Opinion
No. H034006.
5-6-2010
THE PEOPLE, Plaintiff and Respondent, v. FRANK HILL THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
In 1983, Frank Hill Thomas was found not guilty of a felony (former Pen. Code, § 288, subd. (b)) by reason of insanity (NGI) and committed to a state hospital. He now appeals from the March 5, 2009 order extending his NGI commitment under Penal Code section 1026.5, subdivision (b), following a court trial.
All further statutory references are to the Penal Code unless otherwise specified.
Under section 1026.5, subdivision (b)(4), the trial on a petition for extended commitment of an NGI committee must "be by jury unless waived by both the person and the prosecuting attorney." Appellant argues that he had both a statutory right and a constitutional due process right to a jury trial unless personally waived by him and the trial court deprived him of those rights by not obtaining his personal waiver. He also maintains that principles of equal protection required the trial court to obtain his personal waiver of jury trial.
We reject appellants contentions and affirm.
A. Procedural Background
On September 11, 2008, a petition to extend appellants commitment pursuant to section 1026.5, subdivision (b), was filed.
On January 9, 2009, appellants counsel appeared without appellant. The matter was set for a court trial on March 5, 2009.
On March 5, 2009, appellant and his counsel were present in the courtroom. The court announced, without objection, that the matter was set for a court trial on the petition that day. The People immediately called their sole witness, a staff psychologist at Napa State Hospital.
The court trial was underway and the Peoples expert witness was being examined when appellants counsel indicated to the court that appellant wished to leave the courtroom. When questioned by the court, appellant complained that the witness was "not certified." When asked again whether he wanted to be present for the hearing, appellant said, "I wanted to be for a jury trial, and you are out of time with the date, too, the extension date." The exchange continued and appellant indicated that he did not want to stay and listen. The court indicated that appellant would be placed in the holding cell outside the courtroom and instructed appellant to "let us know in some fashion" if he changed his mind. Appellant stated, "I can get certified people and then maybe I will listen to you." Appellant was removed from the courtroom.
The Peoples expert witness testified that appellant had been diagnosed with schizophrenia and pedophilia. According to the expert, appellant had a history of not taking medication sometimes or thinking that he does not need medication. He had a consistent underlying paranoia. He consistently disobeyed rules and became verbally aggressive when admonished for misbehavior. Appellant also denied committing any sexual offense, denied having a mental disorder, and refused to participate in any sex offender treatment. The expert opined that appellants mental condition caused him to have serious difficulty controlling his behavior and he currently represented a substantial danger of physical harm to others.
No witnesses were called on behalf of appellant.
B. No Statutory Right to Personally Waive Jury Trial
Appellant argues that the "clear and unambiguous" language of section 1026.5, subdivision (b), guaranteed him the right to a jury trial unless personally waived by him. On appeal, respondent does not contend that the general forfeiture rule applies to this contention.
Appellant is not asserting that he had a constitutional right to a jury trial or to personal waiver of jury trial under the California Constitution. The right to a jury trial under the California Constitution (Cal. Const., art. I, § 16) does not apply to special proceedings of a civil nature. (Corder v. Corder (2007) 41 Cal.4th 644, 656, fn. 7; Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 76; see Code Civ. Proc., §§ 21 [judicial remedies are divided into two classes: actions and special proceedings], 22 [an "action" is statutorily defined as "an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense"], § 23 ["Every other remedy is a special proceeding"], § 24 ["Actions are of two kinds: [¶] 1. Civil; and [¶] 2. Criminal"].) Civil commitment proceedings are generally considered special proceedings of a civil nature. (Cf. People v. Yartz (2005) 37 Cal.4th 529, 534 [SVPA commitment proceeding is a special proceeding of a civil nature]; People v. Barrett (2009) 181 Cal.App.4th 196, 209-210 [proceeding to commit "mentally retarded" person impliedly special proceeding of a civil nature].) The Legislature may, however, provide for a jury trial in a special proceeding by statute. (Corder v. Corder, supra, 41 Cal.4th at p. 656, fn. 7; Cornette v. Department of Transp., supra, 26 Cal.4th at p. 76.)
Appellant arguably forfeited his statutory claim by failing to either request a jury trial or object to a court trial. In People v. Vera (1997) 15 Cal.4th 269, the defendant "claimed on appeal that the trial court erred when it conducted a court trial on the truth of the prior prison term allegations without first obtaining an express, personal waiver of his right to jury trial." (Id. at p. 274, abrogated on another point by Apprendi v. New Jersey (2000) 530 U.S. 466 .) The California Supreme Court first determined that "the deprivation of the statutory right to jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to jury trial." (Id. at p. 278, see id. at p. 279.) The court held: "Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations." (Id. at p. 278.) Having "failed to object to the discharge of the jury or otherwise indicate to the trial court his desire for jury trial of the prior prison term allegations," defendant was "precluded from arguing for the first time on appeal that the trial court erred by conducting court trial on the truth of the prior prison term allegations without having first obtained from defendant an express, personal waiver of jury trial." (Id. at p. 281; cf. People v. Simon (2001) 25 Cal.4th 1082, 1086 ["pursuant to the general legal doctrine that a party may forfeit a right by failing to assert it in a timely fashion, a defendant in a felony proceeding forfeits a claim of improper venue [under governing statute] when he or she fails specifically to raise such an objection prior to the commencement of trial"].) Assuming appellants statutory claim was not forfeited, however, we find it without merit.
The commitment of a person found NGI pursuant to Section 1026 may be extended beyond the prescribed maximum term of commitment (see 1026.5, subd. (a)(1) [defining "maximum term of commitment"]) "only under the procedure set forth in [section 1026.5, subdivision (b),] and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others" (§ 1026.5, subd. (b)(1)) and the person has serious difficulty controlling his or her dangerous behavior (see People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159-1165;People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo (2006) 142 Cal.App.4th 531, 536-537; see also In re Howard N. (2005) 35 Cal.4th 117, 122, 132; Kansas v. Crane (2002) 534 U.S. 407, 412-413 ; Kansas v. Hendricks (1997) 521 U.S. 346, 358 ). When a petition for extended commitment is filed under section 1026.5, subdivision (b)(1), the court must "advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial." (§ 1026.5, subd. (b)(3).) The court must "conduct a hearing on the petition for extended commitment" and the trial must "be by jury unless waived by both the person and the prosecuting attorney." (§ 1026.5, subd. (b)(4).) Section 1026.5, subdivision (b), does not expressly require a personal waiver of the right to jury trial. (Cf. Welf. & Inst. Code, § 1801.5 ["trial shall be by jury unless the right to a jury trial is personally waived by the person"]; cf. also Cal. Const., art. I, § 16 ["A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendants counsel"].)
Appellant contends that section 1026.5, subdivision (b), implicitly establishes a right to personally waive jury trial since the court is required to advise "the person named in the petition" of the right to a jury trial (§ 1026.5, subd. (b)(1)), trial must be by jury trial "unless waived by both the person and the prosecuting attorney" (§ 1026.5, subd. (b)(4)), and "[t]he person" is "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings" (§ 1026.5, subd. (b)(7)). We are not persuaded.
The general rule in both civil and criminal matters is that "a partys attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters." (In re Horton (1991) 54 Cal.3d 82, 94.) In a criminal case, "`[c]ounsel may waive all but a few fundamental rights for a defendant. (People v. Riel (2000) 22 Cal.4th 1153, 1196 . . . .)" (People v. Hinton (2006) 37 Cal.4th 839, 873.) One of the fundamental rights that must be personally waived by a criminal defendant is the constitutional right to trial by jury. (See People v. Masterson (1994) 8 Cal.4th 965, 969; In re Horton, supra, 54 Cal.3d at p. 95.) But even a criminal defendant has no right to personally waive statutory rights to jury trial. (See People v. Vera, supra, 15 Cal.4th at p. 278 [state constitutional requirement of an express, personal waiver of jury trial does not apply to the statutory right to jury trial on the prior prison term allegations]; People v. Masterson (1994) 8 Cal.4th 965, 972 [counsel may waive the right to a jury trial in a competency proceeding]; cf. People v. Hinton, supra, 37 Cal.4th at pp. 874-875 [trial court not required to secure defendants express, personal waiver of statutory right to a separate proceeding on the prior-murder-conviction special-circumstance allegation].) Recently, the California Supreme Court has concluded that, in an LPS conservatorship proceeding, that "[w]hen a statutory right in a civil commitment scheme is at issue, the proposed conservatee may waive the right through counsel if no statutory prohibition exists. [Citations.]" (In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 148 [court assumed that Probate Code section 1825 conferred upon a proposed LPS conservatee the general right to attend a conservatorship hearing].) In this case, while we assume the right to jury trial established by section 1026.5, subdivision (b)(4), belongs to appellant, we also observe that there is no express statutory prohibition against waiving the right through counsel.
In People v. Powell (2004) 114 Cal.App.4th 1153, an appellate court determined section 1026.5, subdivision (b), did not require a personal jury trial waiver. It observed that "[t]he Legislature, in enacting section 1026.5, did not say that the jury waiver must be `personally made by the NGI committee. [Citations.]" (Id. at p. 1159.) We have located two other civil commitment provisions that establish a right to jury trial using language similar to that contained in section 1026.5, subdivision (b)(4), that appellate courts have construed. They are section 2966, subdivision (b), and section 2972, subdivision (a). Those provisions have been likewise held to not require a personal waiver of jury trial.
We recognize that there are also appellate cases, in which different statutory language was at issue, concluding that prospective committees subject to involuntary commitment proceedings have no right to personally waive jury trial. (See e.g. People v. Rowell (2005) 133 Cal.App.4th 447, 452 [SVP case]; Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 146-148 [LPS conservatorship case].)
Section 2966, subdivision (b), authorizes a prisoner, who disagrees with the determination of the Board of Prison Terms that he or she qualifies as a mentally disordered offender (MDO) under section 2962, to file a petition for a hearing on whether he or she, as of the date of the Board of Prison Terms hearing, met the criteria of section 2962. It provides in pertinent part: "The trial shall be by jury unless waived by both the person and the district attorney." In People v. Otis (1999) 70 Cal.App.4th 1174, an appellate court determined that the section did not require a personal waiver of jury trial: "Section 2966 concerns persons who have been found by the Board of Prison Terms to be mentally disordered. The Legislature must have contemplated that many persons, such as Otis, might not be sufficiently competent to determine their own best interests. There is no reason to believe the Legislature intended to leave the decision on whether trial should be before the court or a jury in the hands of such a person." (Id. at p. 1177.) It stated: "Had the Legislature intended that waiver could only be made personally by the petitioner, the Legislature would have made its intent clear." (Id. at p. 1176.)
Section 2972, subdivision (a), requires "a hearing on the petition under Section 2970 for continued treatment" of an MDO. It states in pertinent part: "The trial shall be by jury unless waived by both the person and the district attorney." (§ 2972, subd. (a).) People v. Montoya (2001) 86 Cal.App.4th 825, 830, held that defense counsel could validly waive this statutory right to jury trial on behalf of his client. The court observed that "the Legislature knows how to make clear when a personal jury waiver is required." (Id. at p. 831.)
"It is an established rule of statutory construction that similar statutes should be construed in light of one another [citations], and that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]" (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on another point in People v. Martinez (1991) 20 Cal.4th 225, 229, 237, fn. 6.) Further, in construing a statute, a courts responsibility "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted . . . ." (Code Civ. Proc., § 1858.) Courts "may not, under the guise of interpretation, insert qualifying provisions not included in the statute. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349 . . . .)" (Estate of Griswold (2001) 25 Cal.4th 904, 917.) Since section 1026.5, subdivision (b), does not contain an express statutory prohibition against "the person" waiving the right through his or her counsel, we conclude that the language "unless waived by . . . the person" in subdivision (b)(4) of section 1026 does not, by itself, create a requirement that the trial court obtain a personal, express waiver of jury trial from the named respondent.
The next question is whether, as appellant asserts, section 1026.5, subdivision (b)(7), when read in conjunction with subdivision (b)(4), requires the statutory right to jury trial to be personally waived. Section 1026.5, subdivision (b)(7), states in pertinent part: "The person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees." The California Constitution, article I, section 16, states: "A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendants counsel." (See People v. Ernst (1994) 8 Cal.4th 441, 448 [rejecting "a totality-of-the-circumstances test" for a criminal defendants waiver of jury trial since the California Constitution requires express waiver in open court], abrogated on another ground in People v. French (2008) 43 Cal.4th 36, 53, fn. 8; cf. People v. Holmes (1960) 54 Cal.2d 442, 444 [holding, under similar predecessor provision of California Constitution, that a criminal defendants jury trial waiver "will not be implied from a defendants conduct"]; Patton v. U.S. (1930) 281 U.S. 276, 312 ["the express and intelligent consent of the defendant" is required for effective waiver of right to jury trial under the Sixth Amendment to the U.S. Constitution], abrogated on another point in Williams v. Florida (1970) 399 U.S. 78, 86 ; Johnson v. Zerbst (1938) 304 U.S. 458, 464 ["A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege"]; Federal Rules of Criminal Procedure, rule 23(a) [requiring written waiver of jury trial by defendant].)
The California Constitution does not require a personal waiver of the constitutional right to jury trial in civil actions. The California Constitution provides that "[i]n a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute." (Cal. Const., art. I, § 16.) Code of Civil Procedure section 631 enumerates the means by which a party waives jury trial. It states in part: "(a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (d). . . . [¶] (d) A party waives trial by jury in any of the following ways: [¶] (1) By failing to appear at the trial. [¶] (2) By written consent filed with the clerk or judge. [¶] (3) By oral consent, in open court, entered in the minutes. [¶] (4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. [¶] (5) By failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b) [advance jury fees]. [¶] (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding days session, the sum provided in subdivision (c) [sum equal to that days fees and mileage of the jury]." It has been recognized that "the acts described will normally be performed by counsel . . . ." (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 411 (conc. opn. of Bird, C.J.).)
In People v. Powell, supra, 114 Cal.App.4th 1153, the court stated: "`Although many constitutional protections relating to criminal proceedings are available in extension proceedings, the application of all such protections is not mandated by section 1026.5. The statutory language [of subdivision (b)(7) of section 1026.5] merely codifies the application of constitutional protections to extension hearings mandated by judicial decision. (People v. Superior Court (Williams), at p. 488 . . . .) Notwithstanding section 1026.5, subdivision (b), the following constitutional rights have been held not applicable in a `not guilty by reason of insanity commitment extension trial: 1. ex post facto, 2. privilege against self-incrimination, and 3. double jeopardy. (Id., at p. 488 . . . .) We add to this list the personal waiver of jury trial." (Id. at pp. 1157-1158.)
People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477 ("Williams"), which was quoted by the Powell court, held that "double jeopardy prohibitions are not applicable to Penal Code section 1026.5 proceedings either by constitutional mandate or by virtue of the language of the statute itself." (Id. at p. 481, see id. at p. 488.) The Williams court stated that "[t]he statutory language merely codifies the application of constitutional protections to extension hearings mandated by judicial decision." (Id. at p. 488.) Citing People v. Henderson (1981) 117 Cal.App.3d 740, 748, the court also affirmed that section 1026.5, subdivision (b)(7), "does not extend the protection of constitutional provisions which bear no relevant relationship to the proceedings." (Ibid.)
In People v. Henderson, supra, 117 Cal.App.3d 740, an appellate court considered the language of former Welfare and Institutions Code section 6316.2, subdivision (e), which provided with regard to proceedings to extend the commitment of a mentally disordered sex offender (MDSO): "The patient shall be entitled to the rights guaranteed under the Federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees. . . ." The Henderson court rejected the contention that "the explicit entitlement of an MDSO in an extension hearing to the rights guaranteed under the Federal and State Constitutions for criminal proceedings ([former] § 6316.2, subd. (e)) mandates application here of the constitutional privileges against self-incrimination." (Id. at p. 747.) It concluded: "Subdivision (e) of section 6316.2 codifies the application of constitutional protections to MDSO proceedings mandated by judicial decision (see, e. g., People v. Burnick [(1975) 14 Cal.3d 306] [proof beyond a reasonable doubt required in MDSO proceedings]; People v. Feagley [(1975) 14 Cal.3d 338] [proof beyond a reasonable doubt and unanimous verdict required in MDSO proceedings]). It does not extend the protection of the constitutional privileges against self-incrimination to testimonial communications which are not incriminatory." (Id. at p. 748.)
Appellant urges us not to follow Powell because People v. Haynie (2004) 116 Cal.App.4th 1224 "fatally undercut the Powell decision," which had relied upon Williams. The Haynie court agreed with Williams that "section 1026.5 does not extend the `protection of constitutional provisions which bear no relevant relationship to the proceedings[]" (id. at p. 1229), but disagreed "with the broad statement in Williams . . . that the statutory language `merely codifies the application of constitutional protections to extension hearings mandated by judicial decision." (Id. at p. 1230.) It determined that section 1026.5, subdivision (b)(7), "extends an absolute right not to testify to persons during a commitment-extension trial pursuant to section 1026.5." (Id. at pp. 1227-1230.)
We find it unnecessary to resolve the scope of constitutional protections incorporated by section 1026.5, subdivision (b)(7). As we will subsequently explain, even putting aside Powell, we conclude that subdivision (b)(7) did not incorporate the requirement that a criminal defendants right to jury trial be expressly waived by the defendant in open court (Cal. Const., art. 1, § 16).
As to whether section 1026.5 subdivision (b)(7), prohibits waiver of jury trial through counsel, it is significant that a criminal defendant, who does have a constitutional right to jury trial, does not have a right to personally waive statutory rights to jury trial. As discussed above, even in the criminal context, the California Supreme Court has determined that "[t]he requirement of an express waiver applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. (Vera, supra, 15 Cal.4th at p. 278 . . .; Saunders, supra, 5 Cal.4th at p. 589, fn. 5 . . . .)" (People v. French (2008) 43 Cal.4th 36, 46-47.) It is not at all clear that subdivision (b)(7) of section 1026.5 was intended to cause a personal waiver requirement to attach to the nonconstitutional right to jury trial established by section 1026.5, subdivision (b)(4).
Further, "[a] specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. [Citation.]" (People v. Tanner (1979) 24 Cal.3d 514, 521.) In this case, subdivision (b)(4) of section 1026.5 specifically addresses the right of jury trial and waiver of that right, and it does not expressly require a personal waiver or prohibit waiver through counsel. Presumably, the Legislature knows how to explicitly require a personal jury trial waiver if that is its intent. (See Welf. & Inst. Code, § 1801.5 ["trial shall be by jury unless the right to a jury trial is personally waived by the person"]; cf. Cal. Const., art. 1, § 16 ["A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendants counsel"].) We do not read subdivision (b)(7) as adding, by implication, a personal jury trial waiver requirement.
We are aware that that the Powell court went further than determining that section 1026.5, subdivision (b), did not prevent a named respondent from waiving the right to jury trial through counsel. It also held "that counsel may waive jury trial over objection of his or her client in a `not guilty by reason of insanity commitment extension trial . . . ." (114 Cal.App.4th at p. 1156.) But we need not resolve here whether an attorney may waive jury trial over the objection of a competent respondent named in a section 1026.5, subdivision (b), petition because the record before us does not demonstrate that appellants counsel waived jury trial over appellants objection.
The record does not disclose that appellant expressed any opposition to a court trial, either to his counsel or to the court, before trial actually began. Appellants counsel, who represented him, was present when the case was set for a court trial. On March 5, 2009, when the court announced that the matter was set for a court trial that day, appellant voiced no objection and did not request a jury trial. Appellant has not demonstrated on the record that his counsel waived jury trial over his objection. (See In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant has burden of showing error by an adequate record].) The fact that appellant mentioned jury trial in the context of expressing his desire to leave the courtroom after the court trial had already commenced does not establish that he had previously expressed any objection to a court trial. Moreover, it is well established that once a constitutional right to jury trial has been validly waived, the waiver cannot be withdrawn except in the discretion of the trial court. (See People v. Chambers (1972) 7 Cal.3d 666, 670 [criminal]; Taylor v. Union Pac. R. Corp. (1976) 16 Cal.3d 893, 898 [civil].) The same is presumably true with respect to a wish to withdraw a waiver of a statutory right to jury trial.
Lastly, even were we to assume that section 1026.5, subdivision (b), required a personal jury trial waiver, such right is a mere statutory right and any error in failing to advise appellant of his right to jury trial and to provide a jury trial in the absence of a personal waiver would be reviewed under People v. Watson (1956) 46 Cal.2d 818, 836. (See Cal. Const., art. 6, § 13.) In a case such as this one, where the NGI committee called no witnesses and there is no issue regarding the sufficiency of the evidence, the alleged error in proceeding by court trial without securing a personal jury trial waiver would be harmless under the Watson standard of review. It would not be reasonably probable that a result more favorable to the respondent would have been reached had a jury, rather than the court, been the trier of fact.
C. Constitutional Challenges to Lack of Personal Waiver of Jury Trial
1. Forfeiture Rule
Respondent asserts that appellant forfeited appellate review of his constitutional claims by failing to raise them in the trial court. "The forfeiture rule generally applies in all civil and criminal proceedings. [Citations.]" (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) "The forfeiture doctrine is a `well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.] [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) "`No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, `may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944)." (U.S. v. Olano (1993) 507 U.S. 725, 731 .)
Appellants constitutional claims were not preserved for appeal because he did not object to the court trial on any ground, no less on due process and equal protection grounds. (Cf. People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [defendants new constitutional arguments were not forfeited on appeal because "the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial courts act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution"]; cf. also People v. Partida (2005) 37 Cal.4th 428, 433-439.) In any event, we find his contentions without merit.
2. No Federal Due Process Right to Jury Trial Unless Personally Waived
Appellant argues that his federal constitutional right to due process under the Fourteenth Amendment was violated when his counsel waived jury trial in his absence and over his objection without stating any justification for the waiver and "the trial court made no inquiry and did not provide [him with] an opportunity to be heard." Appellants argument fails both factually and legally.
Appellant also states that the court failed to advise him of the right to jury trial as required by statute. Appellant has not argued or established that he had a due process right, under the Fourteenth Amendment, to be advised of his statutory right to jury trial. Although the court had a statutory obligation to advise appellant of the right to a jury trial (§ 1026.5, subd. (b)(3)), the appellate record does not show that appellant was unaware of his right to a jury trial. A trial courts failure to comply with that statutory obligation requires reversal only if it is reasonably probable a result more favorable to the respondent would have been reached if he had been properly advised. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d 818, 836.) Appellant has not demonstrated any prejudicial error based upon a judicial failure to advise him of the right to jury trial.
As previously discussed, the appellate record does not demonstrate that defendant opposed a court trial before the trial began. We presume on the limited record before us that appellants counsel waived jury trial on appellants behalf and not over his expressed objection. (See Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.)
Moreover, even if we assume that a right to jury trial was not properly waived, the court trial did not constitute an unconstitutional denial of due process. Although "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection[] [citations]" (Addington v. Texas (1979) 441 U.S. 418, 425 ), "due process is flexible and calls for such procedural protections as the particular situation demands." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 .) "[T]he 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, supra, 408 U.S. 471, 488-489, 92 S.Ct. 2593, 2603-2604 . . . [stating the minimum requirements of due process in parole revocation hearings]; McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541-551, 91 S.Ct. 1976, 1984-1989, 29 L.Ed.2d 647 [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, 90 S.Ct. 1886, 1887-1891, 26 L.Ed.2d 437 [the same is true in trials of petty offenses].)" (People v. Tilbury (1991) 54 Cal.3d 56, 69 [due process does not entitle an insanity acquittee to a jury at outpatient-placement hearing; "[j]uries have no more expertise in predicting future dangerousness than judges" and there was "no reason to believe that a jurys decision on outpatient placement would be more reliable than a judges" when "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).)"].)
Although the United States Supreme Court has held that "the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendments guarantee" (Duncan v. State of La. (1968) 391 U.S. 145, 149, fn. omitted ), it has not similarly applied the Seventh Amendment to the states. At least in non-criminal cases, "[t]he Fourteenth Amendment neither implies that all [state] trials must be by jury, nor guarantees any particular form or method of state procedure. [Citation.]" (Hardware Dealers Mut. Fire Ins. Co. of Wis. v. Glidden Co. (1931) 284 U.S. 151, 158 ; see Wagner Electric Mfg. Co. v. Lyndon (1923) 262 U.S. 226, 232 ["deprivation of a right of trial by jury in a state court does not deny the parties due process of law under the federal Constitution"]; see also Southern Ry. Co. v. City of Durham, N.C. (1924) 266 U.S. 178, 179 [in state mandamus proceeding, "[n]either federal laws nor Constitution gave [`plaintiffs in error] the right to demand trial by jury when the local statutes and practice prescribed otherwise"]; Marvin v. Trout (1905) 199 U.S. 212, 222, 226 [civil judgment for recovery of gambling losses based upon Ohios gaming statute did not violate right to due process under the federal Constitution because the state statute failed to provide for or permit a jury trial].) That court has never held that the right to due process under the Fourteenth Amendment to the United States Constitution encompasses a constitutional right to jury trial in state civil actions, no less in special proceedings of a civil nature. (See Gasperini v. Center for Humanities, Inc. (1996) 518 U.S. 415, 432 [Seventh Amendment right to jury trial governs proceedings in federal court but not in state court]; Curtis v. Loether (1974) 415 U.S. 189, 192, fn. 6 [U.S. Supreme Court has not held that "the right to jury trial in civil cases is an element of due process applicable to state courts through the Fourteenth Amendment"].)
The Fourteenth Amendment to the U.S. Constitution prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law." The Seventh Amendment to the U.S. Constitution provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."
It is true that, when protected liberty interests are at stake, the "fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner. [Citations]" (Mathews v. Eldridge (1976) 424 U.S. 319, 333 ; see People v. Litmon (2008) 162 Cal.App.4th 383, 395-396.) But appellant has not cited authority establishing that procedural due process under the Fourteenth Amendment to the United States Constitution necessarily compels a jury trial whenever a persons personal liberty interest is at stake. (Cf. Washington v. Harper (1990) 494 U.S. 210, 233 [procedural due process does not require a full judicial hearing to protect prisoners who possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs; administrative review using medical decisionmakers satisfies due process]; Vitek v. Jones (1980) 445 U.S. 480, 495-496 [prisoners facing involuntary transfer to mental hospital for involuntary psychiatric treatment are threatened with immediate deprivation of liberty interests and are entitled to notice and hearing but "independent decisionmaker conducting the transfer hearing need not come from outside the prison or hospital administration"]; Parham v. J. R. (1979) 442 U.S. 584, 606-607, 613 [minimum requirements of due process owed to minor sought to be committed to mental hospital by parents or guardian are met where procedures include an independent medical decisionmaker with authority to refuse to admit any child not meeting medical standards and independent, periodic reviews of the childs condition; a more formal, judicial-type hearing is not required].) Further, the United States Supreme Court has not equated involuntary commitment proceedings to criminal prosecutions (cf. Addington v. Texas, supra, 441 U.S. 418, 428 [there are "significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions"], 431 ["it is unnecessary to require states to apply the strict, criminal standard"] 433 ["clear and convincing" standard of proof is minimum required by the Fourteenth Amendment to the Constitution in state civil proceeding law to involuntarily commit an individual for an indefinite period to a state mental hospital]) or held that constitutional rights of due process in civil commitment proceedings necessarily require trial by jury (cf. Humphrey v. Cady (1972) 405 U.S. 504, 511, fn. 7 [the court "intimate[d] no view" on question whether there is a right to a jury trial at the initial commitment under Wisconsins Sex Crimes Act]; cf. also McKeiver v. Pennsylvania, supra, 403 U.S. 528, 543 (plur. opn., Blackmun, J.) [jury is not "a necessary component of accurate factfinding"], 545 (plur. opn., Blackmun, J.) ["trial by jury in the juvenile courts adjudicative stage is not a constitutional requirement" of the Fourteenth Amendments due process clause]; People v. Tilbury, supra, 54 Cal.3d at p. 69 ["the involvement of a liberty interest does not by itself implicate the right to a jury"].)
Appellant has cited no authority showing that he was constitutionally entitled under the Fourteenth Amendment to personally waive his statutory right to jury trial. He has not demonstrated that a court trial without his personal waiver of jury trial on the petition for extended commitment deprived him of due process under the federal Constitution.
3. Equal Protection
Appellant maintains that "[a]n interpretation of section 1026.5 (b)(4) that ignores the requirement of personal waiver of jury trial by `the person denies all NGI committees of equal protection of the laws." He argues that "[t]here is no compelling or rational state interest in denying the right to personal waiver of jury trial to NGI committees, while requiring a personal waiver by adult committees facing juvenile extended detention" under Welfare and Institutions Code section 1801.5.
The People maintain that NGI committees subjected to proceedings to extend their commitment (§ 1026.5, subd. (b)) and persons committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) (formerly California Youth Authority) subjected to proceedings to extend detention (Welf. & Inst. Code, § 1800 et seq.) are not similarly situated. The extended detention scheme provides for a jury trial right unless personally waived to persons who, if discharged from the control of the DJF, would be "physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality" that "causes the person to have serious difficulty controlling his or her dangerous behavior." (See Welf & Inst. Code, § 1801.5.)
Effective July 1, 2005, the Department of Youth Authority was renamed "the Department of Corrections and Rehabilitation, Division of Juvenile Facilities." (See Welf. & Inst. Code, § 1703, subd. (c).) As of that date, any reference to the Department of the Youth Authority in any California Code refers to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, § 1710.)
"[N]either the Fourteenth Amendment of the Constitution of the United States nor the California Constitution . . . precludes classification by the Legislature or requires uniform operation of the law with respect to persons who are different." (In re Gary W. (1971) 5 Cal.3d 296, 303.) "`The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530 . . .; People v. Buffington (1999) 74 Cal.App.4th 1149, 1154 . . .; People v. Gibson (1988) 204 Cal.App.3d 1425, 1436 . . . .)" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) "The initial inquiry in any equal protection analysis is whether persons are `similarly situated for purposes of the law challenged. [Citation.]" (In re Lemanuel C. (2007) 41 Cal.4th 33, 47.)
In Lemanuel, supra, 41 Cal.4th 33, an adult juvenile offender contended that equal protection was violated because it is easier to civilly commit juvenile offenders than their adult counterparts subjected to the SVPA (Sexually Violent Predator Act) and the MDOA (Mentally Disordered Offenders Act). (Ibid.) The Supreme Court rejected the claim as follows: "The fact that Youth Authority wards committed under section 1800 and adults committed as SVPs or MDOs are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that `persons committed under Californias various civil commitment statutes are similarly situated in all respects. They are not. [Citation.] Although section 1800 is a civil commitment statute, as are the SVPA and the MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the section 1800 extended detention scheme challenged here." (Id. at p. 48.) It pointed out that the SVP and MDO statutes narrowly target a group of offenders who are labeled based, in part, upon the nature of the underlying conviction while section 1800 et seq. broadly encompasses all youthful offenders without regard to the nature of the underlying conviction. It concluded: "Youth Authority wards are distinctly different from more serious adult offenders who have committed violent or sexually violent crimes. The Legislature may `"adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified." [Citation.] [Citation.] As the Court of Appeal in this case appropriately recognized, `[t]he mere fact that the Legislature has made it more difficult to commit a more serious, adult offender-especially one who faces the stigma of being declared an SVP [or MDO]-does not give rise to an equal protection violation." (Id. at pp. 48-49.)
Here, the mere fact that persons subjected to extended detention under Welfare and Institutions Code section 1800 et seq. and NGI committees subjected to extended commitment under section 1026.5, subdivision (b), are considered dangerous due to mental disorders and subject to extended commitment does not lead to the conclusion that they are similarly situated for purposes of a jury trial waiver. As the People point out, the Legislature might very well have provided a personal-waiver requirement in section 1801.5 because persons adjudicated wards of the juvenile court and committed to the DJF had no right to jury trial and were not found insane. In contrast, appellant is someone whose NGI status was determined only after having a right to a jury trial and suffering an insanity finding. Appellants equal protection contention therefore fails.
Disposition
The March 5, 2009 order of commitment is affirmed.
WE CONCUR.
PREMO, Acting P. J.
McADAMS, J.