Filed 4/23/13
                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT


THE PEOPLE,                                          H037207
                                                    (Santa Clara County
        Plaintiff and Respondent,                    Super. Ct. No. BB304666)

            v.

BRUCE LEE BLACKBURN,

        Defendant and Appellant.



                                      I. INTRODUCTION
        Under the Mentally Disordered Offender Act (the Act) (Pen. Code, § 2960 et
seq.), the state can commit a mentally disordered offender (MDO) to a hospital for
treatment for a specified period of time as a condition of parole, and it can extend the
commitment if at the end of the period the MDO poses a danger to others due to his or
her mental disorder. Under the Act, the MDO has the right to a jury trial. The Act
requires that the court “advise the [MDO] . . . of the right to a jury trial” and conduct a
jury trial “unless waived by the person and the district attorney.” (Pen. Code, §§ 2966,
subd. (b); 2972, subd. (a).)1
        Defendant claims that an MDO has the right to decide whether to waive the right
to a jury trial, and that the waiver provision requires a jury trial unless the MDO
personally waives it. The Attorney General claims that counsel has exclusive control
over whether to waive a jury trial and can do so even over the MDO‟s objection.

        1
            All unspecified statutory references are to the Penal Code.
       We hold that the waiver provision does not require a personal waiver or give
counsel exclusive control. Rather, counsel may waive a jury at the MDO‟s direction or
with the MDO‟s consent; and when there is cause to doubt the MDO‟s capacity to
determine whether a bench or jury trial is in his or her best interests, counsel can make
the decision even over the MDO‟s objection. Finally, to protect the right to a jury trial
and ensure compliance with the statute, we further hold that when the court conducts a
bench trial, the record must contain an express waiver and affirmatively establish the
validity of that waiver.
                                II. STATEMENT OF THE CASE
       Defendant Bruce Lee Blackburn appeals from an order extending his commitment
to Atascadero State Hospital (ASH) as an MDO. (§§ 2970, 2972.) He claims that the
court erred in conducting a bench trial on the petition to extend his commitment and that
the error violated his right to a jury trial.
       We affirm the extension order.
                                 III. PROCEDURAL HISTORY
       In 2004, defendant was convicted of first degree burglary and false imprisonment
and sentenced to prison.2 (§§ 459, 460, 236, 237.) In 2006, defendant was deemed an
MDO and committed to ASH for treatment as a condition of parole. (§ 2962.)
Thereafter, defendant‟s commitment was extended a number of times. (§§ 2962, 2970,
2972.) Before the last extension expired on October 19, 2011, the Santa Clara County
District Attorney filed a petition to extend defendant‟s commitment once again. On July




       2
         The record reveals that defendant entered the home of an 85-year-old woman at
night. She awoke to find him naked and lying on top of her. He restrained her with his
legs and kept her pinned down by pulling her hair. The woman managed to escape, and
when police entered, they found defendant sitting naked on the toilet, eating pork chops
and speaking incoherently.
                                                2
19, 2011, after a bench trial, the court sustained the petition and extended defendant‟s
commitment to October 19, 2012.
                              IV. THE EXTENSION HEARING
       At the extension trial, Kevin Perry, Ph.D., testified as an expert in the diagnosis
and treatment of mental disorders and risk assessment. He was not a member of
defendant‟s treatment team but met with defendant for a forensic evaluation and later
drafted a report recommending an extension of his commitment. Dr. Perry testified that
defendant suffers from “schizoaffective disorder, bipolar type,” which defendant
manifests by being paranoid that other patients are stealing from him and having
grandiose delusions that he is the son of God and that he can communicate over long
distances without any technology. Based on recent hospital progress reports and his own
evaluation, Dr. Perry opined that defendant‟s disorder is not in remission. He noted that
during the evaluation, defendant seemed to understand its purpose, but he exhibited
“thought disorganization,” in that his thinking was not logical or internally consistent,
and he would jump from topic to topic. Defendant also expressed some persecutory
delusional thoughts that hospital authorities were taking things from him.
       Dr. Perry reported that defendant had been under an involuntary medication order
at ASH, and even though that order had expired, defendant generally continued to take
his medication. He was transferred to Coalinga State Hospital, and for a time,
defendant‟s medication regimen was stopped because he developed some medical
complications.
       Dr. Perry reported that defendant realizes that it is good for him to attend hospital
group therapy sessions, and he does so about 70 percent of the time.
He further explained that before being considered for release, defendant would have to
develop a wellness and recovery plan consisting of strategies to help him identify the
things that trigger his symptoms and manage those symptoms and his behavior in the

                                              3
community. Defendant had completed some work on a plan while at ASH, but as of the
date of the hearing, he had not completed an “appropriate” and “viable” plan.
       In sum, Dr. Perry opined that defendant posed a risk of harm to others due to his
mental disorder and history of violent behavior. He noted that within the past few weeks,
defendant had exhibited delusional and irrational thinking and impulsive and bizarre
behavior similar to that which had accompanied his commitment offense. For this
reason, Dr. Perry did not believe that defendant would do better in a less restrictive
placement.
                                     V. CONTENTIONS
       Defendant contends the court erred in failing to advise him of the right to a jury
trial and conducting a bench trial. Initially, the record did not reflect a jury advisement or
an express waiver. On our own motion, we directed the trial court to settle the record
concerning whether there were any unreported, pretrial discussions about jury
advisements and waivers. (See Cal. Rules of Ct., rules 8.155 & 8.137.)
       In its settled statement, the court related that “[i]t was the custom and practice of
[the Honorable Gilbert T. Brown] to call the mental health calendar each Friday on the
record. Prior to calling the calendar, all cases set were discussed in chambers.”
Defendant‟s civil commitment was first called on April 6, 2011. At that time, counsel
was appointed, and counsel waived defendant‟s presence because he was at Atascadero
State Hospital. The case called again on April 29, 2011, then May 13, and then June 3.
At each hearing, counsel waived defendant‟s presence. “On June 3, 2011, [defense
counsel] stated in chambers that [defendant] was not willing to submit to an extension of
his commitment to the Department of Mental Health and wanted a trial. He also stated
that he, counsel, was requesting a court trial rather than a jury trial. The People were in
agreement with having a court trial.” Trial was set for July 19, 2011.



                                              4
       Given the settled statement, defendant contends that counsel‟s waiver was
ineffective because section 2972 requires an MDO‟s personal waiver. Relying primarily
on People v. Otis (1999) 70 Cal.App.4th 1174 (Otis) and People v. Montoya (2001) 86
Cal.App.4th 825, 829 (Montoya), the Attorney General argues that the statute does not
require an MDO‟s personal waiver and instead gives counsel exclusive control over
whether to have a bench or jury trial.
                                      VI. MOOTNESS
       The extension period of defendant‟s commitment has expired, and therefore the
propriety of the court‟s order is now moot. Accordingly, it may not be necessary to
address the parties‟ diametrically opposing legal claims concerning the validity of
counsel‟s waiver and the 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, 1075, italics omitted.)
       Moreover, we continually see appeals from commitment orders where, as here, the
record does not reveal an advisement or an express waiver and where, as here, the
defendant and the Attorney General assert the same competing claims. Moreover, in our
view, the relevant published case law does not provide a clear, comprehensive, and
definitive resolution of these claims. For these reasons, we exercise our discretion to
address the parties‟ claims. (In re Conservatorship of Person of John L. (2010) 48
Cal.4th 131, 142, fn. 2 (John L.); e.g., Conservatorship of Wendland (2001) 26 Cal.4th
519, 524, fn. 1; People v. Harris (1993) 14 Cal.App.4th 984, 990; Cramer v. Gillermina
R. (1981) 125 Cal.App.3d 380, 385.)




                                              5
           VII. 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 Act
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.)
       As noted, 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.” 3 To
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
       3
           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
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.”
                                                 6
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).)
            VIII. PERSONAL WAIVER VERSUS COUNSEL’S EXCLUSIVE CONTROL
        As noted, defendant claims the Act requires an MDO‟s personal waiver, and the
Attorney General claims that counsel has exclusive control over whether to have a bench
or jury trial.
                                   A. Personal Waiver
        In Otis, supra, 70 Cal.App.4th 1174 and Montoya, supra, 86 Cal.App.4th 825, the
courts linked the issues raised by the two claims.4 The courts concluded that an MDO‟s
personal waiver is not required for two reasons: the statutory language does not
expressly say so; and counsel must be able waive on behalf of an MDO who lacks the
capacity to determine what is in his or her best interests. In both cases, the court upheld a
waiver by counsel because the MDO lacked the capacity to make a reasoned decision.
        In Otis, 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. On appeal the defendant claimed that the
language requiring a jury trial “unless waived by both the person and the district
attorney,” meant that only the person—i.e., the MDO—could waive the jury trial. (Otis,
supra, 70 Cal.App.4th at p. 1176.)
        In a brief opinion, the court disagreed. It found “nothing in the requirement that
the waiver must be by „the person‟ precludes the person‟s attorney from acting on his

        4
          Otis dealt with section 2966, subdivision (b) and Montoya dealt with section
2972, subdivision (a), but both sections require the court to advise the MDO of the right
to a jury trial and conduct a jury trial “unless waived by the person and the district
attorney.”
                                              7
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. 1177, italics added; see
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 Montoya, supra, 86 Cal.App.4th 825, counsel waived a jury. Although the
defendant did not object, he claimed on appeal that his personal waiver was required. (Id.
at pp. 828-829.) In concluding otherwise, the court followed Otis, agreeing that the
statutory language did not expressly require a personal waiver or clearly preclude a
waiver by counsel and that the Legislature could not have intended to require a personal
waiver and thereby deny counsel the authority to act on behalf of an incompetent MDO.
(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 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.)

                                              8
       We agree with these courts‟ view of the statutory language. When engaging in
statutory construction, “[w]e begin with the statutory language because it is generally the
most reliable indication of legislative intent. [Citation.] If the statutory language is
unambiguous, we presume the Legislature meant what it said, and the plain meaning of
the statute controls. [Citation.]” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th
201, 211.) If the language is susceptible of multiple interpretations, we may look to a
variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part. (People v.
Woodhead (1987) 43 Cal.3d 1002, 1008.)
       The waiver provision does not expressly require a “personal” waiver by the MDO.
And the term “the person” in the phrase “unless waived by both the person and the
district attorney” (§§ 2966, subd. (b); 2972, subd. (a)) does not automatically or
necessarily convey the notion that a waiver is effective only when “personally” made by
the MDO. Nor does the waiver provision clearly reflect a legislative intent to impose
such a limitation or preclude a waiver by counsel on behalf of “the person.” We too
observe that the Legislature knows how to require a personal waiver, and when it has
intended to do so, it has used clear and unambiguous language. (E.g., § 861, subd. (a)(1)
[requiring personal waiver of statutory right to continuous preliminary examination];
§ 977, subd. (b)(1) [same re waiver of presence at arraignment]; Welf. & Inst. Code,
§ 1801.5 [same re right to a jury in trial to extend juvenile detention].)
       Furthermore, interpreting the language to exclude waivers by counsel results in
consequences that, in our view, are illogical and anomalous and therefore, to be avoided.
(People v. Martinez (1995) 11 Cal.4th 434, 448.)
       First, we note that for a variety of reasons, MDOs being treated in state hospitals
often choose not to appear until the day of trial, courts do not automatically order them

                                              9
transported to court for every pretrial hearing, and counsel routinely waive the
defendant‟s 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 MDO‟s behalf in his or her absence. We cannot
conceive of a logical reason to prohibit counsel from waiving a statutory right to a jury
trial at the MDO‟s direction or with the MDO‟s express authorization but in his or her
absence and instead compel the court to order the MDO‟s transportation and presence
solely to secure his or her personal waiver. This is especially so because, as noted,
counsel can waive a client‟s more fundamental state constitutional right to a jury in civil
actions. (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].)
       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 (1992) 5 Cal.App.4th 963, 967-968 (Angeletakis) [NGI commitment]; People
v. Moore (2010) 50 Cal.4th 802 [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 and Montoya observe, some MDOs, like the defendants
in those cases, may be so delusional or otherwise affected by their mental disorders that

                                              10
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. If 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 by preventing counsel from waiving a jury on his or her behalf and mechanically
require the court to conduct a jury trial or give the incompetent defendant veto power
over counsel‟s informed determination.
       In our view, 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. For that reason,
we consider it unreasonable to infer such a restrictive and exclusive legislative intent
from the statutory language. (Cf. Conservatorship of Mary K. (1991) 234 Cal.App.3d
265, 272 [rejecting claim that counsel‟s waiver at conservatee‟s direction was ineffective
because personal waiver was required].)
       In construing statutes, “[w]e may not under the guise of construction, rewrite the
law or give the words an effect different from the plain and direct import of the terms
used.” (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th
342, 349; accord Estate of Griswold (2001) 25 Cal.4th 904, 917.) Nor may we insert
requirements or limitations that would cause the statute to conform to a presumed intent
that is not otherwise manifest in the existing statutory language. (Citizens to Save
California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 747-
748, Tain v. State Bd. of Chiropractic Examiners (2005) 130 Cal.App.4th 609, 617.)
       Given our analysis of the statutory language, policy considerations, and potential
consequences, we decline to insert a personal waiver requirement into the statute.

                                             11
                               B. Counsel’s Exclusive Control
       Although that provision does not invariably require an MDO‟s personal waiver
and is broad enough to permit a waiver by counsel, it does not automatically follow, as
the Attorney General claims, that counsel has exclusive control over the jury decision.
To determine whether counsel does, we return to the waiver provision.5
       The statutory language does not expressly confer such exclusive control; nor does
it expressly or implicitly bar MDO‟s from controlling the decision. Moreover, the waiver
provision must be read together with the advisement provision (see Los Angeles 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 MDOs from deciding whether to waive a jury trial. On
the contrary, the two provisions contemplate that MDOs can make the decision and
expressly provides for them to do so.
       Section 2972, subdivision (a), provides that the court “shall advise the
person . . . of the right to a jury trial.” This language imposes a mandatory duty on the
court.6 (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.




       5
          We observe that the court‟s custom and practice of obtaining waivers from
counsel in chambers off the record may well be based on the view that counsel has
exclusive authority. If counsel does, then the court‟s practice represents practical,
efficient, and convenient way to resolve the jury issue.
       6
         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].)
                                             12
       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 jury trial unless
waived by “the person.” Although, as discussed above, the phrase “waived by the
person” must be construed to permit a waiver by “the person‟s” attorney, the phrase
unambiguously refers to a waiver by “the person”—i.e., the MDO. Thus, the purpose
and function of this mandatory advisement are self-evident: to inform the MDO 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].)
       We observe that if the Legislature had intended to give counsel exclusive control,
it could have done so unambiguously 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 that 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 meaningful function, and there would have been no need to make the
advisement mandatory. For this reason, it is not reasonable to infer 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].)

                                             13
       In short, just as we decline to limit the phrase “unless waived by the person” by
inferring that only an MDO 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
“captain of the ship” rule in civil litigation does not govern whether counsel has exclusive
authority to waive a jury in MDO proceedings.
       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.)

                                               14
       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.7
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.
       “ „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 MDO 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
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

       7
         Civil commitment trials are initiated by a petition independently of a pending
action and are “of a character unknown at common law.” (People v. Rowell (2005) 133
Cal.App.4th 447, 451.) They are neither actions at law nor suits in equity and are instead
considered a “special proceeding.” (Code Civ. Proc., §§ 21-23; see Tide Water Assoc.
Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 822; Le Louis v. Superior Court (1989)
209 Cal.App.3d 669, 678; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 65,
subd. 20, pp. 139-140; e.g., People v. Yartz (2005) 37 Cal.4th 529, 535 [SVP
commitment trial under Welf. & Inst. Code, § 6603]; People v. Masterson (1994) 8
Cal.4th 965, 974 (Masterson) [competence trial under § 1369]; In re Gary W. (1971) 5
Cal.3d 296, 309 [trial extending juvenile commitment under Welf. & Inst. Code, § 1800];
In re De La O (1963) 59 Cal.2d 128, 150 [narcotics addict commitment trial under former
§ 6450]; Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1685, fn. 7
[commitment of mentally retarded person under Welf. & Inst. Code, § 6500; Montoya,
supra, 86 Cal.App.4th at p. 829 [MDO commitments under §§ 2966 & 2972].)
                                              15
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, 115, 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, counsel derives it not
so much from the “captain of the ship” rule but from the nature of MDO proceedings and
the jury right at issue.
       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.) 8

       8
         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
                                               16
       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 waive 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 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.)

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.
                                              17
       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 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 the defendant from making reasoned decisions concerning what is in his or her
best interests, including whether to request or waive a jury trial. In other words, it is

                                              18
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 cites Masterson to support the claim that counsel has
exclusive control in MDO proceedings. Presumably, the argument is that, like
defendants whose competence has been questioned or persons diagnosed with mental
retardation, MDOs 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 MDO 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 a mentally retarded person is 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 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 MDO trial does not involve a determination of
competency. Its purpose is to determine whether an MDO is currently dangerous due to a

                                              19
severe mental disorder that is not in remission. (§ 2970.) To be sure, that purpose
mirrors that 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 MDOs. 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.
(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

                                             20
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.)9




       9
          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 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.)
                                              21
       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, namely, that MDOs are
competent to comprehend and control the jury decision. Moreover, those requirements
further distinguish Masterson and Barrett because the statutes in those cases do not have
similar requirements and instead require that a jury be requested. (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 (2003) 110 Cal.App.4th 1577 the
court recognized that a defendant has the statutory right to waive counsel and represent
himself in a trial to extend his commitment as an MDO. (Id. at pp. 1587-1592.)



                                             22
       In addition to Masterson, the Attorney General relies on Otis and Montoya as
support for counsel‟s exclusive control. Again, however, the Attorney General‟s reliance
is misplaced.
       We understand Otis and Montoya in light of the specific facts and issues in those
cases. (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”].) As noted, in Otis, the court upheld counsel‟s decision to waive a jury trial over
the defendant‟s objection. However, the defendant was delusional, and the court opined
that he was not capable of making a reasoned decision. (Otis, supra, 70 Cal.App.4th at
pp. 1175-1176.) In Montoya, the court also upheld counsel‟s waiver. However, it
opined, in essence, that because the defendant‟s mind was not functioning normally, he,
like the defendant in Otis, was incapable of making a reasoned decision between a bench
and jury trial. (Montoya, supra, 86 Cal.App.4th at p. 831.)
       Given facts in Otis and Montoya, we read them for the proposition 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. Neither case, however, should 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. This is especially
so because neither case addressed the purpose and function of the mandatory jury
advisement.
       We review another case that is pertinent to our discussion—Powell, supra, 114
Cal.App.4th 1153—because it involved a “special proceeding” to extend the commitment
of a defendant who had been found not guilty by reason of insanity (NGI) under
section 1026, which also provides the right to a jury trial and requires a jury advisement



                                             23
and a jury trial “unless waived by both the person and the prosecuting attorney.”
(§ 1026.5, subds. (b)(3) & (b)(4).)
       In Powell, the defendant objected to counsel‟s waiver and requested a jury, and
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 the statute required a personal
waiver. (Powell, supra, 114 Cal.App.4th at pp. 1157-1158.)
       In upholding counsel‟s waiver over the NGI‟s objection, 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.” (Powell,
supra, 114 Cal.App.4th at p. 1158.) The court then pointed out that the defendant had
been found insane twice, medical staff had diagnosed him with paranoid schizophrenia,
and there was no evidence he had regained his sanity. The court further noted that the
defendant had a history of violence, believed certain people should be killed, and sought
release to do so. (Id. at p. 1158.) The court asked, “Can such a person intelligently
invoke or waive the right to a jury trial? Is such a person competent to meaningfully
understand who should make the determination of whether his commitment should be
extended?” (Ibid.) The court answered, “Common sense dictates that appellant should
not be able to veto his attorney‟s decision to waive a jury. The record demonstrates that
appellant was suffering from a severe mental disorder. On the day of the purported
demand for jury, appellant was medicated, 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 Powell court cited Angeletakis, supra, 5 Cal.App.4th
963. 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

                                            24
competent at a trial to extend his or her commitment. (Id. at pp. 967-968; Juarez v.
Superior Court (1987) 196 Cal.App.3d at pp. 931-932 [same]; cf. People v. Moore (2010)
50 Cal.4th 802 [trial on commitment as SVP does not require the defendant‟s
competence].) As the court explained, “Angeletakis will be confined and receive
treatment for his mental condition whether his commitment is extended under section
1026.5 or such proceedings are suspended under section 1368. While we appreciate the
distinction between mental competence to stand trial and dangerousness to others due to a
mental disease, defect, or disorder, we think the interests of a person facing a
commitment extension are adequately protected by competent counsel and the other
procedural safeguards afforded him. Requiring the court to suspend proceedings until the
committee is able to understand the nature of the proceedings and assist in the conduct of
his „defense‟ adds minimal protection in this context, especially when balanced against
the administrative burdens involved.” (Angeletakis, supra, 5 Cal.App.4th at pp. 970-971,
fn. omitted.)
       The Powell court read Angeletakis “for the principle that an NGI committee who
is not mentally competent must act through counsel. If the person is not competent to
waive jury at the extension trial, his or her attorney may waive jury on his or her behalf.
That is the case here.” (Powell, supra, 114 Cal.App.4th at p. 1158, second italics added.)
The Powell court also relied on Otis, agreeing that the Legislature could not have
intended to leave the jury decision in the hands of a person incapable of determining what
was in his or her best interests. (Id. at p. 1159.)
       As our review reveals, the holding in Powell—i.e., that counsel had the authority
to waive a jury over the NGI‟s objection—rested on the particular circumstances of that
case which demonstrated that the NGI lacked the capacity to determine what was in his
own best interests.



                                              25
       Otis, Montoya, and Powell are strikingly similar in holding that when an MDO‟s
or NGI‟s mental capacity is reasonably called into question, he or she must act through
counsel, and counsel controls the jury decision. In this regard, Otis, Montoya, and Powell
reflect the Masterson-Barrett rationale for recognizing counsel‟s exclusive authority.
       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
waiver provision and the scope of counsel‟s authority. The provision does not require an
MDO‟s personal waiver or give counsel exclusive control over whether to have a jury
trial. Nor does the nature of an MDO proceeding reasonably warrant giving counsel such
exclusive control. Rather, counsel can waive a jury trial at the MDO‟s direction or with
the MDO‟s knowledge and consent; and counsel can do so even over an MDO‟s
objection when the circumstances cast reasonable doubt on the MDO‟s mental capacity to
determine what is in his or her best interests.
       We now return to defendant‟s claim that the court committed reversible error in
conducting a bench trial.
                                 C. Error and Prejudice
       The propriety of defendant‟s bench trial turns on the validity of counsel‟s waiver,
which in turn hinges on whether defendant knew he had the right to a jury trial and
directed or knowingly consented to counsel‟s waiver.10
       The court did not advise the defendant of his right to jury trial on the record before
the bench trial; and we can reasonably infer that it did not do so off the record because
defendant first appeared in court on the day of the trial. The court‟s custom and practice
of obtaining waivers off the record resulted in a record that is silent concerning whether
counsel discussed the jury issue with defendant, or if he did, whether defendant agreed to
       10
          The record does not establish that during the pretrial period defendant was so
affected by his mental disease as to raise doubt about his capacity to determine what was
in his own best interests.
                                              26
have a bench trial or wanted a jury trial instead. Nevertheless, on appeal, we are bound
by established rules of appellate review.
       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).)
       Moreover, “[i]t is a 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; 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”].)
       Although it does not appear that the court advised defendant as required, counsel
waived defendant‟s presence at every pretrial hearings, effectively precluding compliance
with the statutory duty to advise. However, when counsel waives an MDO‟s presence,

                                              27
the court can 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).)” (John L., supra, 48 Cal.4th at pp. 151-152, 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., Mary K, supra, 234 Cal.App.3d at p. 272
[where no evidence to the contrary, court presumed counsel discussed jury waiver with
client before waiving on client‟s behalf].)11
       Finally, we note that this was not the first extension of defendant‟s MDO
commitment, and the record does not suggest that defendant was unaware of his right to a
jury trial notwithstanding the lack of a judicial advisement. Nor does the record suggest
that defendant was unaware that counsel intended to waive a jury and had done so or that
defendant wanted a jury trial and objected (or would have objected) to counsel‟s waiver.



       11
           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 to read and sign. (See People
v. Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form proper substitute for
judicial advisement].)


                                                28
Here, any such inferences would be pure speculation on our part.12 Moreover, “[a]s 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.)
       Last, it is settled that the erroneous denial of a statutory right to a jury trial is
subject to harmless-error review under the Watson13 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.)
       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.)
       Dr. Perry‟s testimony constituted overwhelming evidence to support a finding that
defendant posed an unreasonable risk of harm to others due to his mental disorder and
history of violent behavior. Among other things, he reported that within the previous few
weeks, defendant had exhibited delusional and irrational thinking and impulsive and


       12
          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.)
       13
            Watson, supra, 46 Cal.2d 818, 836.
                                               29
bizarre behavior similar to that which had accompanied his commitment offense.
Defendant did not present an expert to testify that he was not currently dangerous. Nor
did he present evidence that contradicted or impeached Dr. Perry. Moreover, defendant
does not claim that Dr. Perry‟s opinion was speculative or that his testimony does not
constitute substantial evidence.
       Under the circumstances and even if we assume error in failing to advise and
conducting a jury trial, we do not consider it reasonably possible, let alone reasonably
probable, that defendant would have obtained a more favorable result had the court
expressly advised him and conducted a jury trial. (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]; cf. People v. McClellan (1993) 6 Cal.4th 367, 377, 378 [failure to
advise about sex registration requirement harmless].)
                    VII. PROTECTING THE RIGHT TO A JURY TRIAL
       As our discussion reveals, the court‟s custom and practice in commitment cases
resulted in a record that does not affirmatively establish the validity of counsel‟s waiver
and the ensuing bench trial. It does not show whether defendant knew he had the right to
jury trial and whether counsel waived at defendant‟s direction or with his consent. In
fact, the record initially did not even reveal that counsel expressly waived a jury trial.
The silence of the record, together with the presumptions that guide appellate review and
the harmless error test, made defendant‟s appellate burden an insurmountable hurdle and
effectively assured affirmance regardless of whether defendant was aware of his right and
whether counsel‟s waiver was valid. Indeed, where, as here, there is overwhelming
evidence to support the extension of a commitment, a reviewing court need not even
concern itself with whether the MDO knew about the right to a jury trial or whether
counsel waived jury without the MDO‟s knowledge and consent or over the MDO‟s



                                              30
objection because any alleged errors can easily be deemed harmless under Watson.
However, we find this troubling.
         The United States Supreme Court has repeatedly recognized that civil
“commitment for any purpose constitutes a significant deprivation of liberty that requires
due process protection.” (Foucha v. Louisiana (1992) 504 U.S. 71, 80.) “Moreover, it is
indisputable that involuntary commitment to a [psychiatric] hospital after a finding of
probable dangerousness to self or others can engender adverse social consequences to the
individual. Whether we label this phenomen[on] „stigma‟ or choose to call it something
else is less important than that we recognize that it can occur and that it can have a very
significant impact on the individual.” (Addington v. Texas (1979) 441 U.S. 418, 425-426;
People v. Allen (2007) 42 Cal.4th 91, 98.)
         Given the similar liberty and dignity interests implicated at stake in an involuntary
commitment, the right to choose the trier of fact is no less valuable to an MDO than it is
to a criminal defendant. Moreover, although no constitutional provision guarantees an
MDO the right to a jury trial, the Legislature nevertheless considered the right important
enough to require a judicial advisement and a jury trial unless validly waived.
         In our view, the purpose of these mandates is frustrated and an MDO‟s right to a
jury trial is undermined when together a silent record, general procedural rules and
presumptions on appeal, and the harmless-error test permit a reviewing court to affirm a
commitment and say, in essence, we need not know, and it does not matter whether the
MDO was advised or whether a jury trial was validly waived. Rather, compliance with
the statutory mandates matters even when there is overwhelming evidence to support a
commitment order and the failure to comply with the statute can been deemed harmless
error.
         The best assurance of compliance is a record that reflects it. Accordingly, we
consider it appropriate to adopt a rule requiring the court and the parties to make a record

                                              31
that affirmatively establishes the propriety of a bench trial. (See McDonald v. Antelope
Valley Community College Dist. (2008) 45 Cal.4th 88, 99-100 [recognizing inherent
judicial authority to create procedural rules when necessary].)14 In particular, we hold
that if the court conducts a bench trial and the MDO did not personally waive the right to
a jury, the record must show that the court advised the MDO of the right to a jury or, if
the court was unable to do so, that the MDO was made aware of the right before counsel
waived it. The record must also show that in waiving a jury trial, counsel acted at the
MDO‟s direction or with the MDO‟s knowledge and consent or that there were
circumstances before the court that reasonably raised doubt concerning the defendant‟s
capacity to determine what was in his or her own best interests.
       Finally, a procedural rule requiring a clear and explicit record concerning the
advisement and waiver requirements imposes little if any additional burden on the court
and parties. What slight burden it might impose is clearly outweighed by the importance
the Legislature has attached to an MDO‟s right to a jury trial and the statutory
requirements designed to protect it. In this regard we note that the court may still resolve
the jury issue in accordance with its custom and practice. At some point, however, the
court and parties must state on the record the facts establishing the MDO‟s awareness of
the right to a jury and the validity of counsel‟s waiver. Alternatively, the record must
contain an advisement and waiver form signed by the MDO.15


       14
           E.g., People v. Sumstine (1984) 36 Cal.3d 909, 914 [creating a rule of
procedure permitting a defendant to collaterally attack the validity of a prior felony
conviction on the ground he was not advised of, or did not knowingly and voluntarily
waive, his rights in the prior plea proceeding]; Bunnell v. Superior Court (19175) 13
Cal.3d 592, 605 [creating procedural rule requiring advisements in all submission cases];
In re Yurko (1974) 10 Cal.3d 857, 863-864 [creating rule requiring advisement about the
consequences of admitting prior conviction allegation].)
       15
           We note that recently, during oral argument in a similar MDO case, the
Attorney General conceded that that it would be helpful in resolving similar disputes if
the parties or the court would express on the record the status of the defendant‟s mental
                                             32
                                    VIII. DISPOSITION
       The order extending defendant‟s MDO commitment is affirmed.



                                           ______________________________________
                                                      RUSHING, P.J.




I CONCUR:




____________________________________
           PREMO, J.




acuity, his understanding of his jury trial right, and his ability to comprehend and
cooperate with his attorney‟s efforts.
                                             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.) A trial
court's judgment or order is presumed correct. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) " '. . . All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown. This is
not only a general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.' [Citations.]" (Ibid.)
       On the appellate record before us, we must presume that appellant knew of his
right to a jury trial and he consented to a court trial. Consequently, it is unnecessary to
decide whether counsel may waive a competent client's right to jury trial under the
Mentally Disordered Offender (MDO) Act only at the client's direction or with the
client's consent. (See Pen. Code, §§ 2970, subd. (b), 2972, subd. (a).) As the U.S.
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.)
       Further, it is not apparent that appellate courts enjoy general supervisory authority
over superior courts' practice and procedure. "The judicial power of this State is vested
in the Supreme Court, courts of appeal, and superior courts, all of which are courts of
record." (Cal. Const., art. VI, § 1.) The California Constitution makes the Judicial
Council, which is chaired by the Supreme Court's Chief Justice, responsible for adopting
"rules for court administration, practice and procedure" not "inconsistent with statute."
(Cal. Const., art. VI, § 6, subd. (d); see Cal. Rules of Court, rule 10.1.)
       By statute, "[e]very court may make rules for its own government and the
government of its officers not inconsistent with law or with the rules adopted and
prescribed by the Judicial Council." (Gov. Code, § 68070; see Code Civ. Proc., § 575.1
[promulgation of local court rules].) The Legislature has encouraged the "Judicial
Council . . . to adopt rules to provide for uniformity in rules and procedures throughout
all courts in a county and statewide." (Gov. Code, § 68070, subd. (b).)
       Some of the powers of courts are set out by statute. (See e.g. Code Civ. Proc.,
§§ 128, subd. (a) [courts' powers], 177 [judicial officers' powers].) Code of Civil
Procedure section 187 provides: "When jurisdiction is, by the Constitution or this Code,
or by any other statute, conferred on a Court or judicial officer, all the means necessary to
carry it into effect are also given; and in the exercise of this jurisdiction, if the course of
proceeding be not specifically pointed out by this Code or the statute, any suitable
process or mode of proceeding may be adopted which may appear most conformable to
the spirit of this code."
       "Courts have inherent power, as well as power under section 187 of the Code of
Civil Procedure, to adopt any suitable method of practice, both in ordinary actions and
special proceedings, if the procedure is not specified by statute or by rules adopted by the
Judicial Council." (Tide Water Associated Oil Co. v. Superior Court of Los Angeles
County (1955) 43 Cal.2d 815, 825, fn. omitted.) " 'In addition to their inherent equitable
power derived from the historic power of equity courts, all courts have inherent
supervisory or administrative powers which enable them to carry out their duties, and
which exist apart from any statutory authority. [Citations.] . . .' [Citation.]" (Rutherford
v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.)
       On occasion, the California Supreme Court has invoked its "inherent authority" to
establish statewide judicial rules or procedures. In In re Roberts (2005) 36 Cal.4th 575,
the Supreme Court explained that it "has inherent authority to establish 'rules of judicial

                                                2
procedure to be followed by superior courts' in exercising their territorially unlimited
jurisdiction over habeas corpus petitions. ([Griggs v. Superior Court (1976) 16 Cal.3d
341,] 347 . . . ; see also People v. Pena (2004) 32 Cal.4th 389, 398-399, 403 . . . [in the
exercise of supervisory power over state courts, directing the Court of Appeal to refrain
from utilizing an oral argument waiver notice]; People v. Burgener (2003) 29 Cal.4th
833, 861 . . . [in the exercise of supervisory power over state criminal procedure,
prohibiting trial courts from making race-conscious assignments of prospective jurors];
People v. Engelman (2002) 28 Cal.4th 436, 449 . . . [in the exercise of supervisory power
over the courts, directing trial courts to refrain from instructing juries pursuant to
CALJIC No. 17.41.1 on the obligation of jurors to advise the court of certain juror
conduct].)" (Id. at p. 593; see In re Reno (2012) 55 Cal.4th 428, 522 [given the Supreme
Court's "unique role in overseeing the imposition of capital punishment in this state, [fn.]
[the Supreme Court] a fortiori possesses inherent power to control potential abuses of the
writ process"].) The court has also recognized its own supervisory authority over state
criminal procedure. (See In re Podesto (1976) 15 Cal.3d 921, 938 [high court held,
pursuant to its supervisory authority over state criminal procedure, that trial courts should
render a brief statement of reasons in support of an order denying a motion for bail on
appeal]; People v. Kelly (2006) 40 Cal.4th 106, 110 [in the exercise of its "supervisory
power over the courts of this state," California Supreme Court directed the Courts of
Appeal to "include in their Wende opinions a brief description of the facts and procedural
history of the case, the crimes of which the defendant was convicted, and the punishment
imposed. . . ." ], see id. at pp. 123-124.)
       The majority in this case has not cited case law establishing that California
appellate courts inherently have general supervisory authority over superior courts within
their districts. McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th
88, the principal case relied on by the majority in this regard, does not establish such

                                               3
authority. In that case, the Supreme Court held that the Fair Employment and Housing
Act "does not preclude equitable tolling during the voluntary pursuit of internal
administrative remedies." (Id. at p. 111.) The court discussed the judicially created,
nonstatutory doctrine of equitable tolling of statutes of limitations and noted that it had
previously "described it as a creature of the judiciary's inherent power ' "to formulate
rules of procedure where justice demands it." ' [Citations.]" (Id. at p. 100, fn. omitted;
see Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 ["effect of equitable tolling is
that the limitations period stops running during the tolling event, and begins to run again
only when the tolling event has concluded"].)
       I can endorse the majority's rules as nonbinding, recommended practices to the
extent they are helpful in avoiding unnecessary appeals but not as procedural rules
controlling local courts.




                                    ______________________________


                                    ELIA, J.


People v. Blackburn


H037207




                                               4
Trial Court:                                 Santa Clara County
                                             Superior Court No.: BB304666


Trial Judge:                                 The Honorable Gilbert T. Brown



Attorney for Defendant and Appellant         Rudy Kraft
Bruce Lee Blackburn:                         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

                                             Seth K. Schalit,
                                             Supervising Deputy Attorney General

                                             John H. Deist,
                                             Deputy Attorney General




People v. Blackburn
H037207




                                         5
