PEOPLE v. BLACKBURNRespondent’s Petition for ReviewCal.May 31, 2013| / 5211078 Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, . COPY BRUCE LEE BLACKBURN, Defendant and Appellant. Sixth Appellate District, Case No. H037207 Santa Clara County Superior Court, Case No. BB304666 The Honorable Gilbert T. Brown, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER.GILLETTE SUPREME COURT Chief Assistant Attorney General FE [ LL E r) GERALD A. ENGLER : Senior Assistant Attorney General SETH K. SCHALIT MAY 3 12013 Supervising Deputy Attorney General JOHN H. DEIST Frank A. McGuire Clerk Deputy Attorney General State Bar No. 136469 Deputy 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5855 Fax: (415) 703-1234 Email: John.Deist@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page ISSUES .....sssescssesssscreestesesenevseetcsuesssoesnessasscesesessessaesnscussvsesuceusssseseeseusessesesssenees 1 StateMent... scccscsecssscesercersssessessesseessstsessessssesscesssesessssssssseseesssvecessvacevaees ] Reasons for ROVICW......ssseesesecssenssstcsseessssessenssserscssseseesessevecsessecsesesssnenssenss 5 I, The Court of Appeal’s new ruleis contrary to well- established authority 0... csssessecsscsesseessssscsssecssserensssssseassenes 5 Il. The Court ofAppeal lacked authority to fashion a supervisory rule of procedure fortrial courts .........cccceeeee 10 COnclusion....cessssssscseseecscsssssssssssssavsseccsescsessscossssasscasscsssscevaeseeavacsenaenusas 13 TABLE OF AUTHORITIES Page CASES City ofLos Angeles v. Zeller (1917) 176 Cal. 194ieseeeceessssssstsesetsscssssesessrsesssssenessesecsesaseees 8 Glogau v. Hagan (1951) 107 CalApp.2d 313 oeecessecssssssessscssssssenssescsesessessessseresevees 8 Hung v. Wang (1992) 8 Cal.App.4th 908oeesssessesssccssssesesssssessesscesesessssseeerseesseens 7 In re Conservatorship ofJoseph W. (2011) 199 CalApp.4th 953 oceeecsssssssesescssesessseseressesesecsesssessesees 7 People v. Barrett (2012) 54 Cal.4th 108]isecessssessssssssscssscsssresessceresseresseeeens 3, 9, 10 People v. Beeson (2002) 99 CalApp.4th 1393. .sccsccsereseseteeesseseeseseseaeeseeeseseuserseseaeres 7 People v, Fuquay (2013) 215 Cal.App.4th 883 .......cccesesseeeees saeesesenecesuecesesseseseevarsaaesaees 6 People v. Masterson (1994) 8 Cal.4th 965 oo. ccescscsscescessecseessesseesseseesssessesssssersenses passim People v. Montoya © (2001) 86 Cal.App.4thocccssssssscsssssssssssesscsessssssessesesesesetasssens 7,9 People v. Mortimer (Apr. 25, 2013, H037530)_ ——s- Cal.App.4th [2013 WL 1768703] oo... esescececsesseeesesessssssesssecssessresestesessessesetereesss 6 People v. Otis (1999) 70 Cal.App.4th 1174...eeelesaueseeneseseaeerseessansasensneens 7, 8,9 People v. Tran (May 7, 2013, H036977) —s- Cal.App.4th| [2013 WL 1881050] oo...eee esseseessecsessesssscstesenecnssassrssssneesseresssenes 6 ii TABLE OF AUTHORITIES (Continued) Pink v. Slater (1955) 131 Cal.App.2d 816... ccc ccescscsscsecsessessssessseseeessecssssescsseserens 8 Seling v. Young (2001) 531 U.S. 250 uu...cssccssssessrccessesstesssseessesersnssevsetsuvssesssesscurseesenaes 7 Tyler v. Norton (1973) 34 Cal.App.3d 717 ooo. ccccsscscssccsssssssssssecsscsssessesssessenesssesessnsensass 7 STATUTES Code of Civil Procedure § 631, SUD. (A)(4) uo... eceeesscesssssceessssssseeseteesseseevesseavesessssevssenesrasecneaes 7 Penal Code § 1368 weesucuueaeseeeesseseucuacenscsvesecesssseseccerscsesseuacauensesevenseevertaeees 8,9 § 1369 vo iccccsccccsssstsetssscesscnscsescecssecessveessesssossnsecscessesseacusesesestesesesenareacs 9 § 2960 through 2981 ..........ccssccsseecessessceessesesscesessesensaresersessesvsseensenes 6 § 2962 ....ssessccssssssssccessstevsveusvsvecessuscesssasersusessenseusecepesesauenesssvensucaveneans 1,6 § 2966 ....eeeecccccessssssessccssccessesvsesesscevestussseseestsuessvcesssseuassseeusesacessrencesens 8 § 2966, SUD. (Db) .......cesccsesscsssseevsnesecsseessseesteccerseucesesersseveneseeasecssenesaess 1 § 2970 .cesscccccccsssssssecssessescssssvsecevsoscccseceesseessenaeeceepeceeseceeesesssaesessacans 6,7 § 2970 through 2972.1 ......scessesssssscsesssssessssseseesceseserscessscsevssssessneseesees 6 § 97D escccessccscssessrssseeveteeesssseseesseceesusuavsusessssenersesecensessessaceseneasssasess 3,7 § 2972, SUDA.(A) oo... cecsecssstcestsecesececssrsessrsesetesessecenesseeseussesecesetnevece 1,7 § 2972, SubdS. (C), (€) ..eccccscccccsssvecsserssestsssssvscsesscesesvecsccscscessevatseatasscenes 6 Welfare andInstitutions Code § 6500 oc eeseccescessrscesvenssceessssensessecssesseesccssssssneasscescssseneneesesersseesesuatannes 9 CONSTITUTIONAL PROVISIONS United States Constitution Amendment VI .......cccccccsccccsccccccessseccsessssepssnssesscenscceesecsscesecepsesuseseverses 7 California Constitution Article I, § 16... cessccssesscesesssssseeesssssesserserseeeseeeeetesasssessateseseessseseasweed ili TABLE OF AUTHORITIES (Continued) COURT RULES California Rules of Court Rule 8.264(b)(5).......ccssesscssscscsessssssecccssesssssssssssssessssevseeseseserssersesceesesce 1 Rule 8.500(€)(1) .....cccscccssesssscsssssesssrecscssrssestsersassesatsevavsessesessuseseserseses 1 iv The People respectfully petition for review of the decision by the California Court of Appeal for the Sixth Appellate District. The opinion, attached as Exhibit A (hereafter Typed Opn.), is reported at 215 Cal.App.4th 809. The opinion wasfiled on April 23, 2013. This petitionis timely. (Cal. Rules of Court, rules 8.264(b)(5), 8.500(e)(1).) ISSUES (1.) Whether counsel may waivethe statutory right to a jurytrial in mentally disordered offender (MDO) and not guilty by reason of insanity (NGI) extended commitment cases, and, if not, then (2.) Whether advice and waiver need be onthe record. (3.) Whether a Court of Appeal has supervisory powerto create judicial rules of procedure. STATEMENT Appellant Bruce Blackburn wasconvicted in 2004offirst degree burglary and false imprisonment. (See CT 1-2.) In 2006, he was committed to Atascadero State Hospital, as an MDO. (CT 2.) The commitment was extended multiple times (§§ 2962, 2970, 2972). (CT 2.) In 2011, the district attorney filed a petition to extend the commitment again. (CT 1-4.) The Mentally Disordered Offender Act (the Act) requires the court to “advise the [MDO]. .. of the right to a jury trial” and to conducta jury trial “unless waived by the person andthe district attorney.” (Pen. Code, §§ 2966, subd. (b); 2972, subd.(a).)! . A settled statement in the record below reflects 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 ' Unless otherwise indicated,all statutory references are to the Penal Code. 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 [was] 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 commitmentto the Departmentof Mental Health and wanted 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.” (Typed Opn., p. 4, brackets original; see RT 16; CT 28.) At the extension trial, a clinical psychologist, Kevin Perry, Ph.D., testified. Dr. Perry opined that appellant suffered from a severe mental disorder marked by paranoia, psychomotoragitation, impulsivity, thought disorganization, and grandioseand persecutory delusions. (CT 8-9.) Dr. Perry diagnosed appellant with schizoaffective disorder, bipolar type. (1 RT 4-8.) Dr. Perry testified that appellant had expressed delusions that he is the “son of God” and that he can communicate with people across great distances through sound waves. (1 RT 8-9; see also written report at CT 9 [appellant believes he can be “beamed up”to the spaceship Enterprise].) The witness opined that appellant posesa risk to others based onhis bizarre behavior at the hospital and his history of violent behavior due to schizoaffective disorder. (1 RT 9-10.) Dr. Perry noted that appellant committed the qualifying criminal offense, a 2006 sexual assault of an elderly woman, while displaying “disorganized thoughts andbizarre ~ behaviors.” (1 RT 10.) The defense offered no evidence. At the conclusionofthe benchtrial, the superior court extended appellant’s commitment to October 19, 2012. (1 RT 16; CT 28.) Appellant appealed, contending that section 2972 required his personal waiverof a jury trial. The Attorney General argued that counsel has exclusive control over the decision to waive a jury. (Typed Opn., p. 1.) On April 23, 2013, the Sixth District Court of Appeal rejected both parties’ contentions, imposed a new supervisory rule ofjudicial procedure on trial courts, and affirmed the judgment, in a published decision with a lead opinion by Presiding Justice Rushing for himself and Justice Premo. (Typed Opn., pp. 2, 33.) The Court of Appeal addressed the merits on a view that the issue was one capable of repetition but evading review despite technical mootness of the expired commitment extension. The court noted the commonality of appeals from commitment orders where the record does not reveal an advisement or an express waiverto the defendant regardingjury trial, and expressed its opinion that existing case law does not provide a “clear, comprehensive, and definitive resolution of these claims.” (Typed Opn.,p. 5.) On the merits, the court agreed with prior decisions that find the statutory language does not require an MDO’spersonal waiverofjurytrial. (Typed Opn., pp. 7-9.) A contrary interpretation excluding waivers by counsel, the court said, leads to consequencesthatare “illogical and anomalousandtherefore, to be avoided.” (/d.at p. 9.) The court decided nextthat the Act’s language does not encompass the civil litigation rule that counselis “captain of the ship” respecting the waiver of ajury. Therefore, the rule “does not govern whether counsel has exclusive authority to waive a jury in MDOproceedings.” (Typed Opn., pp. 13-14.) Distinguishing People v. Barrett (2012) 54 Cal.4th 1081 and People v. Masterson (1994) 8 Cal.4th 965, the court took the view that counsel “can waiveajury 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 whenthe circumstancescast reasonable doubt on the MDO’s mental capacity to determine whatis in his or her best interests.” (Typed Opn., p. 26.) The court next observedthatthe trial court’s “custom and practice of obtaining waivers off the record resulted in a record thatis silent concerning whether counsel discussed the jury issue with defendant, or if he did, whether defendant agreed to have a benchtrial or wanteda jury trial instead.” (Typed Opn., pp. 26-27.) Observing that nothing in the record overcame the presumption counsel advised appellant ofhis rights and that substantial evidence supported the commitment, the court held any error in failing to advise and conductajury trial was harmless. (/d. at pp. 27-30.) The court found “troubling”that “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 objection because any alleged errors can easily be deemed harmless under Watson.” (Typed Opn., pp. 30-31.) . Thoughrecognizing no constitutional right to a jury trial ofMDOs exists, the court declared: “Given the similar liberty and dignity interests implicatedat stake in an involuntary commitment, the right to choose the trier of fact is no less valuable to an MDOthanitis to a criminal defendant.” (Typed Opn., p. 31.) The court said that “an MDO’sright to a jury trial is undermined whentogether a silent record, general procedural rules and presumptions on appeal, and the harmless-error test permit a reviewing court to affirm a commitment andsay, in essence, we need not know, and it does not matter whether the MDO wasadvised or whether a jury trial was validly waived.” (/bid.) To assurance compliance with its interpretation of the statute, the court announced a new rule: “[I]f the court conducts a benchtrial and the MDO did not personally waivethe right to a jury, the record must show that the court advised the MDOoftheright to a jury or, if the court was unableto 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’sdirection or with the MDO’s knowledgeand consentor that there were circumstances before the court that reasonably raised doubt concerning the defendant’s capacity to determine what wasin his or her ownbestinterests.” (/d. at p. 31.) The trial court andthe parties “must state on the record the facts establishing the MDO’s awarenessofthe right to a jury andthe validity of counsel’s waiver. Alternatively, the record must contain an advisement and waiver form signed by the MDO.” (/d.at p. 32, fn. omitted.) Onejustice, concurring only in the judgmentthat no prejudicial error appeared, stated that he “can endorse themajority’s rules as nonbinding, recommended practices to the extent they are helpful in avoiding unnecessary appeals but not as procedural rules controlling local courts.” (Typed Opn., p. 4 (conc. opn. of Elia, J.).) REASONS FOR REVIEW L THE COURT OF APPEAL’S NEW RULE IS CONTRARYTO WELL-ESTABLISHED AUTHORITY The opinion below requires review becauseit substantially alters existing law for a waiverofjury trial in commitmentproceedings for mentally disordered offenders and does so in highly questionable fashion. Under the Court of Appeal’s decision, the record in an MDO bench trial based on counsel’s waiver of a jury must affirmatively reflect either: (1) the defendant’s knowingandintelligent direction or consent to counsel’s waiver based on timely advice to the defendantofthe existence of the right; or (2) the recital by the court and parties of circumstances beforetrial sufficient to show reasonable doubt of the defendant’s capacity to determine his or her own bestinterests. In three recently published decisions, the lower court has appliedits new rule to proceedings to extend the commitments of defendants found not guilty by reason of insanity. (See People v. Mortimer (2013) 215 Cal.App.4th 860; People v. Fuquay (2013) 215 Cal.App.4th 883; People v. Tran (May 7, 2013, H036977)__Cal.App.4th_ [2013 WL 1881050].)” The Court of Appeal’s new rule of civil commitmentjury trial waiver is contrary to established law. In the context ofMDOs, sections 2960 through 2981 establish a comprehensive frameworkfor medical treatment of convicted criminals who suffer severe mental disorders that would make them dangerous upontheir release from prison, Sections 2962 through 2968 address treatment of offenders in a confined medical facility as a condition of parole, while sections 2970 through 2972.1 address continued treatment after the expiration of parole. Undersection 2970, a district attorney mayfile a petition for the continued involuntary treatment of an MDO. Recommitment must be ordered if the offender has a severe mental disorder that is not in remission or cannot be kept in remission without treatment, and by reason ofhis severe mental disorder the offender represents a substantial danger of physical harm to others. (§ 2972, subds. (c), (e).) The Legislature has incorporated in MDO recommitment proceedings someprocedures found in criminaltrials. For example, the trial court must advise the offenderofhis right to an attorney andtrial by jury, and the ? Respondentintendstofile petitions for review in Mortimer, Fuquay, and Tran. A similar issue is raised by the defendant’s petition in People v. Garcia (Mar, 29, 2013, H037734) [nonpub.opn.], petn. for review pending,petition filed May 10; 2013, S210636. standard of proofis “beyond a reasonable doubt.” (§ 2972, subd. (a).) If the hearing is by jury, the verdict must be unanimous. (§ 2972, subd.(a).) But section 2972 expressly characterizes a recommitment hearing as “civil” in nature. Nor does the jury trial right under section 2970 implicate the federal due process clause. (People v. Montoya, supra, 86 Cal.App.4th at p. 831.) An MDOhasnoconstitutionalright to a jury in such trial. (§ 2972, subd. (a); People v. Montoya (2001) 86 Cal.App.4th 825, 830; People v. Otis (1999) 70 Cal.App.4th 1174, 1176.) The Sixth Amendment’s right to a jury trial extends onlyto criminal cases (U.S. Const., amend. VI), and the Seventh Amendment’s right to a jurytrial in civil cases is not binding on the states (Hung v. Wang (1992) 8 Cal.App.4th 908, 927). In light of these principles, it was well established, until the decision in this case, that “despite the reference in section 2972 to the criminal law standard of proof, neither the statute nor the California or federal constitution requires other procedural safeguards reserved for a criminal defendant.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1408, 1411; see also Seling v. Young (2001) 531 U.S. 250, 261 [a state’s provision of procedural safeguards in commitment proceedings similar to those afforded in criminal proceedings does notalter the civil nature of the proceedings].) “In a civil cause a jury may be waived by the consentofthe parties expressly as prescribed by statute.” (Cal. Const., art. I, § 16.) As a general rule, a party to a civil case waives a jury by “failing to announcethat a jury is required, at the time the causeis first set for trial.” (Code Civ. Proc., § 631, subd. (d)(4); see also In re Conservatorship ofJoseph W. (2011) 199 Cal.App.4th 953, 967-968[a party to a civil case “cannot without objection try his case before a court without a jury, lose it and then complain that it wasnottried by jury”]; Tyler v. Norton (1973) 34 Cal.App.3d 717, 722 [when defendants proceeded to try their case before a judge without objecting to the absence of a jury, the right to jury trial had been waived: “Defendants cannot play ‘Heads I win. Tails you lose’ withthetrial court”]); Glogau v. Hagan (1951) 107 Cal.App.2d 313, 316 [“If a party goesto a trial without apprising the court of his demandfor a jurytrial he is deemed to have waived such right”]; Pink v. Slater (1955) 131 Cal.App.2d 816, 817; City ofLos Angeles v. Zeller (1917) 176 Cal. 194, 199 [“[W]here parties appear and gototrial without objection before a court, they will be deemed to have waiveda trial by jury”].) In People v. Otis, supra, 70 Cal.App.4th 1174, the Second District Court of Appeal held that an attorney could waiveajury trial, even over the express objection of his client, in a commitment proceeding undersection 2966 (commitment as a condition of parole). (/d. at p. 1176.) Otis recognized that section 2966 expressly requires both the offender and his attorney to waive a jury. (/bid.) At the same time, however, Otis noted two countervailing principles: (1) “Generally in civil cases, an attorney has ‘complete charge and supervision’ to waive a jury”; and (2) section 2966 “concerns persons who have been found by the Board of Prison Terms to be mentally disordered.” (/d. at pp. 1176, 1177.) Given those circumstances, Oris found that “[t]he Legislature must have contemplated that many persons,such as [the offender], 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.” (/bid.) Similarly in People v. Masterson, supra, 8 Cal.4th 965, this court held that an attorney could waive a jury in a section 1368 competency hearing over a criminal defendant’s objection. (/d. at pp. 972, 974.) The court noted that a mental competency proceedingis notitself a criminal action in whichthe state constitutional requirement of an express personal waiver applies. Instead, a competency hearing is a “special proceeding” in which the right to trial by jury is wholly statutory. (Ibid.; see also id. at p. 969; § 1369.) As a result, the defendant’s attorney, as “captain of the ship,” has the powerto waive a jury even in defiance of the client’s wishes: “The sole purpose of a competency proceeding is to determine the defendant’s present mental competence,i.e., whether the defendantis able to understand the nature of the criminal proceedings and to assist counselin a rational manner, [Citations.] Because of this, the defendant necessarily plays a lesser personalrole in the proceeding than in atrial of guilt. How can a person whose competenceis in doubt make basic decisions regarding the conduct of a proceeding to determine that very question?” (Masterson, supra, 8 Cal.4th at p. 971.) In People v. Montoya, supra, 86 Cal.App.4th at pages 830-831, the Fourth District Court of Appeal followed Otis and Masterson. It held a defense attorney could override a schizophrenic client’s right to jury trial in a section 2970 recommitment hearing. Montoya reasonedthat the offender’s mind “did not function normally,” so there was “no reason to believe that he was capable of making a reasoned decision about the relative benefits of a civil jury trial compared to a civil bench trial.” (/d. at p. 831.) This court has similarly ruled that an attorney may waive jury trial in special proceedings to commit a developmentally disabled adult under Welfare and Institutions Code section 6500. (Barrett, supra, 54 Cal.4th 1081.) Relying on Masterson and other authorities discussed above, the court explained: “To encumberthe jurytrial right with a collateral requirement that any waiver bepersonally made by the proposed committee following a formal court advisement would serve no useful purposein this context. This approach does not underminethe fairness of the proceedings in a due process sense, or treat dangerous mentally retarded persons differently from those with whom theyare aligned for equal protection purposes.” (Jd, at p. 1089.) Underthese severalauthorities, the Court of Appeal erroneously failed to apply the “captain of the ship” rule to this case. Further, its new rule, requiring that before MDO benchtrials the court make a prophylactic on-the-record showing of counsel’s authority to waive a jury, conflicts with the decisional law of this court and lower courts. Because the Court of Appeal extended its new proceduralrule to the insanity recommitment scheme,it is necessary to resolve this issue systemically and without regard to the affirmance based on harmlesserror of the now moot commitmentorder in this case. Given the attenuation between the appellate court’s reasoning andits judgment, trial courts cannot be expected to parse the decision below in an effort to distinguish those parts of the opinion considered binding from those parts arguably amounting to dicta. Review is necessary to resolve the conflict created by the Court ofAppeal’s decision andsettle this important issue of law. I]. THE COURT OF APPEAL LACKED AUTHORITY TO FASHION A SUPERVISORY RULE OF PROCEDURE FOR TRIAL COURTS The Court of Appeal exceededits authority in fashioning a new supervisory rule of procedureforstate trial courts. This Court oughtto be the sole locus of authority entitled to adopt statewide supervisory rules ofjudicial procedure. The dissenting opinion of Justice Elia frames the issue well. We quoteit in full: [I]t is not apparentthat appellate courts enjoy general supervisory authority over superior courts’ practice and procedure. ‘“‘The judicial powerofthis 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, whichis chaired by the Supreme Court’s Chief Justice, responsible for adopting “rules for court administration, practice and procedure” 10 not “inconsistent with statute.” (Cal. Const., art. VI, § 6, subd. (d); see Cal. Rules of Court, rule 10.1.) Bystatute, “[e]very court may makerules for its own government and the governmentofits 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 encouragedthe “Judicial Council .. , to adopt rules to provide for uniformity in rules and procedures throughoutall courts in a county and statewide.” (Gov. Code, § 68070, subd. (b).) Someofthe 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: “Whenjurisdiction is, by the Constitution or this Code, or by any otherstatute, 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 benot specifically pointed out by this Code or the statute, any suitable process or mode ofproceeding 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 methodofpractice, 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 ofLos 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 whichenable 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 invokedits “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 ofjudicial procedure to be followed by superior courts’ in exercising their territorially unlimited jurisdiction over 11 habeascorpuspetitions. ([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 poweroverstate 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 poweroverthe courts,directingtrial courts to refrain from instructing juries pursuant to CALJIC No. 17.41.1 on the obligation ofjurors to advise the court of certain juror conduct].)” (Ud. 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 punishmentin this state,[fin.] [the Supreme Court] a fortiori possesses inherent powerto control potential abuses of the writ process”].) The court has also recognized its own supervisory authority over state criminal procedure. (See Jn re Podesto (1976) 15 Cal.3d 921, 938 [high court held, pursuantto its supervisory authority over state criminal procedure, that trial courts should rendera 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 powerover the courts ofthis state,” California Supreme Court directed the Courts ofAppeal to “include in their Wende opinionsa brief description of the facts and procedural history of the case, the crimes ofwhich 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 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.” (/d. 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 12 it.”’ [Citations.]” (Ud. 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 whenthetolling event has concluded”].) © I can endorse the majority’s rules as nonbinding, recommendedpractices to the extent they are helpful in avoiding unnecessary appeals but not as procedural rules controlling local courts. (Typed Opn., pp. 1-4 (conc. opn. of Elia, J.).) CONCLUSION For the reasonsstated, respondent respectfully asks that review be granted. Dated: May 30, 2013 SF201 1202289 20695823.doc Respectfully submitted, KAMALAD. HARRIS Attorney General of California 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 Attorneysfor Respondent 13 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 4,094 words. Dated: May 30, 2013 KAMALA D. HARRIS Attorney General of California SAHRe JOHN H. DEIST Deputy Attorney General Attorneysfor Respondent EXHIBIT A 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 commitmentif at the end of the period the MDOposes a danger to others dueto his or her mental disorder. Under the Act, the MDO has theright 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 andthe district attorney.” (Pen. Code, §§ 2966, subd. (b); 2972, subd.(a).)' Defendant claims that an MDO hasthe 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 claimsthat counsel has exclusive control over whetherto waivea jury trial and can do so even over the MDO’sobjection. ' All unspecified statutory references are to the Penal Code. Wehold that the waiver provision does not require a personal waiveror give counsel exclusive control. Rather, counsel may waive a jury at the MDO’sdirection or with the MDO’s consent; and whenthere is cause to doubt the MDO’s capacity to determine whether a benchorjurytrial 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 jurytrial and ensure compliance with the statute, we further hold that when the court conducts a benchtrial, 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 claimsthat the court erred in conducting a benchtrial on the petition to extend his commitment andthat the error violated his rightto a jurytrial. Weaffirm the extension order. Ill. PROCEDURAL HISTORY In 2004, defendant was convicted offirst degree burglary and false imprisonment and sentenced to prison.” (§§ 459, 460, 236, 237.) In 2006, defendant was deemed an MDOand committed to ASH for treatment as a condition of parole. (§ 2962.) Thereafter, defendant’s commitment was extended a numberoftimes. (§§ 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 commitmentonce again. On July ? The record reveals that defendant entered the homeof an 85-year-old woman at night. She awoke to find him naked and lying on top of her. Herestrained her with his legs and kept her pinned downbypulling her hair. The woman managed to escape, and whenpolice entered, they found defendantsitting naked on thetoilet, eating pork chops and speaking incoherently. 19, 2011, after a benchtrial, the court sustained the petition and extended defendant’s commitment to October 19, 2012. IV. THE EXTENSION HEARING Atthe 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 memberof defendant’s treatment team but met with defendant for a forensic evaluation andlater drafted a report recommending an extension of his commitment. Dr. Perry testified that defendantsuffers from “schizoaffective disorder, bipolar type,” which defendant manifests by being paranoid that other patients are stealing from him and having grandiose delusionsthat 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 understandits purpose, but he exhibited “thought disorganization,” in that his thinking wasnot 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 underan 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 fora time, defendant’s medication regimen was stopped because he developed some medical complications. Dr. Perry reported that defendantrealizes that it is good for him to attend hospital group therapy sessions, and he does so about 70 percentof the time. Hefurther explained that before being considered for release, defendant would haveto develop a wellness and recovery plan consisting of strategies to help him identify the things that trigger his symptoms and manage those symptomsandhis behavior in the 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! andirrational thinking and impulsive and bizarre behavior similar to that which had accompanied his commitmentoffense. For this reason, Dr. Perry did not believe that defendant would do better in a lessrestrictive . placement. V. CONTENTIONS Defendant contendsthe court erred in failing to advise him ofthe right to a jury trial and conducting a benchtrial. 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 wasfirst called on April 6, 2011. At that time, counsel was appointed, and counsel waived defendant’s presence because he wasat Atascadero State Hospital. The case called again on April 29, 2011, then May 13, and then June3. 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 wanteda 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. 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 whetherto have a benchorjurytrial. 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 benchtrial. 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,andthe issues are otherwise likely to evade review dueto the time constraints ofMDO 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. (Jn re Conservatorship ofPerson ofJohn 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.) VII. THE MDO COMMITMENT SCHEME AND EXTENSION PROCEDURE Whenpersons 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 commitmentto a state hospital for treatment until their disorders can be kept in remission. (/n re Qawi (2004) 32 Cal.4th 1, 9 (Qawi); see Lopezv. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez) [the MDOAct 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 commitmentphase, once parole is terminated. If continued treatment is sought, the district attorney mustfile 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.”? To obtain an extension, the district attorney must prove, and thetrier 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 ofhis or her right to be represented by an attorney andofthe right to a jurytrial. The attorney for the person shall be given a copyofthe 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 underthis section shall be proof beyond a reasonable doubt, andif the trial is by jury, the jury shall be unanimousin its verdict. Thetrial shall be by jury unless waived by both the person andthe district attorney. The trial shall commencenolater than 30 calendar daysprior 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), (€).) VIII. PERSONAL WAIVER VERSUS COUNSEL’S EXCLUSIVE CONTROL Asnoted, defendant claims the Act requires an MDO’spersonal 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.‘ The courts concluded that an MDO’s personal waiveris not required for two reasons: the statutory language does not expressly say so; and counsel must be able waive on behalf of an MDO wholacksthe capacity to determine whatis 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 Ofis, 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 andthe district attorney,” meant that only the person—i.e., the MDO—could waivethe jury trial. (Ofis, 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 * Ofis dealt with section 2966, subdivision (b) and Montoyadealt with section 2972, subdivision (a), but both sections require the court to advise the MDOofthe right to a jury trial and conduct a jury trial “unless waived by the person and the district attorney.” 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 opinedthat if the Legislature had intendedto require.a personal waiver, it would have madeits intent clear and unambiguous, (/bid.) The court further explained that “[s]ection 2966 concerns persons who have been found by the Board of Prison Termsto be mentally disordered. The Legislature must have contemplated that many persons, such as Otis, might not be sufficiently competent to determine their own bestinterests. There is no reason to believe the Legislature intended to leave the decision on whethertrial 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 Ofis 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. (dd. at pp. 828-829.) In concluding otherwise, the court followed Ofis, agreeing that the statutory language did not expressly require a personal waiveror clearly preclude a waiver by counsel andthat the Legislature could not have intended to require a personal waiver and thereby deny counselthe 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 andnotfor others.” (Montoya, supra, 86 Cal.App.4th at p. 831.) However, it noted that the defendant’s mind wasnot 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.) Weagree with these courts’ view of the statutory language. When engaging in statutory construction, “[w]e begin with the statutory language becauseit is generally the mostreliable indication of legislative intent. [Citation.] Ifthe statutory languageis 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 languageis 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 thestatute is a part. (People v. Woodhead(1987) 43 Cal.3d 1002, 1008.) The waiverprovision does not expressly require a “personal” waiver by the MDO. Andthe 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 waiveris effective only when “personally” made by the MDO. Nordoes 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 whenit has intendedto do so,it has used clear and unambiguous language. (E.g., § 861, subd. (a)(1) [requiring personal waiverofstatutory right to continuous preliminary examination]; § 977, subd. (b)(1) [same re waiver of presence at arraignment]; Welf. & Inst. Code, § 1801.5 [samere rightto a jury in trial to extend juvenile detention].) Furthermore, interpreting the language to exclude waivers by counsel results in consequencesthat, in our view,are illogical and anomalousandtherefore, to be avoided. (People v. Martinez (1995) 11 Cal.4th 434, 448.) First, we note that for a variety of reasons, MDOsbeing treated in state hospitals often choose not to appear until the day of trial, courts do not automatically order them transported to court for everypretrial 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’sbehalfin his or her absence. We cannot conceive ofa logical reason to prohibit counsel from waiving a statutory right to a jury trial at the MDO’sdirection or with the MDO’s express authorization butin his or her absence and instead compel the court to order the MDO’stransportation 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. J, § 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 groundsin 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 ofMaldonado (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].) Wefurther note that competencyto standtrial is not a prerequisite in a civil proceeding to commit a person whois dangerous dueto mentalillness. (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 whatis in their own bestinterests and makea rational decision. Under such circumstances, an MDO maynotbe able to knowingly and intelligently waive the right to a jury trial. If an MDOis incompetent, and in a particular case counsel believes that a jury waiveris in the MDO’sbestinterests, requiring that MDO’spersonal 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 jurytrial 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 consequencesthat would flow from interpreting the waiverprovision literally and restrictively to require a personal waiver. Forthat reason, weconsider it unreasonable to infer such a restrictive and exclusive legislative intent from the statutory language. (Cf. Conservatorship ofMary 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 underthe guise of construction, rewrite the law or give the wordsan effect different from the plain and direct import of the terms used.” (California Fed. Savings & Loan Assn. y. City ofLos Angeles (1995) 11 Cal.4th 342, 349; accord Estate ofGriswold (2001) 25 Cal.4th 904, 917.) Nor may weinsert requirementsor limitations that would cause the statute to conform to a presumedintent 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. ofChiropractic Examiners (2005) 130 Cal.App.4th 609, 617.) Given our analysis of the statutory language, policy considerations, and potential consequences, we declineto 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.* 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 advisementprovision (see Los Angeles County Metropolitan Transp. Authority y. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106-1107), and together, they do not reasonably suggesta 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 doso. 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.® (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” knowsthat he or she has the rightto a jurytrial. > Weobserve that the court’s custom andpractice of obtaining waivers from counsel in chambersoff 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. ® We mean “mandatory”in its obligatory, rather than jurisdictional, sense as in a required, rather than discretionary, action. (See Morris v. County ofMarin (1977) 18 Cal.3d 901, 908 [discussing distinction].) 12 Wepresumethat 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 purposeand function appearin the waiver provision, which requires jury trial unless waived by “the person.” Although, as discussed above, the phrase “waived by the 909?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 advisementare self-evident: to inform the MDO ofthe right to a jurytrial so that he or she can decide whether to waive it. (See Peoplev. Barrett (2012) 54 Cal.4th 1081, 1109 (Barrett) [a jury advisement enables person to comprehendand control decision to “request a jury trial”]; People v. Koontz (2002) 27 Cal.4th 1041, 1071 [purpose of standardized Faretta advisementsis “to ensure a clear record of a knowing and voluntary waiver of counsel”); § 1016.5, subd, (d) [required advisementof potential immigration consequencesintended to inform decision of whether to waive rights and enter plea].) | Weobservethat 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. Forthis reason,it is not reasonable to infer exclusive control becauseit would effectively render the advisement provision meaningless, statutory surplusage. (See McCartherv. Pacific Telesis Group (201 0) 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 MDOcan waiveajury trial so too we decline to limit the phrase by inferring that counsel has exclusive control over the decision. Weacknowledge 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 thelitigation and, indeed, to bind the client in these matters”; in other words, “counsel is captain of the ship.” (/n 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 waiverin 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 ajury.” (Otis, supra, 70 Cal.App.4th at p. 1176.) However, we concludethat the “captain of the ship” rule in civil litigation does not govern whether counsel has exclusive authority to waive a jury in MDOproceedings. In Zurich, supra, 12 Cal.2d 98, the court held that counsel’s insistence on a jury trial did not constitute good causefor firing him and thus bar him from later seeking a share of her judgment. Citing the general rule, the court concludedthat the attorney had the right and authority to insist on a jury trial. (/d. at pp. 105-106.) Although Zurich did not involve a jury waiver, the court cited a numberof cases and authorities, including Shores Co. v. Iowa Chemical Co. (1936) 222 Iowa 347 [268 N.W. 581] lowa). 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 waiverat the time, he had madenoeffort to setit 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. (/d. 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 whichthe state seeks to involuntarily commit a person to a state hospital for treatment.’ Neither case addressed whether counsel had such authority in a “special proceeding”; and neither case involveda statute that expressly required a jury advisement andjury 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, wedisagree. Masterson, supra, 8 Cal.4th 965 is a much morepertinent case on the issue becauseit involved a special proceeding to determine whether the defendant was competent to standtrial on criminal charges. (§§ 1368-1370.) There, counselstipulated to an | 1-person jury over the defendant’s objection. In upholding counsel’s authority to do so, the court more broadly concluded that in competencytrials, counsel has exclusive control overthe jury issue. The court noted the “captain of the ship”rule but did not base ” Civil commitmenttrials 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 (Sth ed. 2008) Actions, § 65, subd. 20, pp. 139-140; e.g., People v. Yartz (2005) 37 Cal.4th 529, 535 [SVP commitmenttrial under Welf. & Inst. Code, § 6603]; People v. Masterson (1994) 8 Cal.4th 965, 974 (Masterson) [competencetrial under § 1369]; In re Gary W. (1971) 5 Cal.3d 296, 309 [trial extending juvenile commitment under Welf. & Inst. Code, § 1800]; Inre 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 jurytrial right at issue.” (Ud. 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 defendantis 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 competenceis in doubt makebasic 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 doubtis 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 jurytrial. (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 defendantofright to jury in competencetrial because counsel decides whetherto havea jurytrial].) Under Masterson, therefore, if counsel has exclusive control, counsel derivesit not so much from the “captain of the ship” rule but from the nature of MDO proceedings and the jury right at issue. Morerecently, in Barrett, supra, 54 Cal.4th 1081, the Supreme Court provided further guidance whenit decided whether counsel had exclusive contro! in a proceeding to commit a mentally retarded person who is dangerous. (Welf. & Inst. Code, § 6500.)* ® The Barrett court noted thatat all pertinent times, the statutory scheme had used the terms “mentally retarded” and “mental retardation.” The court acknowledged that subsequent “legislative enactments and proposed amendmentsreplace references to ‘mental retardation’ under section 6500 et seq. with such terms as ‘developmental 16 In Barrett, the court conducted a benchtrial and committed the defendant. (Barrett, supra, 54 Cal.4th at pp. 1088-1092.) On appeal, she claimedthat the federal Constitution provided the right to a jury trial and required a jury advisement and personal waiver. (/d. 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. (Ud. at pp. 1097, 1100.) However, the court rejected advisement and waiver requirements becauseit 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 eee 66 6section 6500, mental retardation involves significantly subaverage general intellectualfunctioning existing concurrently with deficits in adaptive behavior,’ and appearing in the ‘developmentalperiod.’ ” ’ [Citations.]” (/bid., italics in Barrett) The court opined that “the significant cognitive and intellectual deficits that the condition entails, which appearearly 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 commitmentpetition 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, andits role in providing a foundation for the petition and commitmentprocess, is underscored by the verification requirement. (§ 6502.) ... [{] Second, wherea section 6500 petitionisfiled,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 someonelike Barrett, whois 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 suchtactical 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 commitmentproceedings, the defendant’s alleged mental state—e.g., incompetency and mental retardation— disables the defendant from making reasoned decisions concerning whatis 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 aboutajury 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 MDOproceedings. Presumably, the argumentis that, like defendants whose competence has been questioned or persons diagnosed with mental retardation, MDOsare categorically unable to make reasoned decisions, and therefore counsel must be able to decide the jury issue. Wereject this argument and find the Attorney General’s reliance on Masterson to be misplaced. First, there are significant differences between an MDOextensiontrial and the proceedings in Masterson and Barrett. The purpose of a competencytrial 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 competencytrial. 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 developmentaldisability 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 competencyto stand trial. In other words, the mentality of persons in both contexts is comparable, both may be assumedto be incapable of determining their own best interests, and therefore the scope of counsel’s authority should be the same. Unlike a competencytrial, an MDOtrial does not involve a determination of competency. Its purposeis to determine whether an MDOis 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 meanthat the scope of counsel’s authority should be the same because the mental capacity of the persons in each contextis different. More specifically, although it may be reasonable to categorically assume that mentally retarded persons lack the capacity to determine their own bestinterests, it is not reasonable to make that categorical assumption about MDOs. Barrett makesthis precise point. Concerning the capacity to function in a competent manner,andspecifically to comprehend a jury advisementandrationally control the jury decision, the Barrett court distinguished those diagnosed with a mental disease, defect, or disorder from those diagnosed with mentalretardation. In Barrett, the defendant claimed that the Constitution required a jury advisement and personal waiver underprinciples 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 dueto 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 schemesare 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 waiveajurytrial. (Barrett, supra, 54 Cal.4th at p. 1108.) What distinguished persons under the two schemes wastheir “distinct ‘mentality’ ’—i.e., mental retardation versus mentalillness. (Ibid.) The court explained that “[m]ental illness and related disorders are said to be conditions that may arise suddenly and,for thefirst time, in adulthood. [Citation.] The 20 LPSAct processitself 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, mentalillness 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 tofunction 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 ofthe 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 commitmentprocessitself raises substantial doubts about their cognitive and intellectual functioning sufficient to limit the personal and proceduralrole they play. It follows that the two groupsare not similarly situated as to the function that Barrett implies an advisementlike section 5302 serves—comprehending and controlling the decision whether to request ajury trial. Thus, any disparate statutory treatment with respect to jury trial advisements does not deprive personslike Barrett of equal protection of the law.” (Barrett, supra, 54 Cal.4th at pp. 1108-1109, first italics in Barrett, second italics added.) * In 1981, the court in Cramer v. Gillermina R., supra, 125 Cal.App.3d 380 similarly held that because “mentalillness and mental retardation are separate and distinct conditions which require different treatment and/or habilitation,” their differing statutory schemes did not violate equal protection. (Jd. 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 competenceis questioned or persons diagnosed with mental retardation, those suffering from a mental illness can comprehendand 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 comprehendandcontrol the jury decision. Moreover, those requirements further distinguish Masterson and Barrett becausethe 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 whatis 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, (/d. 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 notbyitself mean that individuals are incompetent to participate in their own medical decisions. [Citations.]” (Ud. at p. 24.) In People v, Wolozon (1982) 138 Cal.App.3d 456, the court held that despite a finding ofNGI 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 defendanthasthe 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 Generalrelies on Otis and Montoya as support for counsel’s exclusive control. Again, however, the Attorney General’s reliance is misplaced. Weunderstand Otis and Montoyain 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 understoodin thelight of the facts and the issue then before the court”].) As noted, in Otis, the court upheld counsel’s decision to waive a jurytrial 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 wasnot 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 MDOappearsto be incapable of determining whether a benchor jury trial is in his or her best interests, the MDO mustact through counsel, and counsel has exclusive authority to decide even over the MDO’sobjection. Neither case, however, should be read more broadly to hold that counsel controls the jury issue regardless of whether the MDOis competent to understand the advisement and makea reasoned decision. This is especially so because neither case addressed the purpose and function of the mandatory jury advisement. Wereview anothercase 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 foundnot 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 whenthe 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 whois ‘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 evidencehe 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. (/d. at p. 1158.) The court asked, “Can such a person intelligently invoke or waive the rightto a jury trial? Is such a person competent to meaningfully understand whoshould make the determination of whether his commitment should be extended?” (/bid.) The court answered, “Commonsensedictates 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 demandforjury, appellant was medicated, experiencing mood swings, and was so belligerent and disruptive that he had to be removed from the courtroom.” (bid.) In support ofits analysis, the Powe// court cited Angeletakis, supra, 5 Cal.App.4th 963. There, the defendant faceda 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 NGIdid not have to be 24 competentata trial to extend his or her commitment. (/d. at pp. 967-968; Juarezv. 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 treatmentfor 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 competenceto stand trial and dangerousness to others due to a mentaldisease, 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 andassist 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 waivejury at the extensiontrial, his or her attorney may waive jury on his or her behalf. Thatis 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 wasin his or her best interests. (/d. 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 ofthat case which demonstrated that the NGI lacked the capacity to determine what was in his ownbest 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 rationalefor recognizing counsel’s exclusive authority. Weconsiderit helpful at this point to summarize ourresolution ofthe parties’ interlocking but opposing claims and our conclusion concerning the meaning of the waiverprovision and the scope of counsel’s authority. The provision does not require an MDO’s personal waiveror 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’sdirection 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 whatis in his or her bestinterests. Wenowreturn to defendant’s claim that the court committed reversible error in conducting a benchtrial. C. Error and Prejudice The propriety of defendant’s benchtrial turns on the validity of counsel’s waiver, which in turn hinges on whether defendant knew he hadtheright to a jury trial and directed or knowingly consented to counsel’s waiver.'® The court did not advise the defendant ofhis 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 . defendantfirst appeared in court on the day ofthe 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 bestinterests. 26 have a benchtrial or wanted a jurytrial instead. Nevertheless, on appeal, weare 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 ofjustice.” (Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This meansthat 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 reachedin the absence ofthe 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 presumptionsto defeat a judgment. It will never presumethat 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 indulgedin 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 burdento affirmatively establish error and then demonstrate that it resulted in a miscarriage ofjustice 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 defendantas 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 counselto 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 ofhis 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 showingto the contrary, “[a] reviewing court will indulge in a presumption that counsel’s performancefell within the wide range of professional competenceand that counsel’s actions and inactions can be explained as a matter of soundtrial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211; Conservatorship ofIvey (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].)' \ Finally, we note that this was notthe first extension of defendant’s MDO commitment, and the record does not suggest that defendant was unawareofhis 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 doneso orthat defendant wanted a jury trial and objected (or would have objected) to counsel’s waiver. ‘! We do notintend to suggest that it was improperor 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 advisementis not the only way for the court to ensure that an MDOis made awareofthe right to a jury trial. In our view, the practical difficulty in advising an MDO committedto a state hospital could easily be solved with an advisement and waiver form for the MDOto 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.'? 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 oughtnot to act uponthe stipulation, nor can the adverse party claim the right to enforce a judgmentrendered by reason thereof.” (Knowlton v. Mackenzie (1895) 110 Cal. 183, 188.) Last,it is settled that the erroneous denial ofa statutory right to a jury trial is subject to harmless-error review under the Watson" test which asks whetherit 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.) Wenote 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. Amongother things, he reported that within the previous few weeks, defendant had exhibited delusional andirrational thinking and impulsive and 2 Tf in fact,defendant was unawareofhisright 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 corpusto challenge his commitmenton the groundofineffective assistance of counsel. (See People v. Gray (2005) 37 Cal.4th 168, 211 [claims grounded in facts outside the record can be raised by habeaspetition]; Jn 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 commitmentoffense. Defendantdid 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. Underthe circumstances and even if we assumeerrorin failing to advise and conducting a jury trial, we do not considerit 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 MDOtrial 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 Asour 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 benchtrial. It does not show whether defendant knew hehadthe right to jury trial and whether counsel waived at defendant’s direction or with his consent. In fact, the recordinitially did not even reveal that counsel expressly waived a jurytrial. Thesilence of the record, together with the presumptions that guide appellate review and the harmlesserror test, made defendant’s appellate burden an insurmountable hurdle and effectively assured affirmance regardless of whether defendant was awareofhis 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 concernitself with whether the MDO knew aboutthe 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, wefind this troubling. The United States Supreme Court has repeatedly recognizedthat civil “commitment for any purpose constitutes a significant deprivation ofliberty that requires due process protection.” (Foucha v. Louisiana (1992) 504 U.S. 71, 80.) “Moreover,it is indisputable that involuntary commitmentto a [psychiatric] hospital after a finding of probable dangerousnessto self or others can engender adverse social consequencesto the individual. Whether we label this phenomen[on] ‘stigma’ or chooseto 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 choosethetrier of fact is no less valuable to an MDOthanitis to a criminal defendant. Moreover, although no constitutional provision guarantees an MDOtheright 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 mandatesis frustrated and an MDO’srightto a jury trial is undermined whentogethera 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 MDOwasadvised or whetherajury trial was validlywaived, 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 complianceis a recordthat 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].)'* In particular, we hold that if the court conducts a benchtrial and the MDO did not personally waive the right to a jury, the record must showthat the court advised the MDO ofthe right to a jury or, if the court was unable to do so, that the MDO was made awareofthe right before counsel waived it. The record must also show that in waiving a jury trial, counsel acted at the MD0O’sdirection 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 wasin his or her ownbestinterests. Finally, a procedural rule requiring a clear and explicit record concerning the advisement and waiver requirements imposeslittle if any additional burden on the court and parties. What slight burden it might imposeis clearly outweighed by the importance the Legislature has attached to an MDO’srightto a jury trial and the statutory requirements designed to protect it. In this regard we note that the court maystill 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."* 4 E.g., People v. Sumstine (1984) 36 Cal.3d 909, 914 [creating a rule of procedure permitting a defendantto collaterally attack the validity of a prior felony conviction on the ground he wasnot 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 consequencesof admitting prior conviction allegation].) 5 Wenote that recently, during oral argumentin a similar MDOcase,the Attorney General concededthat 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 commitmentis affirmed. RUSHING,P.J. I CONCUR: PREMO,J. acuity, his understanding of hisjury trial right, and his ability to comprehend and cooperate with his attorney’s efforts. 33 ELIA,J, concurring: I respectfully concur in the judgmenton the ground noreversible error has been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) A trial court's judgmentor order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "',.. All intendments and presumptionsare indulged to support it on matters as to whichtherecordis silent, and error must be affirmatively shown. Thisis not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]" (bid.) | Onthe appellate record before us, we must presumethat appellant knew ofhis right to a jury trial and he consented to a court trial. Consequently,it is unnecessary to decide whether counsel may waive a competentclient'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 US. 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 cannotaffect 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 Dogsfor 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 makesthe 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.) Bystatute, "[e]very court may makerules for its own governmentand the governmentofits 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: "Whenjurisdiction 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 ofthis 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 ofLos Angeles County (1955) 43 Cal.2d 815, 825, fn. omitted.) "'In addition to their inherent equitable - powerderived 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 anystatutory authority. [Citations.]...' [Citation.]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) On occasion, the California Supreme Court has invokedits "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 ofjudicial 2 procedure to be followed by superior courts' in exercising theirterritorially unlimited jurisdiction over habeas corpuspetitions. ([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 overstate 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 overstate 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 overthe courts, directing trial courts to refrain from instructing juries pursuant to CALJIC No. 17.41.1 on the obligation ofjurors to advise the court of certain juror conduct].)" (/d. 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 powerto control potential abuses of the writ process"].) The court has also recognized its own supervisory authority over state criminal procedure. (See Jn re Podesto (1976) 15 Cal.3d 921, 938 [high court held, pursuantto its supervisory authority over state criminal procedure,thattrial courts should rendera 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 exerciseofits "supervisory poweroverthe courts ofthis state," California Supreme Court directed the Courts of Appealto "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," (Jd. 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 demandsit."' [Citations.]" (/d, at p. 100, fn. omitted; see Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 ["effect of equitabletolling is that the limitations period stops running duringthe tolling event, and begins to run again only when the tolling event has concluded"].) I can endorse the majority's rules as nonbinding, recommendedpractices to the extent they are helpful in avoiding unnecessary appeals but not as procedural rules controlling local courts. ELIA,J. People v. Blackburn H037207 Trial Court: Trial Judge: Attorney for Defendant and Appellant Bruce Lee Blackburn: Attorneys for Plaintiff and Respondent The People: People v, Blackburn H037207 Santa Clara County Superior Court No.: BB304666 The Honorable Gilbert T. Brown Rudy Kraft under appointment by the Court of Appeal for Appellant Kamala D.Harris 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 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Blackburn No.: H037207 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On May 31, 2013, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Rudolph G,Kraft The Honorable Jeffrey F. Rosen Attorney at Law District Attorney P.O. Box 1677 Santa Clara County District Attorney's Office San Luis Obispo, CA 93406-1677 70 W. Hedding Street (2 copies) San Jose, CA 95110 Court of Appeal of the State of California Attn: Executive Director Sixth Appellate District Sixth District Appellate Program 333 West Santa Clara Street, Suite 1060 100 North Winchester Blvd., Suite 310 San Jose, CA 95113 Santa Clara, CA 95050 Santa Clara County Superior Court Criminal Division - Hall of Justice 191 North First Street San Jose, CA 95113-1090 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on May 31, 2013, at San Francisco, California. t S. Chiang “ ioea , Declarant Signature SF2011202289 20698024.doc
