Filed 6/7/13 P. v. Gonzalez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

ALEJANDRO MUNOS GONZALEZ,

Defendant and Appellant.

 H037267

 (Santa Clara County

 Super. Ct. No. CC9945524)

I. STATEMENT OF THE CASE

In 2000, after a bench trial, the court found defendant Alejandro Munos Gonzalez

not guilty by reason of insanity (NGI) of arson and assault and battery and committed 

him to the Department of Mental Health (Department) for treatment at Atascadero State 

Hospital (ASH). (Pen. Code, §§ 451, subd. (d), 242, 243, subd. (a), 1026.5, subd. (a).)1

Defendant appeals from an order extending his commitment until September 9, 2013. He 

claims the court erred in failing to advise him of his right to a jury trial, failing to obtain 

his personal waiver, accepting counsel’s jury waiver, and conducting a bench trial.

We affirm the order.

 

1

 “Technically, once a defendant has been found not guilty by reason of insanity, 

he is no longer a criminal defendant, but a person subject to civil commitment.” (People 

v. Lara (2010) 48 Cal.4th 216, 222, fn. 5.) We shall refer to such persons as defendants 

or NGIs rather than “committees” or “persons committed.”

All unspecified statutory references are to the Penal Code.
2

II. BACKGROUND AND PROCEDURAL HISTORY

On September 2, 1999, defendant poured gasoline on a neighbor’s boat and set it 

on fire. On September 17, he assaulted his mother. On September 19, he threatened to 

kill his sister. According to defendant, he heard voices before these incidents challenging 

and daring him to do something. As noted, he was found NGI and committed to ASH.

In 2003, the Santa Clara Count District Attorney (the District Attorney) sought to 

extend defendant’s NGI commitment. However, on March 12, 2003 before an extension

hearing, defendant was released on outpatient status to Harper Medical Group (Harper) 

under the South Bay Conditional Release Program (CONREP). Four days later, Harper 

asked the court to recommit defendant because he was exhibiting bizarre behavior, and 

shortly thereafter, the court ordered him to Napa State Hospital (NSH) for continued 

treatment. Thereafter, defendant waived his rights to a trial on the petition and agreed to 

an extension of his commitment until March 14, 2005.

In 2004, before the commitment expired, defendant sought release on the ground 

that his sanity had been restored. (§ 1026.2.) The court ordered NSH to evaluate 

defendant. During this time, the District Attorney sought another extension of the 

commitment to March 2007. After evaluating defendant, NSH recommended that his

commitment be extended again. In April 2005, the court held a jury trial on the petition, 

but the jury was unable to reach a verdict, and the court declared a mistrial. The matter 

was not retried because defendant agreed to the extension on condition that he be released 

on outpatient status. 

Thereafter, defendant was placed in a transitional residence for CONREP clients 

called Northstar. In August, 2005, he “decompensated,” and the court ordered a

temporary commitment to NSH. In February 2006, Harper recommended that he be 

returned to Harper, and in March 2006, defendant’s outpatient status was reinstated.

However, defendant again quickly decompensated, becoming delusional, paranoid, 

violent, intimidating, verbally abusive, and threatening. In April 2006, he was 
3

temporarily recommitted to NSH to restabilize. He responded to treatment, and in 

July 2006, he regained outpatient status. 

In a report dated August 2006, CONREP advised the court that defendant was 

stable, controlling his behavior, and motivated to return to the community. He also 

understood the need to deal with his psychiatric problems without resorting to threats and 

intimidation. In November 2006, the court revoked defendant’s outpatient status and 

recommitted him to NSH because he had verbally abused and threatened staff and had 

pretended to start a fire.

Defendant’s commitment under the court’s previous order expired on 

March 14, 2007. On March 22, the court, after a hearing, reconfirmed the previous

revocation of defendant’s outpatient status. In June 2007, defendant petitioned for a writ 

of habeas corpus alleging the wrongful denial of “dignity, respect, and humane care.” 

The District Attorney sought another extension. In August, the court denied defendant’s 

habeas petition. In October 2007, counsel submitted the determination of the extension 

petition on the latest psychological evaluation by NSH. Based on that report, the court 

extended defendant’s commitment to September 9, 2009. 

In January 2009, defendant filed another habeas petition. In March 2009, he also 

sought a determination that his sanity had been restored. At that time, the District 

Attorney sought another extension. On August 26, 2009, defendant personally waived all 

of his rights and admitted that he posed a danger to others if released, and the court 

extended his commitment until September 9, 2011. 

One year later, on September 17, 2010, defendant sought release on outpatient 

status to CONREP but later withdrew his request. It appears that he renewed it in 

February 2011. In April 2011, the District Attorney again sought another extension. On 

April 28, 2011, the court denied defendant’s request for release. On June 24, 2011, 

counsel waived a jury trial on the extension petition, and on August 4, 2011, the court 
4

granted the petition and extended defendant’s commitment to September 9, 2013. As 

noted, defendant appeals from that order.

III. THE EXTENSION HEARING

Dr. James Eyerman, M.D., a psychiatrist at NSH, testified as an expert in the 

diagnosis and treatment of mental disorders and risk assessment. He had been 

defendant’s treating psychiatrist since November 2010. He testified that defendant 

suffered from schizo-affective disorder that caused him to have difficulty controlling his 

dangerous behavior. He also had problems with auditory hallucinations both before and 

after the commitment offense in 1999. Although treatment with medication had helped 

control certain extreme manifestations of defendant’s disorder, lesser manifestations,

including rapid mood swings, delusions, and hyper-religiosity, persisted. Although 

defendant could be pleasant, at other times he was irritable, argumentative, and perhaps 

threatening. These were the primary reasons his previous releases to CONREP were 

revoked. Although defendant understood the need to continue taking medication, Dr. 

Eyerman was not sure how long defendant would do so without some supervision. He 

noted studies revealing that a high percentage of persons stop taking their medication 

after being released from supervision. 

Dr. Eyerman commended defendant for acknowledging that he had a mental 

disorder, understanding the connection between his disorder and his commitment offense, 

and learning to recognize the warning signs of his disorder, including mood swings. 

However, he noted that defendant did not recognize warning signs before becoming upset 

or while he was upset. He had been working on a relapse prevention plan and had 

identified his impulsivity and anger as risk factors. He had also worked on strategies to 

help him recognize these factors so that he would not become aggressive and threatening. 

Although at times, defendant had not acted impulsively when he had gotten angry, he had 

not been able to consistently restrain his impulsivity. Dr. Eyerman noted that within the 

previous 10 months, defendant had been verbally aggressive and threatening to a female 
5

staff member. Moreover, defendant initially felt that his hostility was justified. Only 

later did he acknowledge that his actions had been improper.

Defendant had manifested his mood swings in a pushing incident and in threats of 

self harm, although Dr. Eyerman opined that those incidents might have been caused in 

part by a chemical imbalance related to the mood stabilizing medication defendant had 

been taking. For that reason, his staff began to monitor defendant’s chemical levels 

regularly especially when he seemed particularly irritable. Dr. Eyerman also noted that 

defendant had in the past year been placed on “continuous insight observation”—i.e., 

one-on-one staffing—after an incident in which he “pinned a staff member against a 

wall.” He noted some other incidents in which defendant tried to strip a staff member or 

became hostile toward one staff member and verbally abusive. He later filed a complaint 

against the latter demanding that she stop some unspecified conduct “before I take things 

the wrong way and she ends up on the floor.” 

In all, Dr. Eyerman opined that defendant still had some difficulty with mood 

swings and irritability. Defendant had done well for the last few months, but 

Dr. Eyerman did not find him ready for release even to CONREP on outpatient status. 

He opined that defendant should first demonstrate that he can maintain his behavior for 

six months in his highly supervised and structured locked unit, thereafter in an open unit 

placement, and then on outpatient status before being unconditionally released. 

Dr. Eyerman noted that defendant still had a few months to go before he could become 

eligible for an open unit. 

Defendant acknowledged that he had a mental disorder and will need treatment 

and medication for the rest of his life. He said he intended to continue taking medication 

because without it he cannot act properly. He said that the medication helped him 

channel his energy in a positive way, and he would continue to take it even without 

supervision. He pointed out that he has been avidly participating in numerous groups and 
6

programs, including therapy, AA, NA, sports, relapse prevention, and anger management. 

As a result, he had learned tools to help him cope with aggressive and obnoxious people. 

Defendant acknowledged an incident with a female staff member, although he 

denied pinning her against the wall and said he only pushed her. He could not recall any 

of the other incidents mentioned by Dr. Eyerman. Defendant acknowledged his previous 

unsuccessful releases on outpatient status. However, he said that now he would handle 

himself differently. 

IV. AN NGI COMMITMENT AND EXTENSION

Under the statutory scheme for NGI commitments, a defendant who has been 

committed to a state hospital after being found NGI may not be kept in actual custody 

longer than the maximum state prison term to which he or 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 extension by filing a petition 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).) At that time, the court is 

required to “advise the person named in the petition . . . of the right to a jury trial” 

(§ 1026.5, subd. (b)(3)) and conduct a jury trial “unless waived by both the person and 

the prosecuting attorney” (§ 1026.5, subd. (b)(4)). The person is “entitled to the rights 

guaranteed under the federal and State Constitutions for criminal proceedings,” and all 

proceedings must “be in accordance with applicable constitutional guarantees.” 

(§ 1026.5, subd. (b)(7).)2

 

2

 Section 1026.5, subdivision (b)(3) provides: “When the petition is filed, the 

court shall advise the person named in the petition of the right to be represented by an 

attorney and of the right to a jury trial. The rules of discovery in criminal cases shall 

apply. If the person is being treated in a state hospital when the petition is filed, the court 

shall notify the community program director of the petition and the hearing date.

Section 1026.5, subdivision (b)(4) provides: “The court shall conduct a hearing on 

the petition for extended commitment. The trial shall be by jury unless waived by both 

the person and the prosecuting attorney. The trial shall commence no later than 30 
7

V. CONTENTIONS

Defendant contends that the court committed reversible error in failing to give the 

required advisement and conducting a bench trial without obtaining his personal waiver. 

He argues that a competent NGI is entitled to decide whether to have a jury trial and 

therefore, under section 1026.5, the court must conduct a jury trial unless the jury is 

waived either personally by the NGI or by counsel at the NGI’s direction or with his or 

her knowledge and consent. Citing People v. Powell (2004) 114 Cal.App.4th 1153, 

(Powell), the Attorney General argues that defendant’s personal waiver is not required 

because counsel has exclusive control over whether to have a jury trial. 

VI. DISCUSSION

Recently, in People v. Tran (2013) 216 Cal.App.4th 102 (Tran), this court rejected 

the Attorney General’s claim that under section 1026.5, counsel, not the NGI, controls 

the decision of whether to waive a jury trial. Rather, we concluded that under the statute, 

a competent defendant is entitled to decide whether to waive a jury trial and may do so 

personally or through counsel; however, when the defendant is not sufficiently competent 

to make the decision, he or she must act through counsel, and counsel may waive a jury 

even over the defendant’s objection.

We noted that the statutory language pertinent language in the waiver provision—

“unless waived by both the person and the prosecuting attorney”—does not confer 

exclusive control on counsel; nor does it expressly or implicitly bar NGIs from 

controlling the decision. We further observed that when read together, the advisement 

 

calendar days prior to the time the person would otherwise have been released, unless 

that time is waived by the person or unless good cause is shown.

Section 1026.5, subdivision (b)(7) provides, in relevant 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 state shall be represented by the district attorney who shall notify the 

Attorney General in writing that a case has been referred under this section. If the person 

is indigent, the county public defender or State Public Defender shall be appointed.”
8

and waiver provisions do not reflect a legislative intent to confer such exclusive control. 

Rather, in requiring that the court advise “the person named in the petition” and conduct a 

jury trial unless waived by “the person,” the statute contemplates that NGIs can make the 

decision and expressly provides for them to do so. (Tran, supra, 216 Cal.App.4th at 

p. 125.)

We further reasoned, “that if the Legislature had intended to give counsel 

exclusive control, it could have done so easily and clearly by requiring a jury trial unless 

waived by ‘the person’s attorney’ just as it specified a waiver by the district attorney.’ 

(Cf. § 2966, subd. (b) [requiring hearing within specified time unless waived by 

‘petitioner or his or her counsel’].) Conversely, we doubt the Legislature would have 

clouded such an intent by requiring the court to advise ‘the person’ and further requiring 

a jury trial unless waived by ‘the person.’ ” (Tran, supra, 216 Cal.App.4th at p. 125.) 

We also presumed that the Legislature intended the advisement to perform a meaningful 

and useful function, and noted that if the statute gave counsel exclusive authority, an 

advisement would serve no meaningful function, and there would have been no need to 

make it mandatory. (Ibid.) 

We acknowledged that in People v. Masterson (1994) 8 Cal.4th 965, 974 

(Masterson), the Supreme Court concluded that in a collateral proceeding to determine 

the competency of a criminal defendant to stand trial, counsel had exclusive control over 

the whether to request a jury and may decline to do so over the defendant’s objection. 

(Id. at pp. 971, 973; see § 1368.) We pointed out that the court’s conclusion rested on 

both the specific nature of a competency proceeding, where the defendant necessarily 

plays a lesser role. The court’s conclusion also reflected the view that when a 

defendant’s competency is called into question and must be determined, the defendant is 

assumed to be unable to act in his or her own best interests and must therefore act 

through counsel. (Tran, supra, 216 Cal.App.4th at p. 127.)
9

We noted that more recently in People v. Barrett (2012) 54 Cal.4th 1081 (Barrett), 

the court similarly recognized counsel exclusive authority in proceedings under Welfare 

and Institutions Code § 6500 to involuntarily commit developmentally or intellectually 

disabled persons who pose a danger to others. (Id. at pp. 1104-1105.) There too 

counsel’s exclusive authority derived from the nature of the proceedings. The court 

explained that the statute applies to persons who have significant cognitive and 

intellectual deficits that never recede and affect the ability to make basic decisions about 

the conduct of the proceedings. In other words, it may be assumed that they are unable to 

act in their own best interests and must act through counsel. (Id. at pp. 1103-1104.)

As we explained in Tran, Masterson and Barrett establish that in certain types of 

commitment proceedings, the defendant’s alleged mental state—e.g., incompetency and 

developmental or intellectual disability—renders the defendant unable to make reasoned 

decisions concerning whether to have a jury trial. In other words, it is reasonable to 

categorically assume that such defendants lack the capacity to make a rational choice. 

“For that reason, they must act through counsel, and counsel has exclusive control over 

the jury issue.” (Tran, supra, 216 Cal.App.4th at p. 129.)

Turning to the NGI context, we found it unreasonable to similarly assume that all

NGIs lack the capacity to make a rational decision about whether to have a jury trial. 

(Tran, supra, 216 Cal.App.4th at p. 131.) In this regard, we relied on Barrett, where the 

court carefully distinguished persons who have developmental and intellectual disabilities 

from persons who suffer from a mental disorder, disease, or defect concerning their

capacity to function in a competent manner and, more specifically, comprehend and 

control the jury decision. The Barrett court concluded that unlike persons with 

developmental and intellectual disabilities, many mentally ill persons retain the capacity 

to function in a competent manner, and therefore, their illness does not necessarily imply 

incompetence or a reduced ability to understand and make decisions about the conduct of 

the proceedings against them, such as comprehending an advisement and controlling the 
10

decision to request or waive a jury trial. (Barrett, supra, 54 Cal.4th at pp. 1108-1109; 

Tran, supra, 216 Cal.App.4th at p. 132.)

We found the Attorney General’s reliance on Powell to support to establish 

counsel’s exclusive authority to be misplaced. We noted that in Powell, counsel waived a 

jury, but the defendant objected to counsel’s waiver and requested a jury. At that time, 

however, the defendant was medicated and experiencing mood swings, and when the 

court denied the request, the defendant became so argumentative, belligerent, and 

disruptive that he had to be removed from the courtroom. In upholding counsel’s waiver, 

the court found that the defendant was not competent to waive jury at the extension trial, 

and therefore, counsel was authorized to do so on his behalf. (Powell, supra, 114

Cal.App.4th at pp. 1157-1158; Tran, supra, 216 Cal.App.4th at p. 131.) Thus, as we 

pointed out in Tran, Powell was consistent with—indeed it mirrored—the MastersonBarrett rationale for recognizing counsel’s exclusive control over the jury issue. (Ibid.)

The issue before us now, however, is whether the court committed reversible 

error. The propriety of the bench trial turned on the validity of counsel’s waiver, which, 

in turn, hinged on whether the defendant knew he had the right to a jury trial and directed 

or knowingly consented to counsel’s waiver.

As defendant correctly notes, the record does not reflect that the court gave the 

required advisement. This is understandable because counsel waived defendant’s at the 

pretrial hearing on June 24, 2011, at which time counsel waived a jury trial. However, it

is beyond dispute that counsel was aware of defendant’s right to a jury trial. And where, 

as here, counsel waives an MDO’s presence at pretrial hearings, the court may reasonably 

expect counsel to discuss all pertinent matters that will arise or that have arisen in pretrial 

hearings, including the right to a jury trial and whether to have one. Indeed, “[l]ike all 

lawyers, the court-appointed attorney is obligated to keep her client fully informed about 

the proceedings at hand, to advise the client of his rights, and to vigorously advocate on 

his behalf. [Citations.] The attorney must also refrain from any act or representation that 
11

misleads the court. (Bus. & Prof.Code, § 6068, subd. (d); Rules Prof. Conduct, rule 5–

200(B).)” (In re Conservatorship of Person of John L. (2010) 48 Cal.4th at 131, 151-

152, italics added.) Moreover, absent a showing to the contrary, “[a] reviewing court will 

indulge in a presumption that counsel’s performance fell within the wide range of 

professional competence and that counsel’s actions and inactions can be explained as a 

matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211; 

Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1566; e.g., Conservatorship of 

Mary K. (1991) 234 Cal.App.3d 265, 272 [where no evidence to the contrary, court may 

presume counsel discussed jury waiver with client before waiving on client’s behalf].)

Under the circumstances and in the absence of evidence to the contrary, we may 

presume that counsel discussed the jury issue with defendant. Moreover, the record does 

not suggest that defendant was unaware of his right to a jury trial. On the contrary, as 

noted, this was not the first extension of defendant’s commitment, and he actually had a 

jury trial on an extension in April 2005. When the court declared a mistrial, defendant 

waived his rights and agreed to an extension in exchange for release on outpatient status. 

The record also does not suggest that defendant was unaware that counsel intended 

to waive a jury and had done so or that counsel acted without defendant’s knowledge or 

consent or that defendant wanted a jury trial and objected (or would have objected) to 

counsel’s waiver. Any such inferences would be pure speculation on our part.3

It is settled that on appeal, the appellant bears the burden to affirmatively establish 

error and then demonstrate that it resulted in a miscarriage of justice that requires 

reversal. (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82; Freeman v. Sullivant

 

3

If, in fact, defendant was unaware of his right to a jury trial and would have

opposed or did oppose counsel’s waiver, but the evidence to establish these facts lay 

outside the record on appeal, defendant had the alternative a remedy of habeas corpus to 

challenge his commitment on the ground of ineffective assistance of counsel. (See 

People v. Gray (2005) 37 Cal.4th 168, 211 [claims grounded in facts outside the record 

can be raised by habeas petition]; In re Bower (1985) 38 Cal.3d 865, 872.)
12

(2011) 192 Cal.App.4th 523, 528; Paterno v. State of California (1999) 74 Cal.App.4th 

68, 105-106; Thompson v. Thames (1997) 57 Cal.App.4th 1296, 1308; see 9 Witkin, Cal. 

Procedure (5th ed. 2008) Appeal, § 355, p. 409 [presumption of correctness; “error must 

be affirmatively shown”].)

In short, given the record before us, defendant cannot satisfy his burden to 

establish that he was unaware of the right to a jury trial before counsel waived a jury or 

that counsel’s waiver was invalid.

Furthermore, before any judgment can be reversed for error under state law, it 

must appear that the error complained of “has resulted in a miscarriage of justice.” (Cal. 

Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801.) This means 

that reversal is justified “when the court, ‘after an examination of the entire cause, 

including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the absence of the 

error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)

Here, Dr. Eyerman testified as an expert in diagnosis of mental disorders and risk 

assessment. He was also defendant’s treating psychiatrist. He testified that defendant 

suffered from schizo-affective disorder that caused him to have difficulty controlling his 

dangerous behavior. Although his medication controlled the extreme manifestations of 

his disorder, less extreme manifestations, including rapid mood swings, delusions, and 

hyper-religiosity, persisted, at times, defendant because irritable, argumentative, and 

perhaps threatening to others. Moreover, Dr. Eyerman could not conclude with that 

defendant would continue to take his medication if unconditionally released without any 

supervision.

Dr. Eyerman opined that defendant was not fully able to consistently implement 

the strategies that help him recognize the triggers and warning signs of potential 

aggression and threatening behavior either before becoming upset or while in such a 

state. He noted a number of incidents within the past year in which defendant had been 
13

aggressive and threatening to others and had sent a note that arguably contained a 

threatening comment.

In all, Dr. Eyerman opined that defendant had made commendable progress. 

Nevertheless, he currently posed a risk of harm to others if unconditionally released. He 

recommended that defendant’s commitment be extended so that defendant could establish 

eligibility for placement in an open unit and then for outpatient status. In this regard, we 

note that defendant’s previous releases on outpatient status had been short lived and 

resulted in his recommitment.

Defendant acknowledged his mental illness and the need to take medication for the 

rest of his life and said he intended to do so even without supervision because it helped 

him act properly. Through the various programs he had participated in, he had learned 

how to channel his energy and cope with obnoxious and aggressive people. And 

although he had failed to maintain stability when previously released on outpatient status, 

he asserted that he would now handle himself differently.

Defendant does not suggest that Dr. Eyerman’s informed opinion does not 

constitute substantial evidence supporting the extension order. Nor does his own 

testimony impeach or substantially undermine Dr. Eyerman’s opinion and the bases for it. 

Finally, defendant’s previous record of failure on outpatient status provides compelling 

cause to be concerned about his ability to maintain the ability to control the 

manifestations of his disorder if unconditionally released without any supervision.

Given the record before us, and even assuming that defendant was unaware of his 

right to a jury trial, we do not find it reasonably probable that defendant would have 

obtained a more favorable verdict had the court given the required advisement and 

conducted a jury trial. (People v. Watson, supra, 46 Cal.2d at p. 836; e.g., People v. 
14

Cosgrove (2002) 100 Cal.App.4th 1266, 1276 [denial of statutory right to MDO trial 

harmless].)4

VI. DISPOSITION

The order extending defendant’s commitment is affirmed.

______________________________________

RUSHING, P.J.

I CONCUR:

 

____________________________________

PREMO, J.

 

4 Defendant claims that the federal due process clause guaranteed him the right to 

a jury trial on the petition to extend his NGI commitment. However, the courts in 

Powell, supra, 114 Cal.App.4th at page 1159, and Montoya, supra, 86 Cal.App.4th at 

pages 831-832 rejected claims that a jury trial guaranteed by the due process clause. 

Moreover, in People v. Fuquay (2013) 215 Cal.App.4th 883, this court agreed with 

Powell and Montoya.
ELIA, J., Concurring

I respectfully concur in the judgment on the ground that no reversible error has 

been shown. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) 

We must presume for purposes of this appeal that appellant's counsel informed appellant 

that he was entitled to be tried by a jury and counsel waived a jury trial in accordance 

with appellant's informed consent (see maj. opn., ante, p. 4). (See Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564 [all presumptions are indulged to support a lower court 

judgment or order regarding matters as to which the record is silent; error must be 

affirmatively shown]; see also Conservatorship of John L. (2010) 48 Cal.4th 131, 148

["When 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.]"], 151-152 [attorney is obligated to keep client fully informed of proceedings, 

to advise client of his rights, and to refrain from any act or representation that misleads 

the court].)

Even assuming arguendo that appellant had a constitutional right to a jury trial as a 

matter of due process, the same presumption regarding waiver applies on appeal. (See 

Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Conservatorship of John L., supra, 

48 Cal.4th at pp. 151-152.) To the extent appellant is arguing that he had concomitant 

due process rights, under either the United States or California Constitution, to a judicial 

advisement of his right to a jury trial and to personally waive a jury on the record, his 

arguments are unpersuasive since he was represented by counsel who presumably 

advised and consulted with him and there is no constitutional provision explicitly 

requiring an express, personal waiver of a jury in noncriminal proceedings. (See Cal. 

Const., art. I, § 16; cf. Code Civ. Proc., § 631; People v. Bradford (1997) 14 Cal.4th 

1005, 1052-1053 [in criminal prosecution, no express, personal waiver from a defendant 

is required for waiver of constitutional right to testify; a trial judge may safely assume 

that a nontestifying defendant is abiding by his counsel's trial strategy].)
2

Consequently, it is unnecessary in this case to repeat the majority's conclusions in 

People v. Tran (2013) ___ Cal.App.4th ___ [2013 WL 1881050] regarding the exact 

extent of a counsel's authority to waive a jury for trial on a petition for extended 

commitment pursuant to Penal Code section 1026.5. As the United States Supreme Court 

stated: "The duty of this court, as of every other judicial tribunal, is to decide actual 

controversies by a judgment which can be carried into effect, and not to give opinions 

upon moot questions or abstract propositions, or to declare principles or rules of law 

which cannot affect the matter in issue in the case before it." (Mills v. Green (1895) 159 

U.S. 651, 653 [16 S.Ct. 132]; see Eye Dog Foundation v. State Board of Guide Dogs for 

the Blind (1967) 67 Cal.2d 536, 541.)

_________________________________

ELIA, J.