PEOPLE v. TRAN

Appellant’s Petition for Review

Cal.June 12, 2013

S 2 1 1 5) 2 9 | a SUPREME COURT FILED INTHESUPREMECouRT =YN 12208 Frank A. McGuire Clerk STATE OF CALIFORNIA Depuly PEOPLE OF THE STATE OF CALIFORNIA _ Sixth District Court OfAppeals No. Plaintiff and Respondent, H036977 Santa Clara County VS. Super.Ct.No. 205026 DAWN QUANGTRAN, Defendant and Appellant. / PETITION FOR REVIEW Appeal from a Judgmentof the Superior Court of California County of Santa Clara, State of California HONORABLEGILBERTT. BROWN, JUDGE Carl A. Gonser Attorney at Law State Bar No. 95151 P. O. Box 151317 San Rafael, CA 94915-1317 (415) 459-3559 Court Appointed Attorney For Appellant Dawn Tran Underthe Sixth Appellate District Appellate Program’s Independent Case System TABLE OF CONTENTS PAGE ISSUE PRESENTED FOR REVIEW 2 DISCUSSION REVIEWIS JUSTIFIED IN THIS CASE TO DECIDE 2 AN IMPORTANTISSUE OF LAW WHETHER THE TRIAL COURT MUST EXPRESSLY ADVISE A DEFENDANTOF HIS RIGHT TO A JURYTRIAL, AND THE DEFENDANT MUST PERSONALLY WAIVE HIS RIGHT TO A JURY TRIAL IN A PETITION TO EXTEND HIS COMMITMENTUNDER§ 1025.5(b). CONCLUSION 7 CERTIFICATE OF COUNSEL 8 TABLE OF AUTHORITIES Page Cases People v. Barrett (2012) 54 Cal.4th 1081 2-5 Statutes Penal Code § 1026.5(b) 1-4,7 Welfare & Institutions Code § 5203 3 IN THE SUPREME COURT STATE OF CALIFORNIA PEOPLEOFTHE STATE OF CALIFORNIA, Sixth District Court OfAppeals No. Plaintiff and Respondent, H036977 DAWN QUANGTRAN, Santa Clara County Super.Ct.No. 205026 Defendant and Appellant. / TO: THE HONORABLECHIEF JUSTICE AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Defendant and Appellant DAWN QUANGTRAN respectfully petitions the court for review of a published opinion by the California Court ofAppeals for the Sixth District, filed on May 7, 2013,affirming the trial court's order granting the respondent's petition to extend Mr. Tran's commitmentto a state mental hospital under Penal Code § 1026.5, subd. (b), even though Mr. Tran wasnotexpressly advisedof, and did not personally waive, his statutory right to a jury trial (§ 1026.5, subd. (b)(3) and (4).). That opinion is attached hereto as an exhibit. In support ofhis petition for review, DAWN QUANG TRAN alleges as follows: ISSUES PRESENTED FOR REVIEW WhetherPenal Code § 1026.5, subds. (b)(3) and (4) and the state and federal due process and equalprotection clauses require the trial court to expressly advise a defendantofhis rightto a jury trial, and require the defendantto personally waivehisright to a jury trial. DISCUSSION REVIEW IS JUSTIFIED IN THIS CASE TO DECIDEAN IMPORTANT ISSUE OF LAW WHETHERTHE TRIAL COURT MUST EXPRESSLY ADVISE A DEFENDANT OF HIS RIGHT TOAJURY TRIAL, AND THE DEFENDANT MUST PERSONALLY WAIVE HIS RIGHT TO A JURYTRIAL IN A PETITION TO EXTEND HIS COMMITMENT UNDER§ 1026.5(b). This Court recently said that under Penal Code § 1026.5, subds. (b)(3) and (4), the trial "court must advise the personofthe right to a jury trial, and that waiver mustbe by both the person and the prosecuting attorney."(People v. Barrett (2012) 54 Cal.4th 1081, 1110.) Here the record doesnot showthatthe trial Court ever advised Mr. Tranofhis rights to a jury trial or that Mr. Tran personally waivedhis rights to a jury trial, required by § 1026.5, subds.(b)(3) and (4). And, althoughthesettled statementhere saysthatoffthe record Mr. Tran's attorneyaskedfor a court, rather than a jury trial, nothing in the record showsthat Mr. Tran even knew hehadtheright to ajury trial. So, the fact that Mr. Tran neverpersonally asked for a jury trial does not meanthathe waived his right to a jury trial. For, how can someone waivea right he doesnot knowexists? Mr. Tran hasthestatutory and constitutional rights to make an informed decision whetherto personally waive jury trial. In Barrett, this Court looked at Welfare and Institutions Code § 5203 (the Lanterman-Petris-Short, or "LPS", Act) that has the same requirements of an advisement andpersonalwaiver ofa jury trial as does § 1026.5(b), and foundthat LPSpatients could benefit from an advisementof the right to a jury trial. Like LPS committees, NGIs are not necessarily incompetentnor do they necessarily have a reduced ability to understand and makedecisions about the conductofthe proceedings. Mr. Tran would certainly benefit from being advised of his statutory right to a jury trial. In its opinion here, the Court ofAppeals recognized the importance of an advisementto a personlike Mr. Tran, who has a right to choose whowill makethe decision thatwill shape hislife. The Court ofAppeals consideredthe right to choosethetrieroffact to be as valuable to an NGIasit is to a criminal defendant. "...[T]he Legislature ...considered the right important enough to require judicial advisementunless validly waived."(At p. 36.) Although in Barrett this Court did not decideif the LPS Act, which has the same languageasthestatute in our case, § 1026(b), requires a personal waiver from the committee, it did assume"for the sake of argument"that the statute does require a personal waiver. As this Court recognized, §1026(b) requires the "person" to waive the right to a jury trial. Throughoutthe statute the Legislature means the person being committed whenit mentions the "person". Thus, the statute's plain language expressly requires a personal waiver by Mr. Tran, not merely byhis attorney off the record. The requirementof a personal waiveris important to ensure that the person being committed knowsthathehastheright to a jury trial. Here the recordis silent on that score. It does not show that anybody, whetherthetrial Court, the prosecutor, or Mr. Tran's own attorney, actually told him thathe had theright to a jury trial. The statute here codifies long-standingrights to a jury trial. At a minimum Mr. Tran should know abouthis rightsto a jury trial. Otherwise, how canhedecide to waivethis importantright about who will decide his future? Without knowledgeofit, the right to a jury trial becomes meaningless. If, without telling him abouthis rights, his attorney can waive a jury trial, the statutory guarantee ofthe right to a jury trial is hollow. And, an uninformed waiverofsuch a critical right violates state andfederal due process and equalprotection. Underdueprocess and equal protection principles, Mr. Tran is similarly situated to LPS Act candidates. The Court expressly refrained from addressing under what circumstances an LPS candidate may,either acting alone, or through counsel, waive a jury trial. It assumed for the sake of argumentthat the statute required advisement and personalwaiver. (People v. Barrett, supra.) This case presents that important issue, whichjustifies review. This importantissueoflaw is likely to recur. Here, the Court should decide that Mr. Tran mustbe advised of and personally waive a jury, and in the absence of such advisementand waiver, the commitmentorder should be reversed. CONCLUSION Becausethis case presents the important issue of law whether§ 1026.5(b) requires advisementandpersonalwaiverofthe right to a jury trial, review is necessary. Mr. Tran asks the Court to reverse the order extending his NGI commitmentbecause he wasnotadvised of, nordid he personally waivehis rightto a jury trial. Dated: ¢/// 1a Respectfully submitted: C20Loco Carl A. Gonser CERTIFICATE OF COUNSEL AL;certify that this Petition for Review contains 1,195 wordsin Windows7. Dated: June 7, 2013 C0 _L.-— CARL A. GONSER Attorney for Appellant, Dawn Q. Tran CIE DORR E em mesa PNAAhoe 3 Atsan Thome Ma ve Gry CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA _ . Court af Appeal « Sixth app vig SIXTH APPELLATE DisTnicT & gj 4, & MAY 07 2013 THE PEOPLE, H036977 MICHAEL J. YERLY, Clork Plaintiff and Respondent, Super.ClNo.205530 DEPUTY Vv. DAWN QUANG TRAN, Defendant and Appellant. I. INTRODUCTION Defendant Dawn Quang Tran pleaded not guilty by reason of insanity (NGI) to a sexual offense and was committed to a state mental hospital for treatment. (Pen. Code, § 1026.5, subd.(a).)’ Before the commitment expired, the Santa Clara County District Attorney filed a petition to extend it. (§ 1026.5, subd. (b).) At that time, thetrial court wasrequiredto “advise the person namedin thepetition . . . of the rightto a jury trial” (§ 1026.5, subd. (b)(3)) and conducta jury trial “unless waived by both the person and the prosecuting attorney” (§ 1026.5, subd. (b)(4)). At a pretrial hearing, the court met with defense counselandthe prosecutor in chambersto discuss procedural matters. At that time, both parties waived a jury trial off I “Technically, once a defendant has been found notguilty by reason ofinsanity, he is no longera criminal defendant, but a person subjectto civil commitment.” (People v. Lara (2010) 48 Cal.4th 216, 222, fn. 5.) Weshall refer to such persons as defendants or NGIs rather than “committees”or “persons committed.” All unspecified statutory references are to the Penal Code. the record. Thereafter, defendant appeared at the benchtrial after which the court sustained the petition and extended his commitment. On appeal, defendant claims he was denied the right to a jury trial becau se the court failed to advise him ofhis right to a jury and erred in accepting co unsel’s waiver. He arguesthat the court was required to obtain his express, personal wai ver. The Attorney General counters that the bench trial was proper because, as a rule, counsel in NGI commitmentcases has exclusive control over whether to have a ben ch or jury trial. We concludethat section 1026.5 does not require an NGI’s personaljury trial waiver. Counsel may waive a jury at the NGI’s direction or with the NGI’ s knowledge and consent, and counsel mayalso do so even over a defendant’s objection , particularly when the defendantis not sufficiently competentto determine whatis in hi s or her best interests. To protectthe right to a jury trial and ensure compliance with the statute, we further hold that when the court conducts a benchtrial, the record mustaf firmatively establish the circumstancesandvalidity of the jury. II. STATEMENT OF THE CASE In 1998, defendant Tran pleaded notguilty by reason of insanity to lewd and lascivious conduct with a child under 14.2 He was committed to a state ho spital for treatment, and his commitment has been extended three times.? On April 1, 2011, before 2 The commitment offense occurred on June 18, 1997. Defendant wasvisiting the home ofa friend whose mother was babysitting. At one point, the moth er heard a child scream in another room. The mother responded and found defendantin h is underwear with his penis exposed standing over a four-year-old child whose pants a nd underwear had been pulled down. When defendant lay down on top of the child, th e mother pushed him off and told him to leave. Later, overcome with guilt, defenda nt swallowed numeroussleepingpills and stabbed himself in the chest. 3 We take judicial notice of this court’s unpublished opinions—People v. Tra n (Jan. 28, 2009, H031976) and People v. Tran (July 26, 2010, H034743)—in which we affirmed the previous commitment extension orders. (Deschene v. Pinole P oint Steel Co. 2 the last extension expired, the district attorney filed a petition to extend it again. On May 12, 2011, after a benchtrial, the court sustained the petition and extended defendant’s commitmentto June 19, 2013. Defendant appeals from the extension order. Weaffirm the order. Ill. THE JURY WAIVER AND EXTENSION TRIAL A. WAIVER Initially, the record on appeal did not reveal an advisementor express waiver. However,at the Attorney General’s request, we directed thetrial court to settle the record concerning an unreported,pretrial conference. (See Cal. Rules of Ct., rules 8.155 & 8.137.) The court filed a settled statement. It reads, in pertinentpart, “It was the custom and practice of [Honorable Gilbert T. Brown] to call the mental health calendar each Friday on the record. Priorto calling the calendar, all cases set were discussed in chambers. [{] .... On April 29, 2011, Respondent’scounsel, Thomas Sharkey, Deputy Public Defender, stated in chambers that Respondent wasnotwilling to submit to an extension of his commitment to the Department ofMental Health and wanted atrial. He also stated, that he, counsel, was requesting a court trial rather than a jury trial. The People were in agreementwith having a court trial. Trial was set for May 12, 2011....” B. THE EXTENSION TRIAL At the extensiontrial, Dr. Eric Khoury, M.D., defendant’s treating psychiatrist at Napa State Hospital (NSH),testified that defendant suffered from bipolar disorder, which has at times been severe and caused psychotic episodes. Dr. Khoury explained that the disorderis a chronic condition, and controlling the symptomsrequires the continued use of medication. Dr. Khoury said that although defendant was currently taking his (1999) 76 Cal.App.4th 33, 37, fn. 2, citing Evid.Code, § 452, subd. (d)(1); Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 930, fn. 1.) medication, he vascillated between doing so and t hinking he was cured. Hesaid that defendanthad not acknowledgedthat he would have to take medication for the rest of his life; rather, defendantsaid only that if medicatio n is prescribed, he would take it. This and defendant’s interest in being unconditionally re leased caused Dr. Khoury to be concernedthat defendant would stop taking medicat ion if he were not being closely supervised. Dr. Khoury opined that if defendant st opped, he would pose a dangerto himself and others due to his mental disorder. He f urther argued that defendant would be ready for conditional release on outpatient status wh en he understood that he was not “cured,” when he had developed the ability to recogni ze the signs of an onset of a manic episode, and when he understood that he had to take medication even whenhefelt better. Dr. Khoury noted that defendant currently was bein g evaluated for outpatient status and treatment, but that evaluation was not yet comple te. At this time, NSH wasnot recommendingoutpatient status, and Dr. Khoury ag reed that defendant was not ready for conditional release yet. Dr. Khoury opinedthat def endant’s preference for unconditional release was unrealistic. Defendant acknowledged that whenhe wasfirst com mitted, he was mentally ill and had hallucinations. However, he believed that he was now fine. Hesaid thatif released, he would take his medication for the res tof his life. He admitted, however, that in the past, when he hadfelt fine and the doctor had r efused to lowerthe dosageof his medication, he got angry and stopped taking it. IV. AN NGI COMMITMENT AND EXTENSION Under the statutory schemefor NGI commitmen ts, a defendant who has been committed to a state hospital after being found NGI maynot be kept in actual custody longer than the maximum state prison term to which heor she could have been sentenced for the underlying offense. (§ 1026.5, subd. (a)(1).) At the end of that period, the district attorney can seek a two-year extensionbyfiling mayp etition alleging that the defendant presents a substantial danger of physical harm to others because of his or her mental disease, defect, or disorder. (§ 1026.5, subds. (b)(1)-(2).) As noted, when the petition is filed, the court must advise the defendant ofthe rightto a jury trial and then conduct a jury trial unless both parties waive a jury. (§ 1026.5, subds. (b)(3) & (4).) V. THE PARTIES’ CONTENTIONS As noted, defendant contendsthat the court erred in failing to give the required jury advisement, accepting counsel’s jury waiver, and conducting a benchtrial without obtaining his own express personal waiver. The Attorney Generalargues that the failure to advise and failure to obtain a personal waiver were not errors because once counsel was appointed, he assumedresponsibility to advise defendant and enjoyed exclusive control over whether to have a benchorjury trial. Alternatively, the Attorney General argues that any alleged errors were harmless. VI. FAILURE TO ADVISE‘ Asnoted, subdivision (b)(3) provides,“Whenthepetition is filed, the court shall advise the person namedin thepetition ofthe right to be represented by an attorney and of the right to a jury trial.” Therecord reflects that the court did not directly advise defendantat the first hearing after the petition wasfiled; nor did the court do so at any time thereafter. This is understandable because whenthepetition wasfiled, defendant was in NSH; thereafter, defense counsel waived defendant’s presenceatall of the pretrial proceedings; the court did not order defendant’s appearance for the purpose of an advisement; and defendant did not appear until the day of the bench trial. However, as we shall explain, the court’s failure to advise does not compelreversal. Before any judgment can bereversed for error understate law,it must appear that the error complained of “has resulted in a miscarriage ofjustice.” (Cal. Const., art. VI, * Hereafter, all unspecified subdivision references are to section 1026.5. 5 § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This meanstha t reversalis justified “when the court, ‘after an examination ofthe entire cause, incl uding the evidence,’ is of the ‘opinion’ thatit is reasonably probable that a result more favorable to the appealing party would have been reachedin the absenceofthe error.” (Peo ple v. Watson (1956) 46 Cal.2d 818, 836.) | Clearly counsel knew that defendant had the right to a jury trial because he expressly waived it. Moreover, where, as here, counsel waives a defendant’s presenceat all pretrial hearings, effectively preventing a direct judicial advisement befo retrial, the court may reasonably expect counselto discuss all pertinent matters that will arise or that have arisen in pretrial hearings, including the rightto a jury trial and whether to have one. “Like all lawyers, the court-appointed attorneyis obligated to keep herclient fu lly informed about the proceedings at hand,to advise the clientofhis rights, and to vigorously advocate onhis behalf. [Citations.] The attorneymust also refra in from any act or representation that misleads the court. (Bus. & Prof.Code, § 6068, subd . (d); Rules Prof. Conduct, rule 5-200(B).)” Un re Conservatorship ofPerson ofJohn L. ( 2010) 48 Cal.4th 131, 151-152 (John L.), italics added.) Absent a showingto the contrar y, “[a] reviewing court will indulge in a presumption that counsel’s performancefell w ithin the wide range of professional competence and that counsel’s actions and inactio ns can be explained as a matter of soundtrial strategy.” (People v. Carter (2003) 30 Ca l.4th 1166, 1211; Conservatorship ofIvey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conserv atorship ofMary K. (1991) 234 Cal.App.3d 265, 272 (Mary K.) [where no evidenceto the contrary, court may presume counsel discussed jury waiver with client before waiving on client’s behalf].) Next, the record does not show that defendant was unaware of his right. On the contrary, it suggests otherwise. This was defendant’s fourth extension trial. I n the appeal from his second extension order, defendant claimed that he was deniedhis ri ght to a jury trial becausehe did not personally waive it. (People v. Tran, supra, H031976.) Moreover, he had ajury trial on his third extension. (People v. Tran, supra, H034743.) The record also does not show that defendant wantedajury trial on the instant petition or that he did not authorize or agree to counsel’s waiver or that he opposed or would have opposed counsel’s waiver. “As a generalrule, a stipulation ofthe attorney will be presumed to have been authorized bytheclient, as well in order to uphold the action of the court, as for the protection of the otherparty to the stipulation; but when the adverse party, as well as the court, is aware the attorneyis acting in direct opposition to his client’s instructions or wishes, the reason ofthe rule ceases, and the court ought not to act upon the stipulation, nor can the adverseparty claim the right to enforce a judgment rendered by reason thereof.” (Knowlton v. Mackenzie (1895) 110 Cal. 183, 188.) Here, despite claiming the denial of a jury trial in a previous appealand having a jury trial on a previous extensionpetition, defendant appeared in court and participated in the benchtrial without objection or complaint. Underthe circumstances, the record before us provides nobasis to infer that defendant was unawareofhis right to a jury trial or wanteda jury trial or that counsel overrode defendant’s wish for a jury trial. Any such inferences would be pure speculation on our part.° Last, we note that a single opinion by a psychiatric expert that the defendantis currently dangerous due to a mental disorder can constitute substantial evidence to > However,if, in fact, defendant was unawareofhis right to a jury trial and would have opposedor did oppose counsel’s waiver, but the evidence to establish these facts lay outside the record on appeal, defendant had an alternative a remedy. As a general rule, claims grounded in facts outside the record can be raised by habeaspetition. (See People v. Gray (2005) 37 Cal.4th 168, 211; In re Bower (1985) 38 Cal.3d 865, 872.) A person improperly committed mayresort to habeas corpusto challenge an involuntary civil commitment. (See Pen. Code, § 1473, subd.(a) [“Every person unlawfully imprisonedorrestrained ofhis liberty, under any pretense whatever, may prosecutea writ of habeas corpus, to inquire into the cause of such imprisonmentor restraint”); see also Jn re Michael E. (1975) 15 Cal.3d 183.) Weobservethat here defendanthas not sought habeasrelief. 7 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, 87 9.) Dr. Khoury’s testimony constituted strong evidence supporti ng the court’s order, and defendant presented no opposing expert testimony. Nordi d he impeach Dr. Khoury in any respect. Moreover, defendant does not now claim tha t Dr. Khoury’s opinion was speculative or that his testimony does not constitute substanti al evidence. Under the circumstances, we do notfind it reasonably probable d efendant would have obtained a more favorable result had the court ordered his presence at a pretrial hearing and directly advised him onthe recordofhis rightto a jury trial on the reco rd. (People v. Watson, supra, 46 Cal.2d at p. 836;cf. People v. McClellan (1993) 6 C al.4th 367, 377, 378 {failure to advise about sex registration requirement harmless].) ° VII. VALIDITY OF THE BENCH TRIAL As noted, defendant contends that the bench trial was invalid because the court erred in accepting counsel’s waiver. He argues that subdivisio n (b)(4) requires an NGI’s express, personal waiver. According to the Attorney Ge neral, however, the court properly accepted counsel’s waiver because he had exclusive control over whetherto have a benchorjury trial. A. PERSONAL WAIVER The federal and state Constitutions guarantee the rightto a jury trial in criminal cases, and that right can be waived only by the defendant persona lly. (U.S. Const., 6th § We do not intend to suggest that it was improperor inappropri ate for counselto waive defendant’s presence orthat the court had a duty to order d efendant’s presencein order to directly advise him. However,a direct advisementis no t the only way for the court to ensure that an NGIis made awareofthe rightto a jury trial. In our view, the practical difficulty in advising an NGI committed to a state hosp ital could easily be solved with an advisement and waiver form for the NGIread an d sign. (See Peoplev. Ramirez (1999) 71 Cal.App.4th 519, 521-522 [waiver form prop ersubstitute for judicial advisement].) Amend.; Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304-308; People v. Ernst (1994) 8 Cal.4th 441, 446.) However,the right and the personal-waiver tule do not directly apply in NGI proceedings because such they are fundamentallycivil, not criminal. (People v. Powell (2004) 114 Cal.App.4th 1153, 1157 (Powell); People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 485 (Williams); cf. People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell) [constitutional right not applicable in civil proceedings to commit defendant as an sexually violent predator (SVP)]; People v. Montoya (2001) 86 Cal.App.4th 825 829-830 (Montoya) [same re proceeding to commit mentally disordered offender (MDO)]; People v. Otis (1999) 70 Cal.App.4th 1174, 1176 (Otis) [same].) The federal Constitution also guarantees therightto a jury trial in civil cases, but that guarantee is not applicable to the states. (U.S. Const., 7th Amend. [right to a jury trial]; McDonald v. City ofChicago (2010)__ U.S. __, 130 S.Ct. 3020, 3034-303 5, fn. 13 [not applicableto states]; Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 827 [same]; Hung v. Wang (1992) 8 Cal.App.4th 908, 927 [same].) Likewise, the state Constitution guaranteesthe right to a jury trial in civil actions but onlyifthe right existed at common law in 1850, when the Constitution was first adopted. (Cal. Const., art. I, § 16; C & KEngineering Coniractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) Civil commitmenttrials, such as an NGItrial, are “initiaied bya petition independently of a pending action andare of a character unknown at common law.” (Rowell, supra, 133 Cal.App.4th at p. 451; In re Raner (1963) 59 Cal.2d 635, 639.) Moreover,they are neither actions at law nor suits in equity and are instead considered “special proceedings.” (Montoya, supra, 86 Cal.App.4th at p. 829; see Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 822; Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 678; 3 Witkin, Cal. Procedure (5th ed. 2 008) Actions, § 65, subd. 20, pp. 139-140; Code Civ. Proc., §§ 21-23.)’ In a “special proceeding,”the right to a jury trial is generally a matter of legislative grant, and not constitutional right. (Corder v. Cor der (2007) 41 Cal.4th 644, 656, fn. 7 [state constitutional right not applicable in special proceedings]; Cornette v. DepartmentofTransp. (2001) 26 Cal.4th 63, 76: Agricultura l LaborRelations Bad. V. Tex-Cal. Land Management, Inc. (1987) 43 Cal.3d 696, 707; R owell, supra, 133 Cal.App.4th at p. 452; People v. Wiliams (2003) 110 Cal.App.4t h 1577, 1590 [no | constitutional rightto trial in civil commitment proceedings]. )* Generally, in special proceedings, the statutory right to jur y trial may be waived by either a party or counsel unless otherwise provided by s tatute. (See John L., supra, 48 Cal.4th at p. 148.) Thus, we turn to the statutory language to see whetherit clearly limits waivers to NGIs or excludes waivers by counsel. Subdivisi on (b)(4) requires the court to conducta jury trial “unless waived by both the person and th e prosecuting attorney.” The ” Special proceedings include SVP commitmenttrials (Peopl e v. Yartz (2005) 37 Cal.4th 529, 535): competencetrials (People v. Masterson (19 94) 8 Cal.4th 965, 974 (Masterson)); trials «xtending a juvenile commitment(Jn re Gary W. (1971) 5 Cal.3d 296, 309); narcotics 2" <.ct commitmenttrials (In re De La O (1963) 59 Cal.2d 128, 150; mentally retarded commitmenttrials (Bagration v. Superior Court(2003) 110 Cal.Apn 4th 1677, 1685). 8 Evenif the state Constitution did guarantee the rig ht to a jury trial in an NGI commitment proceeding, defendant’s claim would fail be cause the constitutional right “may be waived by the consent of the parties express ed as prescribed, by statute,” and the generalrule is that where the constitutional right exis ts, it can be waived by either a party or the party’s attorney. (Cal. Const., art. I, § 16 [right to jury trial]; see Code of Civ. Proc, § 631 [prescribing types of waiver]; Zurich Gen eral Acc. & Liability Ins. Co. v. Kinsler (1938) 12 Cal.2d 98, 105 (Zurich), overruled on other grounds in Fracasse v. Brent (1972) 6 Cal.3d 784, 792; [waiver by party or c ounsel]; Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504 , 510; Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 148: see also Code Civ. Proc., § 283, subd.(1) [counsel has authority to bind client in any ofthe st eps of an action].) 10 question before us turns on the meaning ofthe term “the person.” Doesit refer literally and exclusively to “the person”; or does it more broadly include the person’s attorney? | That question is not new andhas arisen in a numberofcases under this and nearly identical commitmentstatutes. In every case, the court has adopted the broader view. In Otis, supra, 70 Cal.App.4th 1174, the court dealt with section 2966, subdivision (b), which requires a jury trial when a person challenges his or her MDO status unless the jury is “waived by both the person andthe district attorney.” There, counsel waived jury trial. The defendant objected and requested a jury trial, but at the time, he was delusional andsaid he was being sexually assaulted by invisible police. The court denied the request. (/d. at pp. 1175-1176.) In upholding counsel’s waiver, the court found that “nothing in the requirement that the waiver mustbe by ‘the person’ precludes the person’s attorney from acting on his behalf” and notedthat “[t]he Legislature did not say the waiver had to be made ‘personally.’ ” (Otis, supra, 70 Cal.App.4th at p. 1176.) The court opined thatif the Legislature had intendedto require a personal waiver, it would have madeits intent clear and unambiguous. (/bid.) The court further explainedthat“[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 intendedto leave the decision on whethertrial should be beforethe court or a jury in the hands of such a person.” (Otis, supra, 70 Cal.App.4th at p. 1177,italics added.) In Montoya, supra, 86 Cal.App.4th 825, the court reached the same conclusion concerning identical language in section 2972, subdivision (a), which requires a jury trial on an MDO commitmentextension unless waived “by the person andthe district attorney.” There too, counsel waived a jury. (/d. at pp. 828-829.) 1] The court concluded, as we have, that the constitutional waiver requirem ents in criminal cases were inapplicable because a commitmenttrialis fundame ntally a civil proceeding. (Montoya, supra, 86 Cal.App.4th at pp. 829-830.) The court further observed thatin civil actions, wherethere is a state constitutionalright to a jury trial, and in ancillary criminal proceedings, where the right to a jury trial is statuto ry, not constitutional, a jury trial can be waived by either the client or counsel. (/d. at pp. 829- 830.) Accordingly, the court looked to the waiver provisionto see if it pe rmitted or prohibited counsel to waive. (/d.at p. 830.) In upholding counsel’s waiver, the court followed Otis. It too noted tha t the statutory language did not expressly require a personal waiver orclearly preclude a waiver by counsel andagreed that the Legislature could not have intende d to require a personal waiverand thereby deny counselthe authority to act on behalf o f an incompetent MDOsuchas the MDOin Otis. (Montoya, supra, 86 Cal. App.4th at pp. 830-831.) The court acknowledgedthat“a person could be mentally disordered for som e purposesandnotfor others.” (Montoya, supra, 86 Cal.App.4th at p. 831.) However,it noted that the defendant’s mind was not functioning normally, and he ha d repeatedly and recently demonstrated poor judgmentandaberrant behavior. In upholding counsel’s waiver, the court found “no reason to believe that defendant was capable of m aking a reasoned decision aboutthe relative benefits ofa civil jury trial comparedto a civil bench trial.” (Ibid.) This brings us to Powell, supra, 114 Cal.App.4th 1153, whichis directly on p oint. There, the NGI objected to counsel’s waiver and requested a jury. Whent he court denied the request, the defendant became so argumentative, belligerent, and disrup tive that he had to be removed from the courtroom. On appeal, the defendant claimed that coun sel’s 12 waiver wasineffective because section 1026.5, subdivision (b)(4) required his personal waiver. (/d. at pp. 1157-1158.) In rejecting this claim, the court cited Otis and noted that “[t]he Legislature,in enacting section 1026.5, did not say that the jury waiver must be ‘personally’ made by the NGI committee.” (Powell, supra, 114 Cal.App.4th at p. 1159.) Moreover, mirroring the Oris court’s view concerning incompetentpersons, the court opined generally that “[a]n insane person whois ‘a substantial danger of physical harm to others’ [citation] should not beable to veto the informed tactical decision of counsel.” (Jd. at p. 1158.) The court pointed out that the defendant had been found insane twice, medical staff had diagnosed him with paranoid schizophrenia, and there was no evidence he had regained his sanity. The court further noted that the defendanthada history of violence, believed certain people should bekilled, and sought release to do so. (/d. at p. 1158.) The court asked, “Can such personintelligently invoke or waive the rightto a jury trial? Is such a person competent to meaningfully understand who should make the determination of whether his commitment should be extended?” (/bid.) The court answered, “Common sense dictates that appellant should not be ableto 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 of its analysis, the Powell court cited People v. Angeletakis (1992) 5 Cal.App.4th 963 (Angeletakis). There, the defendant faced trial to extend his NGI commitment and soughta preliminary determination of his competence, (See § 1368.) The court notedthat section 1368 did not applyin civil proceedings and opined that an NGIdid not have to be competentata trial to extend his or her commitment. (dd.at pp. 967-968; Juarez v. Superior Court (1987) 196 Cal.App.3d 828, 931-932 [same]; cf. 13 People v. Moore (2010) 50 Cal.4th 802, 829 [samere trial on SVP c ommitment].) As the court explained, “Angeletakis will be confined and receive tr eatment for his mental condition whether his commitment is extended undersection 1026.5 or such proceedings are suspended undersection 1368. While we appreciate the distinct ion between mental competenceto standtrial and dangerousnessto others due to a mental disease, defect, or disorder, we think the interests of a person facing a commitment exten sion are adequately protected by competent counsel and the other procedural safeguards afforded him. Requiring the court to suspend proceedingsuntil the committee is a ble to understand the nature of the proceedingsand assist in the conduct of his ‘defense’ ad ds minimal protection in this context, especially when balanced against the admi nistrative burdens involved.” (Angeletakis, supra, 5 Cal.App.4th atpp. 970-971, fn. o mitted.) The Powell court read Angeletakis “for the principle that an NGI co mmittee who is not mentally competent must act through counsel. If the person is not competent to waive jury at the extensiontrial, his or her attorney may waive jury o n his or her behalf. Thatis the case here.” (Powell, supra, 114 Cal.App.4th at p. 1158, italics added.) Sections 1026.5, 2966, and 2972 use the same language to add ress the same subject. The unanimity ofinterpretation in Otis, Montoya, and Powell reflects the established rule that ordinarily “[wJords or phrases commonto twos tatutes dealing with the same subject matter must be construedinpari materia to have t he same meaning.” (Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 11 6; People v. Lamas (2007) 42 Cal.4th 516, 525.) Weagree with those courts’ view ofthe statutory language. It does no t expressly require a “personal” waiver by the NGI. The term “the person”in the phrase “unless waived by both the person and the prosecuting attorney” (§ 1026.5, subd. (b)(4)) does not automatically or necessarily convey the notion that the only valid waiver is one “personally” made by the NGI. Nor does the waiver provision clearly re flect a legislative 14 intent to impose such limitation or preclude waivers by counsel on behalf of an NGI. Finally, we too observe that the Legislature knows howto require a personal waiver, and in doingso,it has used clear and unambiguous language. (E.g., § 861, subd. (a)(1) [requiring personal waiverofstatutory right to continuouspreliminary examination]; § 997, subd. (b)(1) [same re waiver ofpresence at arraignment]; Welf. & Inst. Code, § 1801.5 [samere right to a jury in trial to extend juvenile detention].) Furthermore, interpreting the language to exclude waivers by counselresults in consequencesthat, in our view,are illogical and anomalous andtherefore, to be avoided. (People v. Martinez (1995) 11 Cal.4th 434.) First, we note that for a variety of reasons, NGIs being treated for mentalillness in state hospitals often choose not to appear until the day oftrial, courts do not automatically order them transported to court for every pretrial hearing, and counsel routinely waive the NGIs’presence at those hearings which often involve technical, procedural, and scheduling matters. Such was the case here. Given thesepractical and logistical issues, counsel must be able to act on the NGI’s behalf in his or her absence. We cannotconceive ofa logical reason to prohibit counsel from waiving statutory right to a jury trial at the NGI’s direction or with the NGI’s express authorization butin his or her absence. Doing so would compelthe court to order the NGI’s transportation and presence solely to secure a personal waiver. This is absurd, because, as noted, with a client’s authorization, counsel can waive the more fundamentalstate constitutionalright to a jury trial in civil actions. Wefurther note that competency to standtrial is not a prerequisite in a civil proceeding to commit a person whois dangerous dueto mentalillness. (E.g., Peoplev. Angeletakis, supra, 5 Cal.App.4th at pp. 967-968 [NGI commitment]; People v. Moore, supra, 50 Cal.4th at p. 829 [SVP commitment].) However, a waiver“is the ‘intentional relinquishment or abandonment of a knownright.’ [Citations.]” (United States v. Olano 15 (1993) 507 U.S. 725, 733; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 521 .) To be valid, the waiverofa statutory right must be knowing,intelligent, and volu ntary. (Jn re Hannie (1970) 3 Cal.3d.520, 526-527; People v. Charles (1985) 171 Cal.App.3d 5 52, 559.) As Otis, Montoya, and Powell observe, some defendants,like the d efendants in those cases, may be sodelusional or otherwise affected by their mental disorders that they lack the capacity to know whatis in their own best interests and makeration al decisions. Under such circumstances, an NGI maynotbe able to knowingly and intel ligently waive the right to a jury trial. If an NGI is incompetent andin a particular cas e counsel believes that a jury waiveris in the NGI’s bestinterests, requiring that defenda nt’s personal waiver would prevent a waiver by counsel and thereby undermine cou nsel’s ability to protect the NGI’s interests. Rather, it would mechanically require t he court to conduct a jury trial or give the incompetent NGIveto powerover counsel’s in formed determination.” In our view, preventing counsel from waiving a jury at an NGI’s di rection or with an NGI’s consent and preventing counsel from doing so on behalf of an incompetent NGI are anomalous consequences that would flow from interpreting the w aiver provision literally to require a personal waiver. For that reason, we considerit unreasonableto infer such a restrictive legislative intent from the statutory language. (Cf. Mary K., supra, 234 Cal.App.3d at p. 271 [rejecting claim that counsel’s waive rat conservatee’s direction was ineffective because personal waiver was required].) Defendant suggests that subdivision (b)(7) implicitly incorporates t he constitutional personal waiver requirement in criminal cases. We di sagree. * The anomaly of forcing an incompetent person face a jury trial even when counsel concludes that it would be against the person’s bestinterest s would notarise from the personal waiver requirementin criminal cases because a n incompetent defendantcannotbetried atall. (§ 1368; see also Drope v. Missour i (1975) 420 U.S. 162, 172.) 16 That subdivision provides, in relevant part, that the defendant“shall be entitled to the rights guaranteed under the federal and state Constitutions for criminal proceedings.” (§ 1026.5, subd. (b)(7).) Every court that has analyzed the scopeofthis provision has concludedthat it does not incorporate all federal and state constitutional procedural rights. (Williams, supra, 233 Cal.App.3d at pp. 485-488; Powell, supra, 114 Cal.App.4th at pp. 1157-1158; People v. Haynie (2004) 116 Cal.App.4th 1224, 1229-1230 (Haynie); People v. Lopez (2006) 137 Cal.App.4th 1099, 1008-1116 (Lopez); see People v. Henderson (1981) 117 Cal.App.3d 740, 746-748 (Henderson) [same conclusion re identical language in former Welf. & Inst. Code, § 6316.2, subd. (e)]; of. with Joshua D. v. Superior Court (2007) 157 Cal.App.4th 549, 550-561 [distinguishing § 1026.5, subd. (b)(7) from Welf. & Inst. Code, § 1801.5, which grants juveniles “all the rights guaranteed underthe federal and State Constitutions for criminal proceedings”in commitment extensiontrials (italics added)].) In Williams, supra, 233 Cal.App.3d 477, the court opined that the subdivision simply “codifies the application of constitutional protectionsto extension hearings mandated byjudicial decision. It does not extend the protection of constitutional provisions whichbear no relevant relationship to the proceedings. [Citation.] Thus, for example, ex post facto principles are not applicable to extension proceedings. [Citation.] Neitheris the privilege against self-incrimination applicable to court-ordered psychiatric examinations. [Citations.].” (/d. at p. 488; accord, Lopez, supra, 137 Cal.App.4th atpp. 1111-1115; cf. Henderson, supra, 117 Cal.App.3d at pp. 746-748.) The court held that the provision also did not incorporate constitutional protection against double jeopardy. The court reasoned that double jeopardy prohibitions were inapplicable because they are designed to protect a person from being criminally prosecuted more than oncefor the same offense. “Recommitment proceedings do not adjudicate an offense, thus the bar of 17 double jeopardy has no meaningful application to extension proceedings .” (Williams, supra, 233 Cal.App.3d at pp. 485-486, 488.)"" In Powell, supra, 114 Cal.App.4th 1153, the court agreed with Williams th at subdivision (b)(7) does not incorporateall constitutional procedural safe guards and held that the subdivision did not incorporate the constitutional personal waive r requirementin criminal cases. As discussed above, the court opined that an incompetent NGI must act through counsel, who may then waive a jury on his or her behalf. (Powell, supra, 114 Cal.App.4th at pp. 1158-1159.) Weagree with Powell. The absurd and anomalous consequences that would result from interpreting subdivision (b)(4) to require a personal waiver and exc lude waivers by counsel would likewise result from interpreting subdivision (b)(7) to do so. Indeed, subdivision (b)(3) providesthe right to counsel, a jury trial, and criminal di scovery. Subdivision (b)(7) reflects an intent to protect a defendant’s interests by pr oviding additional procedural safeguards relevantto the proceedings. Simply put , it makes no 10 In Williams, the court explained that “Penal Code section 1026. 5 was enacted in 1979, as emergencylegislation in responseto the California Supreme Co urts decision of In re Moye [(1978) 22 Cal.3d 457]. Prior to In re Moye, individuals co mmitted to state hospitals after having been acquitted by reason of insanity were commit ted for an indefinite period of time. In re Moye concluded that equal protection pr inciples mandated that such individuals be released after they had been committe d for a period of time equal to the maximumstate prison sentence which they could have received for the underlying offense. Faced with the imminent release of many potential ly dangerous individuals, the legislature adopted Penal Code section 1026.5 to provide for a maximum term of commitment, together with the possibility of successive two-year recommitments for dangerous individuals. At the same time, the statutes relating to mental ly disordered sex offenders (‘MDSO’) were amendedto provide for virtually identical procedures.” (Williams, supra, 233 Cal.App.3d at p. 487-488,fn. omitted.) Wehave taken judicial notice ofthe legislative history of section 1026.5 , which confirms Williams’ summary. (See Evid. Code, § 452, subd. (c).) Wefurther note that in Lopez, supra, 137 Cal.App.3d 1099, the court ex panded on the legislative history of section 1026.5 as well as Williams’ view that it merely codified judicial decisions. 18 senseto interpret a provision designedto provide additional protection in a waythat reduces counsel’s ability to protect the interests of an incompetent NGI when,in counsel’s view, waiving a jury trial would do so. With this in mind, we donotfind that subdivision (b)(7) clearly reflects a legislative intent to incorporate the personal waiver requirement applicable in criminal cases. We agree with Powell for two other reasons. Even in a criminal prosecution, where a defendant must personally waive the state and federal constitutional rights to a jury trial, there is no requirementthat a statutory right to a jury determinationof certain issues be personally waived. (People v. French (2008) 43 Cal.4th 36, 46-47; see Montoya, supra, 86 Cal.App.4th at p. 829.) Thus, for example, a defendant need not personally waive the statutory right to a jury on prior prison term allegations (People v. Vera (1997) 15 Cal.4th 269, 278, abrogated on another point in Apprendi v. New Jersey (2000) 15 Cal.4th 269, 278); the statutory right to have jury determine sentence enhancementallegations (People v. Wims (1995) 10 Cal.4th 293, 309, overruled on anotherpoint in People v. Sengpadychith (2001) 26 Cal.4th 316, 326); the statutory right to have jury determine competence to standtrial on criminal charges (Masterson, supra, 8 Cal.4th at p. 972); or the statutory right to have same jury determine current charges andprior allegations (People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5). (See also People v. Hinton (2006) 37 Cal.4th at 839, 874-875 [statutory right to a separate proceeding on the prior-murder-conviction special-circumstanceallegation].) | Second, subdivision (b)(4) specifically deals with the waiverof a jury trial andit does not expressly require a personal waiver or prohibit waiver through counsel. Subdivision (b)(7), on the other hand,is a general statute and does not specifically refer to any particular rights or the waiverofrights. It is a settled rule that “[a] specific provision relating to a particular subjectwill govern a generalprovision, even though the generalprovision standing alone would be 19 broad enough to include the subject to which the specific provision r elates. [Citation.]” (People v. Tanner (1979) 24 Cal.3d 514, 521.) Under the circumsta nces, we doubt the Legislature intended the general subdivision (b)(7) to add by implicat ion a personal waiver requirementthat it did not expressly include in the specific s ubdivision dealing with the waiver of a jury trial.” In sum, when construing statutes, “we may not under the guise of cons truction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.” (California Fed. Savings & Loan Assn.v. City ofLos Angeles (1995)11 Cal.4th 342, 349, quoting Manufacturers Life Ins. Companyv. Superi or Court (1995) 10 Cal.4th 257, 274; accord Estate ofGriswold (2001) 25 Cal.4th 904, 917.) Nor may we insert requirementsor limitations that would cause the statute to conf orm to a presumed intent that is not otherwise manifestin the existing statutory langua ge. (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.Ap p.4th 609, 617.) Given our analysis of the statutory language, policy considerations, an d potential consequences, we mustdeclineto insert a personal waiver requiremen t into section 1026.5 Rather, we concludethat undersubdivision (b)(4), counsel m ay waive a jury at an NGI’s direction, with an NGI’s knowledge and consent, or, a s in Powell, on behalf of an incompetent NGI.” 11 Even if subdivision (b)(7) incorporated the personal waiver requi rement applicable in criminal cases, the requirement, it would still represent only a statutory requirement, not a constitutionally compelled requirement, and theref ore, any statutory violation would be subject to review under the Watson test for harmle sserror. 12 Ih the latter situation, we believe that counsel may do so even ove r the objection of an incompetent defendant. (E.g., Powell, supra, 114 Ca l.App.4th at pp. 1156, 1158-1159; cf. Otis, supra, 70 Cal.App.4th at pp. 1176-1177 [waiver over objection of incompetent MDO}; Masterson, supra, 8 Cal.4th 965, 972 [waiver over objection of defendant whose competence has been called into questi on].) 20 Although we conclude that the waiverprovision is broad enough to permit waivers by counsel, it does not necessarily follow, as the Attorney General claims, that the waiver provision gives counsel exclusive control over whether to have a bench or jury trial.’? To determine it does, we return to subdivision (b)(4). B. SCOPE OF COUNSEL’S CONTROL The statutory language “unless waived by both the person and the prosecuting attorney” doesnot expressly confer exclusive control; nor does it expressly or implicitly bar NGI’s from controlling the decision. Moreover, the waiver provision must be read together with the advisement provision (see Los Angeles County Metropolitan Tiransp. Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106-1107), and together, they do not reasonably suggest a legislative intent to confer exclusive control or bar NGIs from makingthe decision. On thecontrary, the two provisions contemplate that NGIs can makethe decision and expressly provides for them to do so. Specifically, subdivision (b)(3) requires the court to advise “the person named in the petition . . . 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 hastheright to a jury trial. > The court’s custom and practice of obtaining waivers from counsel in chambers off the record may well be based on the view that in every commitmentproceeding, counsel has such exclusivecontrol. Indeed, if that were the case, then the court’s practice representspractical, efficient, and convenient wayto resolve the jury issue. However, as weshall explain,that is not the case. 4 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].) 21 We must presumethat the Legislature intended the advisement to perform a meaningful anduseful function. (See Clements v. T.R. Bechtel Co. (1 954) 43 Cal.2d 227, 233.) The purpose and function appear in the waiverprovision, which requires jury trial unless waived by “the person.” Although, subdivision (b)(4) must be co nstrued to permit a waiver by “the person's” attorney, the phrase unambiguously refers to a waiver by the NGI. Thus,the purpose and function of the required advisementare s elf-evident: to inform the NGIofthe right to a jury trial so that he or she can decide wh ether to waiveit. (See People v. Barrett (2012) 54 Cal.4th 1081, 1109 (Barrett) [a jury ad visementenables person to comprehendandcontrol decision to “request a jury trial”); People v. Koontz (2002) 27 Cal.4th 1041, 1071 [purpose of standardized Faretta adviseme ntsis “to ensure a clear record of a knowing and voluntary waiverof counsel”); § 1016. 5, subd. (d) [required advisementofpotential immigration consequences intendedto inform decision of whether to waive rights and enterplea].) Weobservethat if the Legislature had intended to give counsel exclusiv e control, it could have doneso easily andclearly by requiring a jury trial unless waived by “the person’s attorney”just asit specified a waiver by the “district attorney. ” (Cf. § 2966, subd. (b) [requiring hearing within specified time unless waived by “p etitioner or his or her counsel”].) Conversely, we doubt the Legislature would have cloude d such an intent by requiring the court to advise “the person”andfurther requiring a j ury trial unless waivedby “‘the person.” Moreover,if that had been the Legislature’s intent, an advisement would serve no practical or meaningful function, and there w ould have been no need to make the advisement mandatory. Forthis reason,it is not r easonable to interpret the provision to confer exclusive control because it would effe ctively render the advisement provision meaningless, statutory surplusage. (See McCart herv. Pacific Telesis Group (2010) 48 Cal.4th 104, 110 [courts should avoid interpr etation rendering part of the instrument surplusage].) 22 In short, just as we decline to limit the phrase “unless waived by the person” by inferring that only an NGIcan waivea jury trial, so too we decline to limit the phrase by inferring that counsel has exclusive control overthe decision. We acknowledgethe nonstatutory, judicially recognized rule that “in both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects ofthe litigation and, indeed, to bind the client in these matters”; in other words, “counsel is captain of the ship.” (Jn re Horton (1991) 54 Cal.3d 82, 94, 95; Blantonv. Womancare, Inc. (1985) 38 Cal.3d 396, 403-404.) Wefurther note that in upholding counsel’s waiver in Otis, the court cited Zurich, supra, 12 Cal.2d 98 for the general proposition that“in civil cases, an attorney has ‘complete charge and supervision’ to waive a jury.” (Otis, supra, 70 Cal.App.4th at p. 1176.) However, we concludethat the “captain of the ship”rulein civil litigation does not govern whether counsel has exclusive authority to waive a jury in NGI proceedings. In Zurich, supra, 12 Cal.2d 98, the court held that counsel’s insistence on a jury trial did not constitute good cause for firing him and thus bar him from later seeking a share of her judgment. Citing the generalrule, the court concludedthat the attorney had the right and authority to insist on a jury trial. (/d. at pp. 105-106.) Although Zurichdid not involve a jury waiver, the court cited a numberofcases and authorities, including Shores Co. v. lowa Chemical Co. (1936) 222 Iowa 347 [268 N.W. 581] Wowa). There, the defendant claimedthat counsel lacked the authority to waivea 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 tosetit 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.) 23 Although Zurich and the Jowa case recognized counsel’s authority to request or waive a jury in typical civil litigation, neither case involve d a “special proceeding”in whichthe state seeks to involuntarily commit a person to a mental hospital for treatment. Moreover, neither case addressed whether counsel had suc h authority in a “special proceeding”; and neither case involveda statute that express ly required a jury advisement and jury trial unless waived by the person. “ It is axiomatic,’ of course, ‘that cases are not authority fo r propositions not considered.’ (People v. Jones (1995) 11 Cal.4th 118, 123, f n. 2, quoting People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7.) Thus, these cases do not support a conclusion that in NGI proceedings, the “captain of the ship” rule give s counsel exclusive control over whether to waive a jury trial. | Masterson, supra, 8 Cal.4th 965 is a pertinent case on the i ssue becauseit involved a special proceeding to determine whether the defe ndant was competent to stand trial on criminal charges. (§§ 1368-1370.) There, counselst ipulated to an | 1-personjury over the defendant’s objection. In upholding counsel’s autho rity to do so, the court more broadly concluded that in competency trials, counsel has e xclusive control over the jury issue. The court noted the “captain of the ship” rule but did not base its conclusion onit. (Masterson, supra, 8 Cal.4th at pp. 969-970.) Rather, the co urt expressly basedits conclusion on “an examinationofthe nature of competency p roceedings as well as the jury trial right at issue.” (Jd.at p. 971.) The court explained, “The sole purpose of a competency pro ceedingis to determinethe defendant’s present mental competence,i.e., whether the defendantis able to understand the nature ofthe criminal proceedings andto a ssist counsel in a rational manner. [Citations.] Becauseofthis, the defendant necessar ily plays a lesser personal role in the proceeding than in a trial of guilt. How can a person whose competence is in 24 doubt make basic decisions regarding the conductofa 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 unableto act in his or her ownbestinterests. For that reason, the defendant must act through counsel, and counsel has exclusive control over the conduct of the proceedings, including whether to requesta jury trial. (Masterson, supra, 8 Cal.4th at pp. 971, 973; see People v. Hill (1967) 67 Cal.2d 105, 114,fn. 4 [no error in failing to advise defendant ofright to jury in competencetrial because counsel decides whetherto have a jury trial].) Under Masterson, therefore, if counsel has exclusive control, counsel derives it not so much from the “captain of the ship”rule but from the nature ofNGI proceedings and the jury right at issue. Morerecently, in Barrett, supra, 54 Cal.4th 1081, the Supreme Court provided further guidance when it decided whether counsel had exclusive control in a proceeding to commit a mentally retarded person whois dangerous. (Welf. & Inst. Code, § 6500.)'* 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 Constitution provided the rightto a jury trial and required a jury advisementand personal waiver. (/d. at p. 1093.) Although the statute did not providethe rightto a jury trial, the 'S The Barrett court noted thatatall 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 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 outmodedterminology. At our request, the parties briefed the impact of Barrett, if any, on the issues raised in this case. 25 Supreme Court agreed that constitutional considerations warranted r ecognizing an implied statutory right to a jury trial. (Id. at pp. 1097, 1100.) Howev er,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 cour t relied primarily on Masterson. The court explained that mental retardationis a developmentaldisa bility that originates when an individualis a minor and continues, or can be expe cted to continue, indefinitely, and constitutes a “ ‘substantial disability for that individ ual.’ ” (Barrett, supra, 54 Cal.4th at p. 1103.) Moreover, for purposes of a commitme nt under section 6500, mental retardation involves “ ‘ “ ‘significantly subaver age general intellectualfunctioning existing concurrently with deficits in adaptive behavior,’ and appearing in the ‘developmentalperiod.’ ”’ [Citations.]” (Jbid., ita lics in Barrett) The court opined that “the significant cognitive and intellectual deficits t hat the condition entails, which appear early in life and neverrecede, affect the ability to ‘make basic decisions’ regarding the conduct ofthe section 6500 proceeding. [Cita tion.] Such an individualthusplays a limited ‘personalrole’ in the case, and must rel y on counselto decideall tactical and procedural matters, such as whether to exercise the jury trial right.” (Id. at pp. 1103-1104.) The court rejected a claim that this approach “improperly ‘presumes’ t hat a person is mentally retarded before the fact finder has decided the issue.” (B arrett, supra, 54 Cal.4th at p. 1104.) The court notedthat a commitmentpetitionis fi led at the request of “a responsible andinterested party (e.g., parent, conservator, correcti onal or probation official, or regional center director), whopresents specific infor mation (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 underscoredby t he verification 26 requirement. (§ 6502.) ... [§] Second, where a section 6500 petition is filed, the trial court is entitled to a written report prepared by, orat the behestof, 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 pendingthe hearing... . [{] In light of these principles and authorities, we conclude that someonelike Barrett, whois alleged to be mentally retarded and dangerous undersection 6500, is not in a position to personally assert or waive the right to jury trial, to sufficiently comprehend the jury trial advisement, or to override the views of counsel on the subject. Sole control over such tactical and procedural decisions rests with counsel, whether or not the client has been consulted or objects.” (Barrett, supra, 54 Cal.4th at pp. 1104-1105.) Masterson and Barrett establish that in certain types of commitment proceedings, the defendant’s alleged mental state—e.g., incompetency and mental retardation— disables him or her from making reasoned decisions about whatis in his or her best interests, including whether to request or waiveajury trial. In other words,it is reasonable to categorically assume that such defendants lack the capacity to make a rational decision abouta jury trial. For that reason, they must act through counsel, and counsel has exclusive control over the jury issue. The Attorney General cites Masterson to support the claim that counsel has exclusive control in NGI proceedings. Presumably, the argumentis that, like defendants whose competence has been questioned or persons diagnosed with mental retardation, NGIs are categorically unable to make reasoned decisions, and therefore counsel must be 27 able to decide the jury issue. Wereject this argument and fi nd the Attorney General’s reliance on Masterson to be misplaced. First, there are significant differences between an NGIextens iontrial and the proceedings in Masterson and Barrett. The purpose of a co mpetencytrial is to resolve actual doubt concerning the defendant’s mental capacity to understand the proceedings and cooperate with andassist counsel. (People v. Lewis (200 8) 43 Cal.4th 415, 524.) Thus, as Masterson holds, once a defendant’s competen cy is doubted, counsel has control over whether to request a jury for the competency trial. The proceeding in Barrett did not involve a determination o f competency but whether a mentally retarded person is dangerous. However,a s Barrett explains, mental retardation in this context represents a permanent developme ntal disability involving significant cognitive and intellectual deficits. For this reason , the court treated the allegations and supporting documentation that person is me ntally retarded like doubt concerning a defendant’s competency to standtrial. In oth er words, the mentality of persons in both contextsis comparable, both may be assume dto be incapable of determining their own best interests, and therefore the scope of counsel’s authority should be the same. Unlike a competencytrial, an NGI extension trial does not involve a determination of competency. Its purposeis to determine whether an NGIi s currently dangerous due to a severe mental disorderthat is not in remission. (§ 297 0.) To be sure, that is the same purposeofa trial to commit a dangerous mentally retarded person. However, the similarity of purpose does not meanthat the scope of counse l’s authority should be the same because the mental capacity of the persons in each co ntext is different. More specifically, although it may bereasonable to categorically a ssume that mentally retarded personslack the capacity to determinetheir ownbestinterest s, it is not reasonable to makethat categorical assumption about NGIs. Barrett mak esthis precise point. 28 Concerning the capacity to function in a competent manner, and specifically to comprehendajury advisementandrationally control the jury decision, the Barrett court distinguished those diagnosed with a mental disease, defect, or disorder from those diagnosed with mental retardation. In Barrett, the defendant claimed that the Constitution required a jury advisement and personal waiver under principles of equal protection. She noted that patients facing an extended commitment under the Lanterman-Petris-Short (LPS) Act (Welf. & Inst. Code, § 5000 et seq.) because they posed a danger dueto their mental disease, defect, or disorder rendered werestatutorily entitledto such procedural safeguards. (Barrett, supra, 54 Cal.4th at p. 1106; see Welf. & Inst. Code, § 5302.) Because she and LPSpatients 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 waive a jury trial. (Barrett, supra, 54 Cal.4th at p. 1108.) What distinguished persons under the two schemeswastheir “distinct ‘mentality’ ”’—1.e., mental retardation versus mental illness. (Ibid.) The court explained that “[m]Jental illness and related disorders are said to be conditions that may arise suddenly and,for the first time, in adulthood. [Citation.] The LPS Act processitself assumes that the need for treatment may be temporary, andthat 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 bedifficult to diagnose. [Citations.] Wherepresent, 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 29 suggest that the mental conditions that create eligibility for an extended 180-day LPS Act commitment, though they include imminent dangerousn ess, do not necessarily imply incompetence or a reduced ability to understand, and ma ke decisions about, the conduct ofthe proceedings. Hence, nothing compels the conclus ion that such LPS Actpatients will not benefit by the statutory right to a jury trial advi sement set forth in section 5302. By contrast, in the case of persons alleged to be mental ly retarded and dangerous under section 6500, the commitment process itself raises s ubstantial doubts abouttheir cognitive andintellectual functioning sufficient to limit the personal and proceduralrole they play. It follows that the two groups are not similar ly situated as to the function that Barrett implies an advisementlike section 5302 serves —comprehending and controlling the decision whetherto request ajury trial. Thus, any d isparate statutory treatment with respectto jury trial advisements does not deprive person s like Barrett of equal protection of the law.” (Barrett, supra, 54 Cal.4th at pp. 1108-1109 ,first italics in Barrett, second italics added.)'® The court’s discussion recognizes that unlike defendant s whose competenceis questioned or persons diagnosed with mental retardatio n, those suffering from a mental illness can comprehend andcontrol the decision to waiv eajury trial. In this regard, Barrett’s view mirrors the implicit legislative findings u nderlying the statutory requirements of an advisement and jury trial unless waiv ed that an NGI can decide whether to waive a jury trial. Moreover, these requireme nts further distinguish Masterson and Barrett becausethe statutes in those case s do not mandate an advisement or jury trial unless waived; rather, a jury trial must be d emanded. (Barrett, supra, 54 16 tn 1981, the court in Cramerv. Gillermina R. (1981) 125 Cal.App. 3d 380 similarly held that because mentalillness and mentalret ardation are separate and distinct conditions which require different treatment and/or habi litation,” their differing statutory _ schemesdid notviolate the guarantee of equalprotecti on. (Id. at pp. 387-3 88; accord, People v. Quinn (2001) 86 Cal.App.4th 1290, 1294-1295.) 30 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 ownbestinterests is not particularly unique or unprecedented. In John L., supra, 48 Cal.4th 131, the court observedthat despite having mental disorders, conservatees are not, by reason of their conservatorship, automatically considered incompetentto waive their rights. (/d. at p. 153.) In In re Qawi (2004) 32 Cal.4th 1, the court opinedthat “[a]lthough an MDO must be determined to have a ‘severe mental disorder,’ commitment for a mental disorder does notby itself meanthat individuals are incompetent to participate in their own medical decisions. [Citations.]” (/d. 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 defendanthad the right to waive counsel and represent himself. (id. at pp. 460-461.) Similarly, in People v. Williams, supra, 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 MDO commitment. (/d. at pp. 1587-1592.) In addition to Masterson, the Attorney Generalrelies on Otis, Montoya, and Powell as well as People v. Givan (2007) 156 Cal.App.4th 405 (Givan) to support her claim that counsel has exclusive control. Otis, Montoya, and Powell must be viewedin light of their particular facts and the issues raised in them. (See Ginns v. Savage (1964) 61 Cal.2d 520, 524,fn. 2 [‘{Ianguage used in any opinion is of course to be understoodin the light of the facts and the issue then before the court”].) As noted, in Otis, the defendant was delusional, and the court upheld counsel’s jury waiver over the defendant’s objection, opining that the defendant was not capable of making a reasoned decision. (Otis, supra, 70 Cal.App.4th at 31 pp. 1175-1176.) In Montoya, the court also upheld counsel’s waiver, noting that the defendant’s mind was not functioning normally, andhe, lik e the defendant in Otis, was not capable of making a reasoned decision. (Montoya, supra , 86 Cal.App.4th at p. 831.) Likewise, the court in Powell upheld counsel’s waiver ov er the defendant’s objection because the defendant was medicated andhis disruptive cond uct demonstrated his incompetence. (Powell, supra, 114 Cal.App.4th at p. 1158.) Giventhe particular facts concerning the mentalstate of the se defendants, we read these cases for the proposition that whenit reasonably appears that an MDO or NGI reasonably is incapable of determining whether a bench orjur y trial is in his or her best interests, he or she must act through counsel, and counse l has exclusive authority to decide even over an objection. In this regard, the cases refle ct the Masterson-Barrett rationale for recognizing counsel’s exclusive authority in pr oceedings to determine competency and the dangerousness of a mentally retarded per son. In our view, these cases should not be read morebroadly to hold that counsel con trols the jury issue regardless of whether the MDOor NGIis competent. This is e specially so because none ofthese cases discussed the purpose and functionofthe mand atory jury advisement. The Attorney General’s reliance on Givan,supra, 156 Cal.App .4th 405is also misplaced. There, the NGI instructed his attorney to makesure he did not haveto attend the extension proceedings, andto this end, the NGIsigned a declaration stating that he had discussedhis rights and had agreed to an extension of his commitment. He also requested that his attorney be permitted to appear and present this waiver. Counseldid so, and the court accepted it. On appeal, the defendant claime d he was denied a jury trial because the statute required his express, personal waiver. Th e court held that a personal waiver was not required and that the defendant’s express inst ructions to his attorney implicitly incorporated a jury waiver. (Givan, supra, 156 Cal .App.4th at pp. 409-411.) 32 Givan does not suggestthat counsel exclusively controls the jury decision in every case; nor doesit undermineourstatutory analysis or reading ofPowell.!” " The Attorney Generalalso cites People v. Fisher (2006) 136 Cal.App.4th 76. In Fisher, the MDO’s counsel waived a jury trial, but the MDO objected and then movedto discharge counselandrepresent himself. The court granted the request. After a jury trial, the MDO’s commitment was extended. On appeal, he claimed that in honoring counsel’s jury waiver, the court forced him to waivehis right to have counsel represent him at a jury trial. In rejecting this claim, the court first asserted that in Oris, supra, 70 Cal.App.4th 1174,“we held that counsel for a person challenging an MDOcertification may waivejury trial without the consentofhis client.” (Fisher, supra, 136 Cal.App.4th at p. 81.) The court then opined that the MDO “wasnot‘forced’ to do anything and the trial court wentto great lengths to be fair to him. First, it was not required to allow appellant to represent himself. [Citation.] Second, it was not required to allow appellant to successfully reassert the right to jury trial after a valid waiver by counsel. Third, the record showsthatthe trial court assisted appellant in the cross-examination ofthe People’s witnesses andin the presentation of his case.” (Ibid.) Last, the court stated, “We decline the invitation to overrule Oris and continue to believe that it was correctly decided. The instantcase could serve as a paradigm for why a person with a severe mental disorder should notbe allowedto veto his attorney’s decision to waive jury, waive the right to counsel, andinsist on self-representation. As indicated, appellant has made some poor choices but his perceived dilemmais self-created.” (Jbid.) Weagreethat Otis was properly decided. However,insofar as Fisher suggests that counsel can waive a jury over a defendant’s objection in every case, regardless of whether the MDOis competent, Fisher’s view of Otis ignores the facts in Otis andis overbroad. Moreover,although the result in Fisher is reasonable because any error would have been harmless under Watson—i.e., it is not reasonably probably the jury would have returned a more favorable verdict had counsel represented the MDO—we question the Fisher court’s brief and summary analysis. Simply put, if, as the trial court implicitly found, the MDO was sufficiently competent to waive his statutory right to counsel and represent himself (People v. Williams, supra, 110 Cal.App.4th at p. 1591 [right of self-representation in MDOproceedingis statutory]; see Indiana v. Edwards (2008) 554 U.S. 164, 175-176, 178 [court may deny requestfor self-representation where defendant unable to “to carry out the basic tasks needed to present [one’s] own defense without the help of counsel”or “suffer[s] from severe mentalillness to the point where they are not competentto conducttrial proceedings by themselves”]), he certainly would have been sufficiently competent to decide whether he wanted to waivehis right to a jury trial. That being the case, wefail to see whythe Fisher court opined that the case represented a “paradigm” for why an MDOshould notbe able to decide between a bench and jury trial. In our view, the court’s opinion suggests that MDOsare categorically 33 C. VALIDITY OF COUNSEL’S WAIVER Weconsiderit helpful at this point to summarize our resolution ofthe parties’ interlocking but opposing claims and our conclusion concerning th e meaning of the waiver provision and the scope of counsel’s authority. Section 1 026.5 does not require an NGI’s personal waiveror give counsel exclusive control ove r the jury decision. Rather, counsel can waiveajury trial at the NGI’s direction or w ith his or her knowledge and consent; and counsel can also do so whenthe circums tances even over an NGI’s objection when the circumstances give counsel reason to doubt the NGI’s competenceto determine whatis in his or her best interests. With this in mind, wenote the “well established rule in this state that ‘an appellate court will never indulge in presumptionsto defeat a judgment. I t will never presumethat an error was committed, or that something was done or omitted t o be done which constitutes error. On the contrary, every intendment and presump tion not contradicted by or inconsistent with the record on appeal must be indulged in fav or of the orders and judgments of superior courts.’ [Citation.]” (Walling v. Kimball (1 941) 17 Cal.2d 364, 373, italics added; accord, Keenerv. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261; Peoplev. Giordano (2007) 42 Cal.4th 644, 666; see Code Civ. Proc. § 475. ) Accordingly, the appellant bears the burden to affirmatively establish error and th en demonstrate that it resulted in a miscarriage ofjustice that requires reversal. (Cucin ella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Freeman v. Sullivant (2011) 192 Cal.App.4 th 523, 528; Paternov. State ofCalifornia (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 affirmativ ely shown’”].) incompetent to do so. As noted, however, the Supreme Court in Bar rett rejected that simplistic view. 34 Here, the record is silent concerning whether defendant wasin fact aware ofhis rightto a jury trial in this proceeding and whetherhe knew about, directed, authorized, or objected to counsel’s waiver. Underthe circumstances, defendant cannotpossibly satisfy his burden to show that counsel’s waiver was invalid and therefore that the court erred in conducting a benchtrial. Nor could defendant establish that the court’s alleged errors in accepting counsel’s waiver and conducting a benchtrial were prejudicial. It is settled that the denial of the statutory rightto a jury trial is subject to harmless-error review under the Watsontest. (People v. Epps (2001) 25 Cal.4th 19, 29.) Thus, even if the record established that counsel’s waiver wasinvalid, our previous analysis and conclusion that the failure to advise was harmless would apply with equalforce to the denial ofa jury trial. Simply put, given testimony at defendant’s trial, we do notfind it reasonably probable a jury would have returned a morefavorable verdict. (E.g., People v. Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [given evidence, denialof statutory right to MDOtrial harmless].) VIII. PROTECTING THE RIGHT TO A JURY TRIAL Given the defendant’s burden on appeal, the appellate rules and presumptions, and our Watson harmless-error analysis, one could argue that it was unnecessary forus to addressthe merits of the parties’ competing claims of personal waiver and exclusive control. (Cf. Strickland v. Washington (1984) 466 U.S. 668, 697 [where defendant cannot show that counsel’s allegedly deficient conduct wasprejudicial, court need not determine if it was deficient]; People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [same].) However, we considerit important to address and resolve them. First, we continually see appeals from MDO and NGI commitmentorders where, as here, there was a benchtrial; and where, because of the court’s custom and practice of obtaining jury waivers during an unreported discussion in chambers, the record does not 35 reflect counsel’s express waiver andis silent concerning whethe r the defendant knew of the right to jury, andif so, whether the defendant knew abo ut, directed, consented to, or objected to counsel’s waiver. Moreover, in these appeals, the defendants andthe Attorney Generalassert the same claims. Next, we note that the United States Supreme Court has repeate dly recognized that civil “commitment for any purpose constitutes a significant depr ivation ofliberty that requires due process protection.” (Foucha v. Louisiana (1992) 5 04 U.S. 71, 79.) “Moreover,it is indisputable that involuntary commitmentto a [psychiatric] hospital after a finding of probable dangerousnessto self or others can engende r adverse social consequencesto the individual. Whether welabel this phenomen[ on]‘stigma’ or choose to call it something else is less important than that we recognize t hat it can occur andthat it can havea very significant impact on the individual.” (Adding ton v. Texas (1979) 441 U.S. 418, 425-426; People v. Allen (2007) 42 Cal.4th 91, 98.) Given thesimilar liberty and dignity interests implicated in an i nvoluntary commitment, the right to choosethetrier of fact is no less valuab le to an NGI thanit is to a criminal defendant. Moreover, although no constitutional prov ision guarantees an NGI the right to a jury trial, the Legislature nevertheless considered th e right important enough to require a judicial advisement and a jury trial unless validly wa ived. In our view,the purpose of these mandatesis frustrated and the st atutory right to a jury trial is undermined when together, an opaquerecord, the pro cedural rules and presumptions on appeal, and the harmless-error test not only per mit a reviewing court to say, in essence, that we need not know andit does not mat ter, whether the NGI was awareofthe right to a jury trial or whether the right was validly waived. Wehave addressed and resolved theparties’ competing claims b ecause we believe that compliance with the statutory mandates matters even where,as here, the alleged failure to comply with the statute and denial of a jury trial can be deemed harmless. 36 Moreover, in our view, the best assurance of complianceis a record thatreflectsit. Accordingly, we hold that if the court conducts a benchtrial and the NGI did not personally waivetheright to a jury, the record must show that the court advised the defendantoftherightto a jury or, if the court was unable to doso,that the defendant was made awareof the right before counsel waivedit. The record must also show thatin waivingajury trial, counsel acted at the defendant’s direction or with the his or her knowledge and consentor that there were circumstances supporting counsel’s doubt concerning the defendant’s capacity to determine what wasin his or her own best interests. Demanding a clear and explicit record concerning the statutory advisement and waiver requirements imposeslittle, if any, additional burden on the court and parties. Whatslight burden it might impose is clearly outweighed by the importance the Legislature has attached to an NGI’sright to a jury trial and the statutory requirements designed to protect it. In this regard wenotethat the court maystill resolve the jury issue in accordance with its custom andpractice. At some point, however, the court and parties muststate on the record the facts establishing the NGI’s awarenessofthe right to a jury and thevalidity of counsel’s waiver. Alternatively, the record must contain an advisement and waiver form signed by the NGI. VIII. DISPOSITION The order extending defendant’s NGI commitmentis affirmed. 37 RUSHING,P.J. I CONCUR: GROVER,J. People v. Tran H036977 ELIA,J., Concurring I respectfully concur in the judgmenton the groundthat noreversible error has been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal:2d 818, 836.) We must presumefor purposesof this appealthat appellant's counsel waived appellant's right to a jury in accordance with appellant's informed consent (see maj. opn., ante, p. 2). (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [all presumptions are indulged to support a lower court judgmentor order regarding matters as to which the recordis silent; error mustbe affirmatively shown]; see also Conservatorship ofJohn L. (2010) 48 Cal.4th 131, 151-152 [attorney is obligated to keep client fully informed ofproceedings, to advise client of his rights, and to refrain from any act or representation that misleads the court].) It is unnecessary in this case to decide the exact extent of a counsel's authority to waive a jury fortrial on a petition for extended commitmentpursuant to Penal Code section 1026.5, subdivision (b). As the U.S. Supreme Court stated: "The duty ofthis court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can becarriedinto effect, and notto give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case beforeit." (Millsv. Green (1895) 159 U.S.651, 653 [16 S.Ct. 132]; see Eye Dog Foundation v. State Board ofGuide Dogsfor the Blind (1967) 67 Cal.2d 536, 541.) "It is axiomatic that language in a judicial opinionis to be understood in accordance with the facts and issues before the court." (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195.) "An appellate decision is not authority for everything said in the court's opinion but only 'for the points actually involved and actually decided.’ [Citations.]" (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) "[O]nlythe ratio decidendi of an appellate opinion has precedentialeffect [citation.]...." (rope v. Katz (1995) 11 Cal.4th 274, 287.) Since the full scope of counsel's control o ver waiverofjury trial was not at issue in this case, the majority's opinion is largel y dicta. The majority in effect attempts to impose new ru les of procedure regarding jury trial waiver on the lower courts. (Cf. People v. Blackburn (2013) Cal.App.4th [2013 WL 1736497] (opn. of Rus hing, P.J.).) It is not apparent that appellate courts enjoy general supervisory aut hority over superior courts’ practice and procedure. "The judicial powerofthis State is vested in the Supreme Court, courts of appeal, and superior courts, all of w hich are courts of record." (Cal. Const., art. VI, § 1.) The California Const itution makes the Judicial Council, whichis chaired by the Supreme Court's ChiefJusti ce, responsible for adopting "rules for court administration, practice and procedu re.. . "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 ow n governmentand the governmentofits officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." (Gov. Code, § 68070;see CodeCiv.Proc., § 575.1 [promulgation of local court rules].) The Leg islature has encouragedthe "Tudicial Council . . . to adopt rules to provide for unif ormity in rules and procedures throughoutall courts in a county and state wide." (Gov. Code, § 68070, subd.(b).) Someofthe powersofcourts are set out by statute. ( See e.g. Code Civ. Proc., §§ 128, subd. (a) [courts' powers], 177 [judicia l officers’ powers].) Code of Civil Procedure section 187 provides: "When jurisdict ion is, by the Constitution or this Code, or by anyotherstatute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; an d in the exercise of this jurisdiction, if the course of proceeding be not specifi cally pointed outby this Codeorthe statute, any suitable process or mode of pr oceeding may be adopted which may appear most conformableto the spirit of this c ode." 2 "Courts have inherent power, as well as power under section 187 of the Code of Civil Procedure, to adopt any suitable method ofpractice, both in ordinary actions and special proceedings,if the procedureis 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 powerof equity courts, all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority. [Citations.]...' [Citation.]" (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) The majority has cited no cases indicating that a Court of Appeal has inherent authority to impose proceduralrules on inferior courts. Moreover, this court is boundby the constitutional standard of reversible error regardless whether the majority's judicially-imposed rules are followed in future cases. I can endorse the majority's newrules as nonbinding, recommendedpractices to the extent they avoid unnecessary appeals but not as proceduralrules controlling local courts. ELIA,J. People v. Tran H036977 Trial Court: Trial Judge: Attorney for Defendant and Appellant Dawn Quang Tran: Attorneys for Plaintiff and Respondent The People: People v. Tran H036977 Santa Clara County Superior Court No.: 205026 The Honorable Gilbert T. Brown Carl A. Gonser under appointment by the Court of Appeal for Appellant Kamala D. Harris Attorney General DaneR.Gillette, Chief Assistant Attorney General Gerald A. Engler, Senior Assistant Attorney General Laurence K.Sullivan, Supervising Deputy Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General PROOF OF SERVICE I declare that I am overthe age of 18, nota party to this action and my business address is P O Box 151317, San Rafael, CA 94915-1317. On the date shown below, I served the within APPELLANT'S PETITION FOR REVIEW to the following parties hereinafter namedby: X___Placing a true copy thereof, enclosed in a sealed envelope with postage thereonfully prepaid, in the United States mail at San Rafael, California, addressed as follows: SEE ATTACHED CERTIFICATE OF SERVICE BYMAIL I declare under penalty of perjury the foregoing is true and correct. Executed this___//_ day of June, 2013, at San Rafael, California. Cu? Lf -— CARL A. GONSER CERTIFICATE OF SERVICE BY MAIL Office of the Attorney General 455 Golden Gate Avenue, #11000 San Francisco, CA 94102 Santa Clara Superior Court 191 N First Street San Jose, CA 95113 Santa Clara District Attorney 70 W HeddingStreet San Jose, CA 95110 Sixth District Appellate Program 100 N Winchester, Suite 310 Santa Clara, CA 95050 California Court of Appeal Sixth Appellate District 333 W SantaClaraSt, Ste 1060 San Jose, CA 95113 Dawn Q. Tran NapaState Hospital 2100 Napa Vallejo Highway Napa, CA 94558