Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211505
Judge of the Monterey County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. Introduction
The Mentally Disordered Offender (MDO) Act (Act) (Pen. Code, § 2960 et seq.) requires that offenders who have been convicted of violent crimes related to their mental disorders and who continue to pose a danger to society receive mental health treatment until their mental disorder can be kept in remission. The Act has the dual purpose of protecting the public while treating severely mentally ill offenders. It provides for treatment of certified MDOs at three stages of commitment: as a condition of parole (§ 2962), in conjunction with the extension of parole (§ 2966, subd. (c)), and following release from parole (§ 2970). (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061.)
Unspecified section references are to the Penal Code.
In this case, a petition was filed to move defendant Joshua LaFlamme to the third stage of commitment as an MDO. The petition sought to convert his commitment under section 2962 to a commitment under section 2970 and to extend his outpatient treatment pursuant to section 1606. After a court trial at which defendant and his therapist were the only witnesses, the court found that defendant “continues to suffer from a severe mental disorder, that said mental disorder is not in remission, and that by reason of his severe mental disorder, [defendant] represents a substantial danger of physical harm to others.” The court also found that defendant “would not be a danger to the health and safety of others while in supervised outpatient treatment and would benefit from continued outpatient status, ” so the court extended defendant’s outpatient status until August 28, 2011.
On appeal defendant contends that he was never advised by the court about his right to a jury trial and he never personally waived that right. He claims that this right is constitutional, not statutory. The Attorney General disputes that the right is constitutional and that a personal waiver is required. The Attorney General urges us to presume that the court gave the appropriate advisement and that defendant has forfeited his claim. For the reasons stated below, we will affirm the judgment after concluding that the right at issue is statutory, and although the record does not allow us to presume an advisement was given, defendant has not established prejudice.
2. Proceedings
By age 30, defendant had at least 40 admissions to a Santa Cruz hospital on psychiatric grounds with hospitalizations in other facilities as well for psychotic and agitated behavior. He also had about two dozen convictions for violent behavior including assault, battery, and domestic violence. In August 2007, at age 36, defendant was committed to Atascadero State Hospital as a mentally disordered offender after being convicted of striking his pregnant girlfriend repeatedly with a belt. In December 2009, he was released to outpatient treatment under the care and supervision of the South Bay Conditional Release Program.
The petition leading to this appeal was filed in March 2010. Prior to the court trial in August 2010, there were a number of hearings in 2010 at which defendant was not present (March 24, April 23, May 21, June 18, July 2, July 23, and August 12). The record on appeal does not include a reporter’s transcript for any of those hearings. The clerk’s transcript consists of entries on pre-printed minute order forms. The form includes several boxes, with one labeled “Peo / Def Wav Jury, ” another labeled “Adv” followed by various required advisements, another labeled “Wav Right to” and “Court / Jury Trial” among other rights, and “Written Waiver filed.” All these boxes are unchecked on the minute orders for those hearings. The reporter’s transcript of the court trial on August 23, 2010 contains no mention of defendant’s right to a jury trial.
At trial defendant’s therapist, Patricia Dolan, described him as bipolar and manic, with severe psychotic features. She explained her conclusion that defendant posed a continuing danger to others by reason of his mental condition, and stated she was concerned by his multiple hospitalizations and his multiple arrests for violent and impulsive behavior. As late as the week before trial, he had become agitated and pressured in a group meeting and had difficulty being redirected. She believed, based on his history, that he would not be medication compliant if he did not remain in outpatient treatment.
Defendant acknowledged that he had mental health issues, not a mental disorder, and would have to take medication for the rest of his life. He considered his mental health problems to be “pretty small” currently, due to his medication and his residential and outpatient treatment. He had been working with Dolan at Harper Medical for 110 days. He has learned to take time out and calm down when he feels aggressive. He has stabilized on his medication. He felt he did not need a babysitter and was ready to move out on his own.
3. An MDO’s Right To A Jury Trial
On appeal defendant asserts that he was neither advised by the court of his right to a jury trial nor did he personally waive that right. As summarized above, the record on appeal supports both claims.
Section 2972, subdivision (a), states in part: “The court shall conduct a hearing on the petition under Section 2970 for continued treatment. The court shall advise the person of his or her right to be represented by an attorney and of the right to a jury trial.... The hearing shall be a civil hearing, however, in order to reduce costs the rules of criminal discovery, as well as civil discovery, shall be applicable. [¶] The standard of proof under this section shall be proof beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict. The trial shall be by jury unless waived by both the person and the district attorney.”
A. The Right to Jury Trial on Extending an MDO Commitment is Statutory.
Defendant asserts that he had a federal and state constitutional right under due process to a jury trial. The Attorney General disputes the existence of such a constitutional right.
1. Federal Authority
The Sixth Amendment right to a jury trial in all criminal prosecutions is extended to proceedings in state courts under the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145, 149-150.) It does not, however, apply to proceedings that are not criminal prosecutions. (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541, 550, 553-554.) The United States Supreme Court has not directly considered whether the right to a jury trial applies to civil commitments based on a person’s dangerousness due to a mental disorder. Federal appellate courts have considered this question and concluded that a federal hospital commitment for a person adjudged incompetent to stand trial “serves a regulatory, rather than punitive, purpose” to which the Sixth Amendment right to a jury trial does not apply. (U.S. v. Sahhar (9th Cir. 1990) 917 F.2d 1197, 1205-1206.)
The right to a jury trial under the Seventh Amendment for civil suits at common law is not one of the amendments selectively incorporated as part of the process due in state courts under the Fourteenth Amendment. (McDonald v. City of Chicago (2010) __ U.S. __, 130 S.Ct. 3020, 3034-3035, fn. 13.)
The due process clause of the Fifth Amendment has not been interpreted to require a jury trial in federal civil commitment proceedings based on a person’s dangerousness or mental incompetence (U.S. v. Sahhar, supra, 917 F.2d 1197, 1207 [“due process does not require a jury trial” in a federal criminal proceeding determining a defendant’s competence to stand trial]; U.S. v. Carta (1st Cir. 2010) 592 F.3d 34, 43 [no due process right to jury trial in federal civil commitment as sexually dangerous person]), though other attributes of due process do apply. Specht v. Patterson (1967) 386 U.S. 605 (Specht) found that commitment proceedings under Colorado’s Sex Offenders Act, which resulted in imposition of “criminal punishment” at sentencing based on a psychiatrist’s written report, violated due process. (Id. at p. 608-609.) The court determined that “[d]ue process... requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed.” (Id. at p. 610.)
2. State Authority
The California Constitution affords “an inviolate right” to a jury trial in criminal actions in which a felony or a misdemeanor is charged. (Cal. Const., art. 1, § 16.) A variety of California statutes have provided for the involuntary commitment and treatment of persons incompetent to stand trial or otherwise dangerous by virtue of mental illness. Defendant reviews cases arising under the Sexually Violent Predators Act, the MDO Act, the Lanterman-Petris-Short (LPS) Act, confinement of the developmentally disabled and mentally retarded, and restoration of sanity proceedings. These proceedings are generally recognized to be essentially civil, not criminal, although their subjects are afforded by statute some of the same rights constitutionally due criminal defendants. (E.g., In re De La O (1963) 59 Cal.2d 128, 150 [narcotics addict commitment proceedings “are in the nature of special civil proceedings unknown to the common law, and hence there is no right to jury trial unless it is given by the statute.”]; In re Bevill (1968) 68 Cal.2d 854, 858 [commitments under since repealed mentally disordered sex offender statutes “are civil in nature and are collateral to the criminal proceedings.”]; In re Gary W. (1971) 5 Cal.3d 296, 309 (Gary W.) [extensions of commitment to former California Youth Authority under Welfare and Institutions Code section 1800 “are not juvenile proceedings, and are not criminal, ” but “are ‘special proceedings of a civil nature.’ ”].)
The California Constitution also affords a right to jury trial in civil cases when such a right existed at common law when the Constitution was adopted in 1850. (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 286-287.) If such a right existed, it cannot be avoided by the Legislature calling an action a special proceeding or equitable in nature. (Id. at p. 299.) We do not understand defendant to be suggesting that there was any common law analog to proceedings to extend the outpatient treatment of an MDO. (Cf. People v. Fuller (1964) 226 Cal.App.2d 331, 335 [sexual psychopathy proceedings were “civil in nature and of a character unknown at common law” and therefore, “the use of a jury is a matter of legislative grant and not of constitutional right.”].)
In People v. Masterson (1994) 8 Cal.4th 965 (Masterson) at page 969, the Supreme Court surveyed authority pertaining to the right to a jury trial in a proceeding to determine competency to stand criminal trial. “[W]hat applies in a criminal case does not necessarily apply to a competency proceeding. A competency proceeding, although certainly related to the underlying criminal case, is not itself a criminal action. As the Court of Appeal correctly observed, ‘A proceeding to determine competency to stand trial is neither a criminal action nor a civil action; rather, it is a special proceeding. (Code Civ. Proc., § 23; [citations].)’ [Citation.] [¶] Although there is a constitutional right to a jury trial in criminal and civil actions (Cal. Const., art. I, § 16), there is no such right in a competency proceeding. There is indeed a right to a jury trial in a competency proceeding, but it is statutory, not constitutional. (Pen. Code, § 1369; [citations].)” The court concluded in Masterson that defense counsel could waive the statutory right to a jury trial in a mental competency hearing pursuant to sections 1368 and 1369, even over the defendant’s objection. (Id. at p. 974.)
While Masterson is informative, People v. Montoya (2001) 86 Cal.App.4th 825 (Montoya), on which the Attorney General relies, is directly on point. Montoya was an appeal from an extended commitment under section 2970. In that case, the hearing was originally scheduled for a jury trial, but was reset for a court trial in the defendant’s absence. When the court trial commenced with the defendant present, defense counsel acknowledged having waived jury. (Id. at pp. 827-828.)
The defendant in Montoya argued “at length, citing to numerous federal cases dealing with the Sixth Amendment jury trial rights of criminal defendants, that because he did not personally waive his right to a jury trial, his federal and state constitutional rights were infringed.” (Montoya, supra, 86 Cal.App.4th. at pp. 828-829.) The appellate court stated: “in proceedings that are neither civil nor criminal, but ‘special proceedings, ’ such as a competency hearing, the right to a jury trial may be waived by counsel, even over defendant’s express objection. (Masterson, supra, at p. 969.) [¶] Although a section 2970 hearing, like a competence hearing, is something of a hybrid, a civil hearing with criminal procedural safeguards, [fn. omitted] it is nonetheless, as the statute clearly states and California courts have consistently agreed, a civil hearing.” (Id. at pp. 829-830.) The court concluded, “[a]s a civil hearing, jury trial may thus be waived ‘as prescribed by statute.’ (Cal. Const., art. I, § 16.) The question then is whether the words ‘[t]he trial shall be by jury unless waived by both the person and the district attorney’ in section 2972 mean defense counsel may waive jury trial on behalf of his client, as happened in the instant case. We think they do.” (Ibid.)
Finding no federal due process right, the Montoya court observed that, “[a] jury sitting in a civil hearing pursuant to sections 2970 and 2972 does not impose criminal punishment and has no power to determine the extent to which the defendant will be deprived of his liberty. Defendant’s jury trial interest thus is, in this case, ‘merely a matter of state procedural law’ and does not implicate the Fourteenth Amendment.” (Montoya, supra, 86 Cal.App.4th at p. 832.)
Defendant suggests that the Montoya decision, filed January 30, 2001, has been invalidated by the enactment of section 2972.1 (stats. 2000, ch. 324, § 4), which took effect January 1, 2001. That statute “provides a separate set of procedures applicable to MDOs who have received a year of outpatient treatment” after a judicial commitment to outpatient status. (People v. Morris (2005) 126 Cal.App.4th 527, 537.) Under section 2972.1, an automatic annual review hearing can be avoided through a written waiver of trial signed by “both defense counsel and the person on outpatient status” after a treating medical director recommends continuing an MDO on outpatient treatment.
Section 2972.1, subdivision provides in part: “(c)(1) Upon receipt of a report prepared pursuant to Section 1606 that recommends confinement or continued outpatient treatment, the court shall direct prior defense counsel, or, if necessary, appoint new defense counsel, to meet and confer with the person who is on outpatient status and explain the recommendation contained therein. Following this meeting, both defense counsel and the person on outpatient status shall sign and return to the court a form which shall read as follows: [¶] ‘Check One: [¶] ‘I do not believe that I need further treatment and I demand a jury trial to decide this question. [¶] ‘I accept the recommendation that I continue treatment.’
We do not see how section 2972.1 undermines the reasoning of Montoya or transforms a statutory right into a constitutional right. Section 2972.1 addresses only the special case of the annual hearing due an MDO who has already received a one-year judicial commitment to outpatient treatment. Montoya authorizes defense counsel to appear and orally waive the jury trial due under section 2970 on behalf of MDOs at various earlier stages of treatment, including those who have previously refused treatment as an MDO as a condition of parole, those who have only received inpatient treatment, and those, like defendant, who have been placed in an outpatient treatment program by the State Department of Mental Health. (§ 2964, subd. (a).)
Section 2970 provides in part: “Not later than 180 days prior to the termination of parole, or release from prison if the prisoner refused to agree to treatment as a condition of parole as required by Section 2962, unless good cause is shown for the reduction of that 180-day period, if the prisoner’s severe mental disorder is not in remission or cannot be kept in remission without treatment, the medical director of the state hospital which is treating the parolee, or the community program director in charge of the parolee’s outpatient program, or the Director of Corrections, shall submit to the district attorney of the county in which the parolee is receiving outpatient treatment, or for those in prison or in a state mental hospital, the district attorney of the county of commitment, his or her written evaluation on remission.”
Although Montoya is on point, defendant urges the application of cases arising in different contexts to find a constitutional dimension here. We conclude, however, that the constitutional analysis in those authorities is outdated.
In Gary W., supra, 5 Cal.3d 296 and its companion case, People v. Smith (1971) 5 Cal.3d 313, the Supreme Court concluded that a juvenile facing an extension of his or her commitment to the former California Youth Authority under Welfare and Institutions Code section 1800 is entitled to a jury trial, noting that mentally disordered sex offenders were entitled by statute to jury trials (former Welf. & Inst. Code, § 6318), as are narcotics addicts (Welf. & Inst. Code, §§ 3050, 3051, and 3108). The right to jury trial is required by both due process and equal protection where there is no “compelling state purpose for the distinction between the class of persons subject to commitment pursuant to section 1800 and to other classes of persons subject to involuntary confinement” through civil commitment proceedings. (Gary W., supra, 5 Cal.3d at p. 307.)
In People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas), the Third District Court of Appeal relied on Gary W. to conclude that mentally retarded persons subject to confinement due to dangerousness under Welfare and Institutions Code sections 6500 et seq. are entitled by equal protection and due process to be advised of their right to a jury trial, since the LPS Act (Welf. & Inst. Code, § 5302) requires such advice to persons potentially dangerous to themselves or others. (Alvas, supra, 221 Cal.App.3d at pp. 1463-1465.)
Analyzing the requirements of due process, the court reasoned that “Gary W. observed that loss of liberty occasioned by involuntary confinement for treatment is not made less fundamental by virtue of its purpose, and that in extending the right to trial by jury to persons subject to civil commitment proceedings (§ 5303 of the LPS Act) the Legislature recognized that the interest involved was no less fundamental than that involved in criminal proceedings. [Citing Gary W., supra, 5 Cal.3d at pp. 306-307.] [¶] Following the reasoning of the cited authority makes clear that the focus is on the resultant deprivation of liberty, rather than upon the procedural mechanism, be it designated civil or criminal, used in achieving that result. We think it is beyond dispute that the right to a jury trial in adult involuntary commitment proceedings is a right of constitutional dimension.” (Alvas, supra, 221 Cal.App.3d. at pp. 1464-1465.)
In People v. Bailie (2006) 144 Cal.App.4th 841 (Bailie), the Third District was asked to revisit its decision in Alvas in light of later decisions. The court found it was “not necessary to determine whether [the Third District’s decision in People v.] Rowell [(2005) 133 Cal.App.4th 447] and its antecedents have undermined Alvas’s due process analysis. Alvas’s equal protection analysis remains sound, inasmuch as the Legislature has not amended [Welfare and Institutions Code] sections 5302 or 6500 to remedy the disparate treatment of jury trial advisements.” (Id. at p. 847.) Bailie, like Alvas, involved failures to advise a person of the right to a jury trial in Welfare and Institutions Code section 6500 proceedings or to secure a personal waiver of that right.
The California Supreme Court is currently considering the validity of Alvas and Bailie after this court disagreed with those decisions in People v. Barrett (2009) 181 Cal.App.4th 196 (review granted Mar. 1, 2010, S180612). The issues pending before the Supreme Court are: “Do principles of due process or equal protection require the trial court to affirmatively advise a person facing commitment under Welfare and Institutions Code section 6500 of his or her right to a jury trial and, if so, to obtain an express waiver of that right on the record?”
We understand defendant to rely on the due process reasoning of Gary W. and Alvas. But we believe that reasoning has been eroded by subsequent case law.
Defendant also relies on People v. Sweeney (2009) 175 Cal.App.4th 210 (Sweeney) as establishing a due process right to a jury trial in all civil commitment cases. Sweeney, like Alvas and Bailie, involved a mental retardation commitment. The defendant received a jury trial. The essential question posed by that appeal was, “Does the court or jury decide if the predicate offense charge involves ‘death, great bodily injury, or an act which poses a serious threat of bodily harm to another person’? ([Welf. & Inst. Code, ] § 6500.)” (Id. at p. 216.) Analogizing the civil proceeding to a criminal trial, the court concluded that since the violent or assaultive nature of the felony was an element to be proven in section 6500 proceedings, due process required that the question be submitted to the jury. (Id. at pp. 217-218.) We understand Sweeney as describing what process is due during a jury trial, not whether a jury trial itself was part of the process due.
Gary W. and Alvas were concerned about the potential for deprivation of liberty. The Supreme Court has since pointed out in People v. Tilbury (1991) 54 Cal.3d 56 (Tilbury) at page 69 that “the involvement of a liberty interest does not by itself implicate the right to a jury. Juries have not been found necessary in other proceedings that can result in deprivations of liberty. (E.g., Morrissey v. Brewer [(1972)] 408 U.S. 471, 488-489 [stating the minimum requirements of due process in parole revocation hearings]; McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541-551 [the due process clause of the Fourteenth Amendment, incorporating the Sixth Amendment, does not require juries in juvenile court proceedings]; Baldwin v. New York (1970) 399 U.S. 66, 68-74 [the same is true in trials of petty offenses].) Instead, the importance of the insanity acquittee’s liberty interest is reflected by such a person’s right to the substantial procedural safeguards associated with trials, including, among other things, the right to counsel, to a detached and neutral judicial officer, to present evidence, and to cross-examine adverse witnesses. (See § 1026.2, subd. (e) [the hearing on unconditional release is a ‘trial’ before the superior court].)” The court also observed that “ ‘ “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” ’ [Citations.] However, due process does not call for the same procedures in every situation. Instead, ‘ “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” ’ ” (Id. at p. 68.)
The issue in Tilbury was whether a person “who has been found not guilty by reason of insanity and committed to a state hospital, is entitled to a jury trial on the issue of his eligibility for placement in a community mental health program as a supervised outpatient.” (Tilbury, supra, 54 Cal.3d. at p. 59.) In finding that a jury trial was not part of the process due, the court observed: “there is no reason to believe that a jury’s decision on outpatient placement would be more reliable than a judge’s. The decision to be made is whether ‘the applicant will not be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community.’ (§ 1026.2, subd. (e).) Juries have no more expertise in predicting future dangerousness than judges. Moreover, in the event of an erroneous decision the committed person has recourse to the writ of habeas corpus and to direct appeal (see Code Civ. Proc., § 904.1, subd. (b)), which are the same mechanisms that ensure the reliability of jury verdicts.” (Id. at p. 69.)
The Tilbury majority did not discuss or distinguish Gary W. In turn, Montoya did not discuss Tilbury or Gary W. But we consider the reasoning of Tilbury to support the conclusion in Montoya.
The possible outcomes of a section 2972 hearing, if the petition is sustained, are that “the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed, or recommitted to the outpatient program in which he or she was being treated at the time the petition was filed, or committed to the State Department of Mental Health if the person was in prison. The commitment shall be for a period of one year from the date of termination of parole or a previous commitment or the scheduled date of release from prison as specified in Section 2970.” (§ 2972, subd. (c).) In defendant’s case, the infringement on his liberty is to require him to continue to receive outpatient treatment for one year.
While some process is constitutionally due whenever an involuntary commitment involves a significant deprivation of liberty, that process does not include elevating a statutory right to a constitutional right that is not otherwise recognized at common law in special proceedings. We conclude that defendant has neither a federal nor a state constitutional right to a jury trial in a hearing under sections 2970 and 2972.
B. We Cannot Presume that the Court Advised Defendant of His Statutory Right to a Jury Trial.
The Attorney General relies on Evidence Code section 664 to assert that, “[a]bsent a contrary indication in the record, we must presume that the trial court was aware of and” performed its duty to advise defendant as required by section 2972. The Attorney General cites eight cases in support, only one of which presumed that a required judicial admonition was given.
In People v. Sullivan (2007) 151 Cal.App.4th 524, the defendant claimed that “his waiver of the right to counsel was defective for lack of proper admonitions.” (Id. at p. 544.) The record on appeal in that case included a minute order showing that the defendant had waived his right to counsel in order to represent himself, but did not include a reporter’s transcript of that hearing. (Id. at p. 548.) Relying on Evidence Code section 664, the court stated, “Without the record, we must presume that the court regularly performed the lawful duty of informing defendant of the dangers and disadvantages of self-representation, and the consequences of his decision, before accepting his express waiver of his right to counsel.” (Id. at p. 550.)
But the performance of official duties cannot be presumed when the official records suggest otherwise. (People v. Sumstine (1984) 36 Cal.3d 909, 923 [record of guilty plea must reflect advisement of rights to jury trial and confrontation and against self-incrimination].) As described above, the minute order forms used in this case allowed the clerk to check boxes showing that defendant had been advised of his right to a jury trial and had waived that right; neither was recorded in this case. As defendant points out, this amounts to evidence that the official duty to advise defendant was not performed.
4. Defendant Has Not Shown Prejudice.
Here, the appellate record does not establish either that the trial court advised defendant of his statutory right to a jury trial or that his attorney expressly waived that right. These are errors of state law reviewable under People v. Watson (1956) 46 Cal.2d 818, and the question is whether it is reasonably probable that a result more favorable to defendant would have been reached absent the errors.
Defendant argues it is reasonably probable that a jury could have concluded that “even if continued treatment might be beneficial to [defendant, ] the prosecution had not proved that [defendant] currently posed a danger of physical harm to others.” His position appears to be that a jury, unlike the trial judge, is likely to have entertained a reasonable doubt about his therapist’s expert opinion.
People v. Cosgrove (2002) 100 Cal.App.4th 1266, found the denial of a jury trial harmless when the expert testimony in support of an MDO finding was “overwhelming” and essentially unshaken by cross-examination. (Id. at p. 1276.) We will not characterize the expert’s testimony here as overwhelming, but neither are we persuaded that it was unreliable regarding defendant’s need for continued involuntary treatment. Defendant acknowledged a life-long need to continue taking medication for his mental health issues. He presented no expert evidence to contradict his therapist regarding his potential for danger. We conclude that it is not reasonably probable that a jury would have evaluated the trial testimony any differently than did the trial judge.
In light of this conclusion, we need not resolve the Attorney General’s contention that defendant has forfeited his appellate challenge by failing to object to a court trial, coupled with failing to request reporter’s transcripts of all hearings in this case.
5. Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., DUFFY, J.
“[¶]... [¶]
“(d) If the person on outpatient status either requests a jury trial or fails to waive his or her right to a jury trial, a jury trial meeting all of the requirements of Section 2972 shall be set within 60 days of the initial hearing.”