Opinion
H036202
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES BURNS II, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC634756)
I. STATEMENT OF THE CASE
In 2007, defendant James Burns II was found not guilty by reason of insanity of several offenses, and he was committed to the Department of Mental Health. (Pen. Code, § 1026.) In January 2009, his commitment was extended until March 2011. On July 26, 2010, the Santa Clara County District Attorney filed a petition to extend defendant's commitment. In October 2010, the trial court granted the petition and extended defendant's commitment to August 28, 2011. (§ 1606.)
All unspecified statutory references are to the Penal Code.
On appeal from the extension order, defendant claims there was insufficient evidence to support the findings necessary for an extension. He further claims the court trial was unlawful because he did not waive a jury trial.
We affirm the order.
II. BACKGROUND
Defendant suffers from paranoid schizophrenia with polysubstance dependence on alcohol and marijuana. In 2006, police forcibly subdued and arrested him after he broke into the Adobe Corporation building. At the time, he thought he was President Bush and needed to make love to his wife.
At the time of the extension hearing, defendant was in the outpatient treatment program at the South Bay Conditional Release Program (CONREP). Doctor Douglas Johnson, Ph.D, M.A., M.F.T., was the community program director at CONREP and testified as an expert in the diagnosis and treatment of mental disorders and risk assessment. He said that defendant took medication for his schizophrenia and attended individual counseling. Defendant's treatment followed a "relapse prevention model," which required that patients assemble personal histories that detail all episodes of psychiatric problems and unlawful conduct, which then helps them understand the early warning signs of problems and identify high risk situations.
Doctor Johnson opined that although defendant is friendly, cooperative, and compliant, without continued supervision at CONREP, he would pose a substantial risk of physical danger to others. In support of his opinion, he said that defendant did not grasp his own history or recognize high risk situations that he encounters and distortions in his perceptions.
Concerning defendant's history, Doctor Johnson explained that defendant minimized the importance of troubling personal experiences in his life and thus failed to recognize how they had affected and continued to affect him and also how they relate to the warning signs of his behavioral problems. For example, when defendant was young, his father orally copulated him for some years. Doctor Johnson opined that this was a traumatic experience for defendant that would later manifest itself in distorted thinking. Thus, in the incident at Adobe, defendant talked about feeling that his semen was being stolen. Doctor Johnson explained that defendant's past traumatic experiences were a major focus of concern for treatment because patients must learn to recognize distorted thinking as a warning sign of potential behavioral problems. However, defendant minimized and discounted the significance of his past sexual abuse, saying instead that he did not think about it very much, believed it had no impact on him, and felt that in some ways it had been pleasurable. For this reason, defendant's ability to recognize warning signs, such as distorted thinking, was limited. Doctor Johnson believed that defendant similarly failed to recognize the impact of his religiosity on his behavior, which had at times made him feel like preaching to others.
Doctor Johnson was particularly concerned about defendant's polysubstance abuse. He explained that most patients learn to recognize red flags or high risk situations and develop avoidance skills to deal with them. For defendant, being around substance abusers posed a high risk situation. Defendant, however, did not avoid such situations. For example, he had told his CONREP group that while he was out in the community, he smelled marijuana, and he then talked about how he could recognize the type of marijuana being smoked and wanted to discuss whether marijuana should be legalized. He even said that if he were able to smoke, he would do so. Thus, because defendant engaged with red flag situations rather than exercising coping and avoiding skills, he posed a high risk of relapse without CONREP supervision.
Doctor Johnson testified that defendant had limited and inconsistent insight into his mental disorder. He explained that most patients in the program become focused on their histories, learn coping skills, and know when they are hallucinating or displaying other symptoms. Defendant does not. He did not consistently acknowledge having a mental disorder and said that the underlying incident was only a psychotic episode in which he lost touch with reality on that particular day. Thus, he did not fully understand that schizophrenia does not come and go; it was a chronic disorder.
Moreover, rather than accept the relationship between his history and his disorder to better understand the warning signals and red flags, defendant tried to normalize those signals and flags. Defendant rationalized and discounted previous events and episodes as well as his symptoms and did not fully understand that the signs of his schizophrenia— odd thinking, religiosity, reclusive behavior—had started to appear when he was in his 20's.
Doctor Johnson acknowledged that since the underlying incident, defendant had taken his medication and not exhibited any symptoms of schizophrenia. Defendant had also been clean and sober, he had been regularly participating in 12-step programs for alcohol and drugs a few times per week, and he was being regularly tested for drugs four times per month. However, Doctor Johnson expressed concern about whether defendant would continue to take his medication without close CONREP supervision. He did not think defendant would immediately stop taking his medication because defendant had in the past acknowledged that he had to take it for the rest of his life. However, Doctor Johnson believed that defendant might stop taking medication because he was at "high risk" of relapsing with alcohol and/or marijuana. If defendant started using again, he would find himself in situations where he lacked social support and access to treatment and then simply stop taking his medications.
Concerning whether defendant could control his behavior, Doctor Johnson testified that defendant was very compliant and polite and did not act out. However, he believed that defendant was unable to utilize good coping plans to avoid high risk situations in the community and this affected his ability to control his behavior. Defendant's untreated schizophrenia had previously caused a psychotic break which then led to the underlying incident, and if defendant did not take his medication, he would have similar difficulty controlling his behavior. He acknowledged that defendant understood that he has delusions and would not choose to engage in bizarre behavior when he is thinking correctly. However, he opined that given defendant's risk of relapse, his inability to see the connection between his history and behavioral problems, and his lack of adequate skills to cope with and avoid red flag situations that he would encounter in the community, defendant would have problems controlling his behavior.
On cross-examination, Doctor Johnson agreed that there was no evidence that prior to the Adobe incident, defendant had been hospitalized for psychiatric problems or dangerous behavior or engaged in criminal activity directly related to his psychiatric problems.
Doctor Johnson did not know whether defendant had formulated a living plan for what he would do if released or whether he had a local support network in the community that he could rely on as a substitute for CONREP.
Doctor Johnson believed that defendant needed to work on reviewing his life history for traumatic events and patterns of behavior and thinking of the sort that had led to the underlying incident. He needed to address those events and patterns, such as his sexual trauma, in depth and not disavow them. And he needed to recognize early warning signs and high risk situations.
Doctor Johnson conceded that there were two schools of thought concerning whether it was appropriate for a patient to delve into delusions, hallucinations, and psychotic processes.
Defendant testified that in his view, he had completed his treatment and was ready for release into the community without supervision. He acknowledged that CONREP had five levels of programming—intensive, intermediate, supportive, transitional, and aftercare—and under the program, patients are slowly guided through the process, which can take up to five years. However, defendant felt that the program was too limited, and if released, he would be able to exercise more freedom in the community and do things like getting employment and housing.
Defendant did not think he had a mental disorder at the moment because he was symptom free. However, he acknowledged having a mental condition—paranoid schizophrenia—that required medication to control hallucinations, delusional thinking, and behavior patterns like those he was experiencing during the Adobe incident. He said he understood that if he went off his medication, those symptoms of his schizophrenia would return. He believed he would continue to take his medication if released and would do so for life because it allows him to remain stable and symptom free.
Defendant acknowledged that his father orally copulated him and that at times in his life he had hallucinations that his genitalia were being attacked and his semen was being stolen. However, he disagreed with Doctor Johnson's view that the sexual abuse was related to those particular delusions. According to defendant, those delusions were religious-based and related to feelings of being spiritually attacked by Satan. Defendant did not consider himself an alcoholic but acknowledged having a problem with marijuana. However, he regularly attended separate drug and alcohol 12-step programs in San Jose, where he has had a sponsor for several months. He said he was currently working on his fourth step. He said he knew about programs directed at marijuana use, but his curfew limited him to the other programs. He said that he no longer had any urge to drink or use marijuana. Although in the past, he had engaged people whom he saw using drugs and alcohol, he now realized that he needed to avoid them and those situations.
Defendant believed the greatest sources of stress if released would be from being homeless and lacking money. However, he thought he could find a job and housing. He thought it possible that he could get his old job back at a ranch. However, he acknowledged that there was no job opening there, and the ranch was isolated, which would make it difficult for him to get ongoing therapy.
III. SUFFICIENCY OF THE EVIDENCE
Defendant contends there was insufficient evidence to support a finding that he was dangerous and had serious difficulty controlling his behavior.
A. Recommitment Criteria and Standard of Review
A person found not guilty of a crime by reason of insanity may be committed to a mental hospital. When the original term of commitment expires, and the person has not recovered his or her sanity, the People may petition the court to extend that commitment for an additional two years. (§ 1026.5.) Under section 1026.5, subdivision (b)(1), extended commitment requires the People to prove that "the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1); People v. Superior Court (Williams)(1991) 233 Cal.App.3d 477, 488 (Williams); People v. Overly (1985) 171 Cal.App.3d 203, 207.) To satisfy due process, the People must also prove that as a result of the mental disease, defect, or disorder, the person has serious difficulty controlling his or her dangerous behavior. (People v. Galindo (2006) 142 Cal.App.4th 531, 533 [following In re Howard N. (2005) 35 Cal.4th 117, 128]; accord, People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159-1165 (Zapisek); People v. Bowers (2006) 145 Cal.App.4th 870, 878 (Bowers).)
Whether a defendant by reason of a mental disease, defect, or disorder has serious difficulty controlling his or her behavior and represents a substantial danger of physical harm to others are questions of fact to be resolved with the assistance of expert testimony. (Bowers, supra, 145 Cal.App.4th at p. 878.) In reviewing the sufficiency of evidence to support an extended commitment, we apply the substantial evidence test, under which we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5 beyond a reasonable doubt. (Ibid; Zapisek, supra, 147 Cal.App.4th at p. 1165.) In this regard, courts have stated that "[a] single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant's commitment under section 1026.5." (Bowers, supra, 145 Cal.App.4th at p. 879; accord Zapisek, supra, 147 Cal.App.4th at p. 1165; Williams, supra, 233 Cal.App.3d at p. 490.)
B. Discussion
Doctor Johnson's conclusions that defendant would pose a danger without continued supervision and that because of his schizophrenia, he would have serious difficulty controlling his behavior support the court's findings on those issues and the extension of defendant's commitment. However, as defendant correctly notes, Doctor Johnson's expert opinion does not necessarily or automatically constitute substantial evidence. Rather, the value of an expert's opinion on a given matter rests not on the ultimate conclusion but rather on the material from which that opinion is fashioned and the expert's reasoning from the material to the conclusion. In other words, " ' Expert evidence is really an argument of an expert to the court, and is valuable only in regard to the proof of the facts and the validity of the reasons advanced to the conclusions. ' " (People v. Bassett (1969) 69 Cal.2d 122, 141; People v. Coogler (1969) 71 Cal.2d 153, 167.) Accordingly, " '[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]' [Citation.]" (Borger v. Department of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122, quoting Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135; Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1110; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378.)
Defendant points out that there is no evidence that prior to the underlying incident he ever posed a risk or danger to anyone. He notes that the incident was the result of untreated schizophrenia. Now, however, he was clean and sober, in 12-step programs, and being successfully treated with medication that stopped his hallucinations and delusional thinking. Moreover, Doctor Johnson did not believe that defendant would immediately stop taking his medication if released from CONREP. Doctor Johnson also acknowledged that defendant knew he needed to take medication to control the symptoms of his schizophrenia, and defendant testified that he knew his symptoms would return if he stopped taking his medication.
Defendant asserts that instead of providing factually-based reasons why defendant was dangerous, Doctor Johnson offered only an opinion of potential future dangerousness based on a hypothetical scenario in which sometime after being released, defendant started using alcohol and marijuana again and stopped taking his medication, which in turn would render him susceptible to his schizophrenia and the sort of hallucinations, delusional thinking, and lack of behavioral control he manifested in the underlying incident. Defendant argues that although it was reasonable for Doctor Johnson to be concerned about what would happen if he started using alcohol and marijuana and also stopped taking his medication, his opinion was based on the speculative assumption that he would, in fact, do so. Such speculation, he claims, does not constitute substantial evidence that he was dangerous and had serious difficulty controlling his behavior.
We do not agree that Doctor Johnson's opinion was based on pure speculation and hypothetical assumptions.
As noted Doctor Johnson testified that defendant had not succeeded in his relapse prevention plan. Defendant's understanding of his mental illness was limited and inconsistent and reflected a belief that when he was on his medication, he did not suffer from a disorder, when, in fact, schizophrenia is a constant, chronic condition that does not appear one day and disappear then next with medication. Doctor Johnson also noted that defendant had not understood his history in a therapeutically significant way that would help him recognize the distortions and perceptions that are the warning signs of high risk situations. Defendant also minimized or disavowed past events in his life which showed a failure to grasp how they informed his delusional thinking. Although defendant had remained clean and sober under the close supervision of CONREP and participated in 12-step programs, Doctor Johnson's view that defendant had shown a lack of insight and skills when confronted with red flag situations involving marijuana and was at high risk of relapse was amply supported by defendant's engagement in situations involving marijuana and failure to avoid them. Defendant's statement that he would smoke if he were free to do so was particularly relevant to support finding defendant to be at high risk because defendant would no longer be subject to regular CONREP drug testing. Doctor Johnson's conclusion was also supported by defendant's potential homelessness and lack of a local support group that, like CONREP, could help him cope with and avoid red flag situations.
Defendant's testimony indirectly supported aspects of Doctor Johnson's assessment. He said that there was no connection between his history as a victim of sexual abuse and the underlying incident, a view which confirmed Doctor Johnson's opinion that defendant did not grasp the relationship between his history and the delusional thinking. To the degree that defendant disagreed with or contradicted Doctor Johnson's testimony about specifics concerning the impact of past trauma on defendant's delusional thinking or its relationship to the underlying incident, the trial court resolved the debate in Doctor Johnson's favor; and under the substantial evidence test, we are obliged to accept that credibility determination. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Moreover, although defendant was participating in a 12-step program for alcohol abuse, defendant opined that he was not an alcoholic. Furthermore, defendant admitted that at times, he had engaged with, rather than avoided, situations and discussions involving marijuana. Finally, defendant acknowledged that CONREP offered a structured model in which a defendant proceeds through various stages and ended in reintegration into the community, and CONREP provided support for each stage. Nevertheless, defendant felt it was unnecessary for him to complete the process and sought immediate release even though he admitted that his homelessness and lack of money were stressors and his testimony revealed that he lacked a local support group or realistic plans for employment or housing.
In our view, the factors cited by Doctor Johnson and the evidence he outlined concerning the limitations on defendant's understanding of his mental disorder, his lack of a fully realized relapse prevention plan, his inability to grasp the historical components of his delusional thinking and its warning signals, a lingering interest in marijuana, his high risk of relapse, and his lack of a social network to replace CONREP reasonably support Doctor Johnson's conclusions that defendant was likely to relapse and stop taking his medication and therefore that without CONREP supervision, defendant, as a result of his schizophrenia, would pose a danger to others and have serious difficulty controlling his behavior.
Accordingly, we reject defendant's claim that there is insufficient evidence to support his recommitment.
IV. RIGHT TO A JURY TRIAL
Defendant contends that the court erred in conducting a court trial because it never advised him of his right to a jury, he did not personally waive that right, and his attorney did not expressly waive that right on his behalf.
The Attorney General argues that defendant forfeited his claims by failing to object at trial. Concerning the failure to advise defendant of the right to a jury trial, we note that the court has a sua sponte duty to advise. For that reason, defendant had no obligation to object in order to preserve the issue for appeal. (People v. Ervine (2009) 47 Cal.4th 745, 771, fn. 12 [no forfeiture of appellate claim despite failure to object where court had sua sponte duty to act]; e.g., People v. Carter (2010) 182 Cal.App.4th 522, 532 [claim that court erred in failing to instruct not forfeited because court had sua sponte duty to instruct].)
Concerning whether the court erred in conducting a court, instead of a jury, trial, we agree that defendant arguably forfeited that claim. In People v. Vera (1997) 15 Cal.4th 269, the defendant "claimed on appeal that the trial court erred when it conducted a court trial on the truth of the prior prison term allegations without first obtaining an express, personal waiver of his right to jury trial." (Id. at p. 274, abrogated on another point by Apprendi v. New Jersey (2000) 530 U.S. 466.) The California Supreme Court first determined that "the deprivation of the statutory right to jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to jury trial." (Id. at p. 278, see id. at p. 279.) The court held: "Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations." (Id. at p. 278.) Despite the ostensible failure to preserve the issue, we nevertheless exercise our discretion to address the issue because, as we shall explain, counsel waived the jury. (E.g., People v. Gutierrez (2009) 174 Cal.App.4th 515, 520; see Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, fn. 17, overruled on another ground by Edelstein v. City & County of San Francisco (2002) 29 Cal.4th 164, 183.)
When a petition for extended commitment is filed under section 1026.5, subdivision (b)(1), the court must "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, subd. (b)(3).) Moreover, the court must then conduct a trial on the petition, which must "be by jury unless waived by both the person and the prosecuting attorney." (§ 1026.5, subd. (b)(4).) "The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees." (§ 1026.5, subd. (b)(7).)
The record does not reflect that the court advised defendant of his right to a jury trial or that defendant personally waived his right at some time before the hearing on the petition. Thus, it appears that the court erred in failing to advise defendant. However, the error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
In civil commitment proceedings in general, the defendant's personal waiver of a jury is not required or necessary, and counsel may do so on the defendant's behalf. Moreover, in NGI extension hearings, counsel may waive a jury even over the defendant's objection.
In People v. Otis (1999) 70 Cal.App.4th 1174 (Otis), the court addressed whether counsel could waive the right to a jury for a defendant challenging a determination by the Board of Prison Terms that he or she qualifies as a mentally disordered offender (MDO). Section 2972, like section 1026.5, subdivisions (b)(3) and (b)(4), requires that the court advise the defendant of the right to a jury and provides that the trial "shall be by jury unless waived by both the person and the district attorney." (§ 2972, subd. (a).) The Otis court concluded that the statute did not require a personal waiver of jury trial. "Section 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.) The court opined that "[h]ad the Legislature intended that waiver could only be made personally by the petitioner, the Legislature would have made its intent clear." (Id. at p. 1176; accord, People v. Montoya (2001) 86 Cal.App.4th 825, 829; cf. In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 148 [absent statutory prohibition, counsel may waive proposed LPS conservatee's right to jury]; People v. Masterson (1994) 8 Cal.4th 965, 972 [counsel may waive the right to a jury trial in a competency proceeding]; People v. Rowell (2005) 133 Cal.App.4th 447, 451, 454 [no requirement of personal waiver of jury in sexually violent predator (SVP) proceeding]; cf. People v. Hinton (2006) 37 Cal.4th at 839, 874-875 [trial court not required to secure defendant's express, personal waiver of statutory right to a separate proceeding on the prior-murder-conviction special-circumstance allegation].)
In People v. Powell (2004) 114 Cal.App.4th 1153 (Powell), the court cited Otis and concluded that section 1026.5, subdivision (b) also did not require a personal waiver of the jury trial as is constitutionally required in criminal cases and that counsel could waive the jury even over a defendant's objection. (Powell, supra, 114 Cal.App.4th at p. 1156.) The court noted that an NGI extension trial, like an MDO proceeding, is civil in nature, directed at treatment and not a criminal proceeding that results in punishment. Moreover, although many constitutional protections relating to criminal proceedings were available in extension proceedings, they are not mandatory. For example, the prohibition against ex post facto application of the law, the privilege against self-incrimination, and the protection against double jeopardy were not applicable. (Id. at pp. 1157-1158.)
The court pointed out that the Legislature, in enacting section 1026.5, "did not say that the jury waiver must be 'personally' made by the NGI committee." (Powell, supra, 114 Cal.App.4th at p. 1159.) The court further opined that common sense indicates that persons subject to recommitment under section 1026.5 will uniformly already have been adjudicated as mentally ill to the point of being found not guilty by reason of insanity. Under these circumstances, the tactical reason to seek or waive a jury trial should be left to trial counsel and personal waiver by the client is not necessary despite the statute's constitutional guarantees. (Id. at pp. 1158-1159; accord, People v. Givan (2007) 156 Cal.App.4th 405, 410 (Givan); see People v. Haynie (2004) 116 Cal.App.4th 1224, 1229- 1230 (Haynie)[NGI committee should not be able to "veto" the tactical decision of counsel].)
We agree with the analysis in Powell and cases in other civil commitment contexts and conclude that although a defendant has the right to a jury trial, the defendant need not personally waive it, and defense counsel may make the decision concerning whether to do so.
Defendant urges us not to follow Powell. Citing Haynie, supra, 116 Cal.App.4th 1224, he notes that Haynie disagreed with the Powell court's statement that the statutory language in section 1026.5, subdivision (b)(7) " 'merely codifies the application of constitutional protections to extension hearings mandated by judicial decision.' " (Powell, supra, 114 Cal.App.4th 1157-1158; Haynie, supra, 116 Cal.App.4th at p. 1230.) On that point, the Haynie court opined that such a view would render the statutory provision "surplusage" and, in essence, supplant the statutory language by authorizing courts to decide what constitutional rights applied. (Haynie, supra, 116 Cal.App.4th at p. 1230.)
Defendant's reliance on Haynie is misplaced for the simple reason that on the issue before this court—does section 1026.5, subdivision (b) requires a personal waiver of the jury by an NGI committee—Haynie cited Powell as an example of a right— personal waiver—that an NGI committee did not enjoy. In other words, Haynie implicitly agreed with the holding in Powell. (Haynie, supra, 116 Cal.App.4th at pp. 1229-1230.)
We next note that in Givan, supra, 156 Cal.App.4th 405, the defendant claimed that the waiver of his jury trial was invalid because there was no evidence in the record of his knowledge of the right or waiver. (Id. at p. 411.) The court, citing Powell, noted that defense counsel can waive a defendant's right to a jury. (Id. at pp. 409-410.) The court found no evidence in the record that defendant knew of his right or waived it. However, the court further found the error harmless. The extension hearing was in Fresno, but the defendant was in Napa State Hospital facing a court proceeding in Napa County. The defendant and his Napa attorney had instructed his attorney in Fresno to obviate the need for him to personally appear in Fresno because the defendant did not want to miss court dates in Napa. The Fresno attorney advised the court, and the matter proceeded as a court trial without defendant's presence. Under the circumstances, the court found that by proceeding with a court trial in the defendant's absence counsel implicitly waived the jury trial. (Ibid.)
Turning to the facts here, the record reveals that this was defendant's second extension hearing. Defendant's public defender, Thomas Sharkey, appeared in court for defendant on several occasions. In the absence of evidence to the contrary, we presume that both defense counsel and the prosecutor knew that each party at an extension hearing has a right to a jury determination, and that unless both waive the right, the court would conduct a jury trial. Neither the district attorney nor defense counsel asked for a jury trial, and both participated in a court trial, each presenting only one witness. Under the circumstances, we conclude that both parties implicitly waived the right to a jury. Thus, we reject defendant's claim that the court erred in conducting a court, instead of a jury, trial.
It appears that the first extension hearing was a court trial.
Given our conclusion, any error by the court in failing to advise defendant of his right to a jury was harmless. First, assuming that defendant was unaware of his right, there is no evidence that he would have chosen to have a jury trial had be been advised. That his appellate claim implies as much is not evidence that he would have chosen a jury trial. Second, even if defendant wanted a jury trial, there is no evidence that counsel would have concurred. As noted, in an NGI extension hearing, counsel may waive a jury over the defendant's objection. Counsel's decision to proceed with a court trial implicitly reflects a tactical decision that defendant's chances of avoiding an extension were better if the matter were tried to the court and not to a jury. Under the circumstances, we do not find it reasonably probable defense counsel would have acceded to defendant's wishes if defendant had been advised of his right and then told counsel that he wanted a jury.(People v. Watson, supra, 46 Cal.2d at p. 836.) Moreover, given the evidence supporting the commitment, we do not find it reasonably probable defendant would have obtained a more favorable outcome had the issue of dangerousness and difficulty controlling behavior been decided by a jury. (Ibid.)
We observe that defendant has not filed a petition for a writ of habeas corpus alleging ineffective assistance in that (1) he did not know he had a right to a jury and would have wanted a jury had he been advised; (2) counsel failed to discuss his right to a jury with him; (3) and counsel either forfeited his claim that the court erred in conducting a court trial by failing to object; or acted unreasonably in waiving the jury himself.
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V. DISPOSITION
The order extending defendant's NGI commitment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.