s adverse
testimony.
       We granted review in this case and in a companion case, Blackburn, which
presents similar issues in the context of commitment extension proceedings for
mentally disordered offenders. (§ 2972, subd. (a).)



                                             4
                                           II.
       The Legislature enacted the statutory scheme that governs NGI
commitment proceedings in 1979 in the wake of decisions of this court finding
due process guarantees applicable to certain commitment proceedings. (See In re
Moye (1978) 22 Cal.3d 457, 467; People v. Feagley (1975) 14 Cal.3d 338, 350;
People v. Burnick (1975) 14 Cal.3d 306, 324–325; In re Gary W. (1971) 5 Cal.3d
296.) The statute, as enacted, set forth several procedural protections generally
available only in the criminal context (Stats. 1979, ch. 1114, § 3, pp. 4051–4053),
and those protections remain in the law today (§ 1026.5, subd. (b)(3), (4), & (7)).
(See Hudec v. Superior Court (2015) 60 Cal.4th 815, 820–822 [reviewing
legislative history of section 1026.5].)
       A criminal defendant who pleads not guilty by reason of insanity and who
is found legally insane at the time of the offense may be committed to a state
medical facility for a period as long as the maximum sentence that could have
been imposed for the underlying offense. (§ 1026.5, subd. (a)(1).) At least 180
days before the commitment term expires, the facility‘s medical director must
submit an opinion to the prosecuting attorney advising whether the defendant
represents a ―substantial danger of physical harm to others‖ due to ―mental
disease, defect, or disorder.‖ (§ 1026.5, subd. (b)(1), (2).) In turn, the prosecutor
may request ―supporting evaluations and relevant hospital records.‖ (§ 1026.5,
subd. (b)(2).)
       The prosecuting attorney may then file a petition with the superior court
seeking to extend the defendant‘s commitment by two years. Subdivision (b)(3)
through (7) of section 1026.5 set forth the procedures applicable to a hearing on
such a petition. As relevant here, when a petition is filed, ―the court shall advise
the person named in the petition of the right to be represented by an attorney and



                                           5
of the right to a jury trial‖ (§ 1026.5(b)(3)), and ―[t]he trial shall be by jury unless
waived by both the person and the prosecuting attorney‖ (§ 1026.5(b)(4)).
        We review de novo questions of statutory construction. (Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) In doing so, ― ‗our
fundamental task is ―to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.‖ ‘ ‖ (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
321.) The advisement and waiver provisions at issue here are nearly identical to
the provisions we construed in Blackburn. (See § 2972, subd. (a).) For reasons
similar to those set forth in Blackburn, we construe the advisement and waiver
provisions in the NGI statute to have the same meaning as the parallel provisions
in the MDO statute.
        To begin, the text of the advisement provision is unambiguous: ―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.‖ (§ 1026.5(b)(3).) The phrase ―the person
named in the petition‖ (ibid., italics added) makes clear to whom the trial court
must direct the advisement. And the coupling of ―the right to be represented by an
attorney‖ with ―the right to a jury trial‖ in section 1026.5(b)(3) indicates that the
trial court must advise the NGI defendant personally even if he or she is
represented by counsel. Like section 2972, subdivision (a), section 1026.5(b)(3)‘s
advisement provision requires the trial court to advise the defendant on the record
in a court proceeding. (See Blackburn, supra, __ Cal.4th at pp. __–__ [pp. 11–
12].)
        The waiver provision — ―The trial shall be by jury unless waived by both
the person and the prosecuting attorney‖ (§ 1026.5(b)(4)) — immediately follows
the advisement provision. When these provisions are read together, it is clear that
―the person‖ in section 1026.5(b)(4) means ―the person named in the petition‖ in
section 1026.5(b)(3). Moreover, because the purpose of advising a defendant of a

                                            6
particular right is to enable the defendant to make an informed choice about
whether to waive that right, the waiver provision is most naturally read to mean
that the choice whether to waive a jury trial belongs to ―the person‖ in the first
instance. (See Blackburn, supra, __ Cal.4th at p. __ [p. 14] [―If the Legislature
had intended to allow counsel to waive a jury trial notwithstanding the defendant‘s
wishes, it would not have needed to require the trial court to expressly advise the
defendant.‖].)
       We are mindful that an NGI commitment extension proceeding necessarily
involves a defendant alleged to represent ―a substantial danger of physical harm to
others‖ ―by reason of a mental disease, defect, or disorder.‖ (§ 1026.5,
subd. (b)(1).) We presume the Legislature was aware that many NGI defendants
lack the capacity to make a knowing and voluntary waiver of their right to a jury
trial, and did not intend courts to obtain a jury trial waiver from such persons. But
we disagree with the Attorney General that courts can infer that nearly every NGI
defendant in a commitment extension proceeding lacks the capacity to make a
knowing and voluntary waiver from the preliminary showing that must accompany
an extension petition. (See § 1026.5, subd. (b)(2).)
       As we explained in Blackburn, ―many persons who suffer from mental
illness or related disorders can understand the nature of legal proceedings and
determine their own best interests.‖ (Blackburn, supra, __ Cal.4th at p. __
[p. 18].) Indeed, any person found ―insane at the time the offense was committed‖
is necessarily a person previously deemed competent to stand trial (§ 1026, subd.
(a)), and the entire premise of the NGI commitment scheme is that the defendant‘s
mental disease, defect, or disorder is treatable (§ 1026.5, subd. (b)(11)) and that
the defendant‘s sanity may be ―recovered fully‖ (§ 1026, subd. (a)) or ―restored‖
(§ 1026.2, subd. (a)). In this case, Tran pleaded not guilty by reason of insanity to
lewd and lascivious conduct after he was found ―in his underwear with his penis

                                          7
exposed standing over a four-year-old child whose pants and underwear had been
pulled down.‖ As Tran has admitted, he struggled with mental illness at the time
of his commitment. But the record suggests that at his most recent commitment
extension trial, Tran understood the nature of the proceeding and was able to
rationally assist counsel in the conduct of his defense. Tran‘s treating psychiatrist,
Dr. Khoury, opined that Tran was ―doing very well‖ and had not recently
exhibited any symptoms. On the basis of this testimony, the trial court said: ―[I]t
sounds to me like Mr. Tran is very close to [conditional release under
supervision].‖
       In view of these considerations, we adopt the same approach here as in
Blackburn: In a section 1026.5, subdivision (b) commitment extension hearing,
the decision to waive a jury trial belongs to the NGI defendant in the first instance,
and the trial court must elicit the waiver decision from the defendant on the record
in a court proceeding. But if the trial court finds substantial evidence that the
defendant lacks the capacity to make a knowing and voluntary waiver, then
control of the waiver decision belongs to counsel, and the defendant may not
override counsel‘s decision. In this context, evidence is substantial when it raises
a reasonable doubt about the defendant‘s capacity to make a knowing and
voluntary waiver, and the trial court‘s finding of a reasonable doubt must appear
on the record.
       In light of our interpretation of the MDO advisement and waiver provisions
in Blackburn, we could hardly reach a different interpretation of the NGI
advisement and waiver provisions. ― ‗It is an established rule of statutory
construction that similar statutes should be construed in light of one another
[citations] and that when statutes are in pari materia similar phrases appearing in
each should be given like meanings.‘ ‖ (People v. Lamas (2007) 42 Cal.4th 516,
525.) ―Two ‗ ―[s]tatutes are considered to be in pari materia when they relate to

                                          8
the same person or thing, to the same class of person[s or] things, or have the same
purpose or object.‖ ‘ ‖ (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1091.)
The MDO and NGI commitment extension schemes both address persons afflicted
by mental disorders. (§§ 1026.5, subd. (a), 2960.) Both have the dual purpose of
―protecting the public while treating severely mentally ill offenders.‖ (Lopez v.
Superior Court (2010) 50 Cal.4th 1055, 1061 [MDO statute]; see People v. Lara
(2010) 48 Cal.4th 216, 228 [NGI statute].) Both statutory schemes provide
procedural protections to defendants borrowed from the criminal context.
(Blackburn, supra, __ Cal.4th at p. __ [pp. 6, 27]; § 1026.5, subd. (b)(7) [―The
[NGI defendant] shall be entitled to the rights guaranteed under the federal and
State Constitutions for criminal proceedings.‖].) And the advisement and waiver
provisions in the two schemes, enacted six years apart, use nearly identical
language. (§§ 1026.5(b)(3), 1026.5(b)(4), 2972, subd. (a).) Because the
advisement and waiver provisions in the two schemes are in pari materia, they
― ‗should be given like meanings.‘ ‖ (Lamas, at p. 525.) Doing so also avoids
equal protection concerns that may arise from treating NGI defendants differently
from MDO defendants with respect to advisement and waiver. (See People v.
Barrett (2012) 54 Cal.4th 1081, 1107.)
       In this case, the record does not indicate that the trial court advised Tran of
his right to a jury trial. Nor did the trial court obtain Tran‘s personal waiver of his
right to a jury trial or find substantial evidence that he lacked the capacity to make
a knowing and voluntary waiver. In these respects, we conclude the trial court
erred under sections 1026.5(b)(3) and 1026.5(b)(4).
       The Court of Appeal held that waiver by counsel must be ―at the NGI‘s
direction or with his or her knowledge and consent‖ unless ―the circumstances
give counsel reason to doubt the NGI‘s competence to determine what is in his or
her best interests.‖ But the Court of Appeal declined to find error in this case,

                                           9
explaining that because counsel waived Tran‘s presence at every pretrial hearing,
the trial court could ―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.‖ The Court of Appeal added that ―the record does not
show that defendant was unaware of his right [to a jury trial]. On the contrary, it
suggests otherwise. This was defendant‘s fourth extension trial. In the appeal
from his second extension order, defendant claimed that he was denied his right to
a jury trial because he did not personally waive it. [Citation.] Moreover, he had a
jury trial on his third extension. [Citation.] [¶] 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.‖
       Unlike the Court of Appeal and our concurring and dissenting colleague
(conc. & dis. opn., post, at pp. 3–5), we decline to infer from these circumstances
that Tran knowingly and voluntarily waived his right to a jury trial. To presume
Tran‘s knowing and voluntary waiver, as the Court of Appeal did, would defeat
the point of the advisement and waiver provisions of sections 1026.5(b)(3) and
1026.5(b)(4). By providing a right to counsel for NGI defendants facing extended
commitment (§ 1026.5(b)(7)), the Legislature enacted section 1026.5(b)(3) and (4)
on the understanding that most defendants would be represented by counsel. If
counsel could waive a jury trial based on the defendant‘s presumed consent when
the record does not expressly indicate the defendant‘s wishes, and even when the
defendant is not present when the waiver occurs, then the Legislature would have
had no need to require the trial court to advise ―the person named in the petition‖
of his or her right to a jury trial or to obtain a waiver from ―the person.‖
(§ 1026.5(b)(3), (4).) Instead, counsel would be authorized to make the waiver
decision, and the onus would be on the defendant to prove lack of consent. But

                                           10
that is not the scheme the Legislature enacted. Section 1026.5(b)(4) makes clear
that ―[t]he trial shall be by jury unless waived by both the person and the
prosecuting attorney.‖ (Italics added.) The statute does not require the defendant
to affirmatively show he or she wanted a jury trial; a jury trial is the default
procedure absent a personal waiver. In sum, the trial court must elicit the waiver
decision from the defendant in a court proceeding unless it finds substantial
evidence that the defendant lacks the capacity to make a knowing and voluntary
waiver, in which case counsel controls the waiver decision.
       We disapprove People v. Powell (2004) 114 Cal.App.4th 1153, 1158
(Powell), and People v. Givan (2007) 156 Cal.App.4th 405, 410–411 (Givan), to
the extent they are inconsistent with this rule.
                                          III.
       As to whether a trial court‘s acceptance of an invalid jury trial waiver under
section 1026.5(b)(4) may be deemed harmless, we hold for the reasons set forth in
Blackburn, supra, __ Cal.4th at p. __ [pp. 23–29] that such error — resulting in a
complete denial of the defendant‘s right to a jury trial on the entire cause in a
commitment proceeding — is not susceptible to ordinary harmless error analysis
and automatically requires reversal. Here, as in Blackburn, we consider it
significant that the statute confers procedural protections that are borrowed
directly from the criminal context. However, as in Blackburn, we note that not all
errors under section 1026.5(b)(4)‘s advisement and waiver provisions require
automatic reversal. A trial court‘s acceptance of counsel‘s waiver without an
explicit finding of substantial evidence that the NGI defendant lacked the capacity
to make a knowing and voluntary waiver may be deemed harmless if the record
affirmatively shows that there was substantial evidence that the defendant lacked
that capacity at the time of defense counsel‘s waiver. Similarly, a trial court‘s
acceptance of a defendant‘s personal waiver without an express advisement of the

                                          11
statutory right to a jury trial may be deemed harmless if the record affirmatively
shows, based on the totality of the circumstances, that the defendant‘s waiver was
knowing and voluntary. In both scenarios, the requirement of an affirmative
showing means that no valid waiver may be presumed from a silent record. (Ante,
at p. 10.) Ultimately, we emphasize that the most certain means of ensuring a
valid waiver is careful compliance with the express advisement and waiver
process explained in this opinion and in Blackburn.
       Here, as in Blackburn, we acknowledge that our decision rejects the rule
previously set forth in Powell, supra, 114 Cal.App.4th 1153 and Givan, supra, 156
Cal.App.4th 405, that counsel invariably controls the decision to waive a jury trial
in an NGI commitment proceeding. In Tran‘s case, the trial court and the parties
may have reasonably relied on that prior law in proceeding with a bench trial
without making a record of Tran‘s personal waiver or his inability to make a
knowing and voluntary waiver at the time of counsel‘s waiver. Accordingly, we
remand this case to the Court of Appeal with directions to remand to the trial court
so that the district attorney may submit evidence, if any, that Tran personally made
a knowing and voluntary waiver or that he lacked the capacity to make a knowing
and voluntary waiver at the time of counsel‘s waiver. If the trial court finds by a
preponderance of the evidence that Tran made a knowing and voluntary waiver, or
if it finds substantial evidence that Tran lacked the capacity to make a knowing
and voluntary at the time of counsel‘s waiver, then the court shall reinstate the
extension order. This approach applies to all cases presently on direct appeal
where the record does not reveal whether an NGI defendant personally waived his
or her right to a jury trial or whether there was substantial evidence that the
defendant lacked the capacity to make a knowing and voluntary waiver at the time
of counsel‘s waiver.



                                          12
                                  CONCLUSION
       For the reasons above, we reverse the judgment of the Court of Appeal
upholding the commitment extension order and remand for proceedings not
inconsistent with this opinion.
                                               LIU, J.


WE CONCUR:

WERDEGAR, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.




                                       13
                CONCURRING AND DISSENTING OPINION
                     BY CANTIL-SAKAUYE, C. J.



       I concur in parts I and II of today‘s opinion, but I respectfully dissent from
the remainder of the opinion concerning the applicability of harmless error review
for the same reasons explained in my opinion in the companion case of People v.
Blackburn (August 17, 2015, S211078) ___ Cal.4th ___ (Blackburn). We are
bound by, and must follow, the harmless error approach set forth in article VI,
section 13 of the California Constitution. Tran‘s right to a jury trial concerning
the extension of his involuntary commitment after pleading not guilty by reason of
insanity (NGI) is based on a state statute, not on any independent state or federal
constitutional ground, and the errors at issue here — the trial court‘s failure to
advise him of his statutory right to a jury trial and obtain a personal waiver of that
right — are not the type of fundamental structural defects that invariably
constitute a ―miscarriage of justice‖ under article VI, section 13, and are capable
of being reviewed to determine whether the errors actually affected the outcome of
the proceeding. Accordingly, as in Blackburn, I conclude that application of an
automatic reversal rule is unwarranted.
       Moreover, under the governing harmless error standard set forth in People
v. Watson (1956) 46 Cal.2d 818, 836, it is not reasonably probable that if the trial
court had personally advised Tran of the right to a jury trial and asked if he wanted
a jury trial, Tran would have requested one over his counsel‘s advice. First, as in

                                          1
Blackburn, Tran was represented by counsel who concluded that it was in Tran‘s
best interest to be tried by the court, not a jury. Second, the record here
demonstrates that, in light of his past experience, Tran was well aware of his right
to a jury trial and consequently that his failure to object to his counsel‘s request for
a court trial realistically reflected a knowing waiver of the right to have the
proceeding decided by a jury. There is simply no reasonable basis for finding the
court‘s failure to personally advise Tran of his right to a jury trial and to elicit an
on-the-record waiver of that right affected the outcome in this case. The
circumstances of this matter only further emphasize how the statutory advisement
and waiver errors at issue here are fully amenable to harmless error review on a
case-by-case basis. Therefore, in my view, the majority‘s remand of this matter to
the lower courts is both unnecessary and unwarranted.
                                   I. BACKGROUND
       Defendant Dawn Quang Tran pleaded NGI to a charge of committing a
lewd and lascivious act on a child under the age of 14 by means of force, violence,
duress, or fear after he sexually assaulted a four-year-old girl, whom he
delusionally believed was an angel. He was committed to Napa State Hospital.
As the Court of Appeal noted below, his commitment was extended three times —
by written waiver in 2005, a bench trial in 2007, and after a jury trial in 2009. The
Santa Clara County District Attorney filed a fourth petition for recommitment,
which Tran again opposed and which is at issue here. At Tran‘s counsel‘s request,
the proceeding was tried by the court. The court did not personally advise Tran of
his right to a jury trial or elicit a waiver of that right from Tran personally.
       At this most recent trial, Tran‘s treating psychiatrist, Dr. Eric Khoury,
M.D., of Napa State Hospital, testified that Tran suffered from chronic bipolar
disorder with severe psychotic episodes. According to Dr. Khoury, Tran
experienced paranoia, delusions, and hallucinations. Dr. Khoury stated that Tran‘s

                                            2
mental disorder had contributed to his underlying crime, but that Tran has only a
vague understanding of how his illness contributed to that crime. The psychiatrist
explained that Tran was being successfully treated with antipsychotic medication,
but that Tran believes he has been cured of his mental illness. Because he believes
he is cured, Tran has sometimes refused to take his medication. For example, two
years previously, Tran refused to take his medication, became psychotic, and was
placed in lockdown. According to Dr. Khoury, Tran does not recognize that his
symptoms are a result of his mental illness; he expressed concern that, if released,
Tran would not continue his medication or participate in outpatient therapy, which
would make him a danger to others. Dr. Khoury did believe, however, that Tran
might qualify for the conditional release program, but he emphasized that Tran
would need to be under supervision. If Tran were released unconditionally, Dr.
Khoury believed Tran would not take his medication.
       Unlike the defendant in Blackburn, Tran presented defense evidence in the
form of Tran‘s own testimony. Tran testified that he acknowledged he had a
mental illness and that he would continue his medication and psychiatric
treatment. He claimed that if he was released unsupervised, he would continue to
take his medication for the rest of his life, and stated he understood that, if he did
not, he might act badly. When asked about the prior occasion in which he refused
to take his medication, became psychotic, and was placed in lockdown, Tran
insisted he had had no symptoms of mental illness in that instance and that he had
stopped his medication because of high blood pressure.
       The trial court sustained the petition and granted a two-year extension of
Tran‘s commitment pursuant to Penal Code section 1026.5.
                                   II. DISCUSSION
       Based on the record in this case, I believe it is clear that the judgment
should be affirmed. As in Blackburn, the errors at issue here involving Tran‘s

                                           3
statutory right to a jury trial are state law error as to which, under the dictates of
article VI, section 13 of the California Constitution, we must conduct ―an
examination of the entire cause, including the evidence,‖ in order to determine
whether ―the error complained of has resulted in a miscarriage of justice.‖ (Cal.
Const., art. VI, § 13.) As I explained in my separate opinion in Blackburn, the
advisement and waiver errors that occurred in this case are by no means the
equivalent of a total denial of the right to jury trial, so the errors do not constitute a
per se ―miscarriage of justice.‖ Instead, as explained in Watson, supra, 46 Cal.2d
818, 836, ―a ‗miscarriage of justice‘ should be declared only 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.‖ Here, it is clear for two separate
reasons that it is not reasonably probable that a result more favorable to Tran
would have been reached in the absence of the trial court errors in failing to advise
Tran personally of his right to a jury trial and to elicit a personal waiver of that
right from Tran.
       First, Tran was represented by counsel who was undoubtedly aware of his
client‘s right to a jury trial, and determined that it was in his client‘s interest to be
tried by the court, rather than a jury. As in Blackburn, it is not reasonably
probable that, in the absence of the trial court errors, Tran would have requested a
jury trial over his counsel‘s contrary advice.
       Second, as the Court of Appeal below noted,1 in light of Tran‘s prior
experience with commitment extension proceedings, he was unquestionably aware

1      The Court of Appeal took judicial notice of its appellate decisions in Tran‘s
prior appeals of his commitment extension proceedings — People v. Tran (Jan.
28, 2009, H031976) and People v. Tran (July 26, 2010, H034743).



                                            4
of his right to a jury trial at the time of the present proceeding. After the district
attorney filed the first commitment extension, Tran filed a written waiver of his
rights, including a written waiver of his right to a jury trial, and submitted the
matter to the trial court. At his second commitment extension, Tran had a bench
trial, then appealed the commitment extension, complaining about the denial of a
jury trial. In that case, the Court of Appeal rejected the claim in an unpublished
decision, holding that Tran‘s counsel properly waived the statutory right to a jury
and that Tran‘s personal waiver was not required; at the same time, however, the
opinion recognized that the governing statute affords a defendant a right to a jury
trial in such an extension proceeding. Thereafter, at his third commitment
extension proceeding, Tran declined to waive a jury trial under Penal Code section
1026.5, subdivision (b)(4), and, in fact, was tried by a jury.
       In this fourth extension proceeding, defendant appeared in court with
counsel and participated in the bench trial without objection or complaint. There
is no reason to conclude that if personally advised by the court of the statutory
right to a jury trial and asked if he wished to invoke or waive that right, Tran
would have requested to be tried by a jury, rather than by the court as his counsel
requested. If Tran had wanted a jury trial for the current commitment proceeding,
he certainly knew that he was entitled to one and how to request one given his
prior commitment proceedings. Under these circumstances, there is no basis to
infer that defendant was ignorant of his right to a jury trial, wanted a jury trial, or
that his counsel vetoed defendant‘s wish for a jury trial.
       Accordingly, it appears clear that the trial court‘s error in failing to
personally advise Tran of his right to a jury trial and to obtain a personal waiver of
that right did not affect the outcome. With respect, today‘s decision to remand this
matter to the lower courts to determine ―by a preponderance of the evidence



                                           5
[whether] Tran made a knowing and voluntary waiver‖ (maj. opn., ante, at p. 12),
is unnecessary and unwarranted.
      For the foregoing reasons, I would simply affirm the judgment.
                                                    CANTIL-SAKAUYE, C. J.


I CONCUR:

CHIN, J.




                                        6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Tran
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 216 Cal.App.4th 102
Rehearing Granted

__________________________________________________________________________________

Opinion No. S211329
Date Filed: August 17, 2015
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Gilbert T. Brown

__________________________________________________________________________________

Counsel:

Carl A. Gonser, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Jeffrey M. Laurence, Acting Assistant Attorney General, Laurence K. Sullivan,
Catherine A. Rivlin and Karen Z. Bovarnick, Deputy Attorneys General, for Plaintiff and Respondent.




                                                   1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Carl A. Gonser
P.O. Box 151317
San Rafael, CA 94915-1317
(415) 459-3559

Karen Z. Bovarnick
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5550




                                               2
