Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 205026
Duffy, J.
In 1998, defendant Dawn Quang Tran pleaded not guilty by reason of insanity to one count of lewd or lascivious acts on a child under age 14. (Pen. Code, § 288, subd. (b)(1).) The trial court committed him to a mental hospital with a maximum commitment of eight years under section 1026. In 2005, the court extended defendant’s commitment for an additional two years under section 1026.5, which authorizes extended commitment for treatment of a person found not guilty of a felony by reason of insanity. Defendant ultimately accepted the extension by written waiver.
Further statutory references are to the Penal Code unless otherwise specified.
In 2007, the People sought by petition to again extend defendant’s commitment for an additional two years under section 1026.5. The matter was heard by the court, which found the petition’s allegations to be true and ordered that defendant’s commitment be extended to June 19, 2009. Defendant appeals, contending that he was deprived of a jury trial, which is afforded under section 1026.5, and that there was insufficient evidence demonstrating his physical dangerousness to others, which the statute requires be proven beyond a reasonable doubt in order to extend a commitment. We reject defendant’s contentions and affirm the order.
STATEMENT OF THE CASE
I. Events Preceding Extended Commitment Hearing
Defendant was born in Vietnam in 1964 and came to the United States when he was 17 years old. By 1997, he had experienced a number of disappointing relationships with women in his life “where he had [had] some romance and sexual relations but they seemed to have failed.” And he had spent “a good bit of time in brothels,” having “sex with as many as 500 prostitutes.” Defendant was later described as suffering from “a mental illness” and having experienced “periodic psychotic episodes” in his life though he had at times been “in remission.”
In May 1997, defendant was staying with a family in San Jose that included two children, one of which was a four-year-old girl. He had begun to stay up late, discussing with a friend “deep religious and mystical things, especially black magic.” In the morning of June 18, 1997, he “experienced a light that seemed like an angel which felt like it was cleansing his body” while he showered. He worked that day but he was hearing voices. As he told the father of the family with whom he was living, the voices told him that he had been “given two angels, and there were two children in the home, one for him and one for the father.” That night, defendant “became more and more psychotic.” He led the four-year-old girl whom he believed was his angel “to the bedroom, laid her on the bed and attempted to penetrate her; the little girl was crying and the grandmother came and rescued her.” To the victim’s family, defendant appeared to be “psychotic” that night. He was “delusional” and “experiencing auditory hallucinations.”
Defendant, who had no prior criminal history, was later arrested. While in jail shortly after the offense, he “attempted suicide by taking sleeping pills and stabbing himself.” On June 22, 1997, he was placed in the jail’s psychiatric unit and he “spoke of evil spirits and of voices urging him to kill.” He was “diagnosed as psychotic and delusional.”
In January 1998, defendant was diagnosed as “suffering from a formal thought disorder, most likely schizophrenia.” In May 1998, he was charged by information with lewd or lascivious acts on a child in violation of section 288, subdivision (b)(1). In June 1998, he pleaded not guilty by reason of insanity.
That same month, he was diagnosed after a court-ordered forensic examination with “a blunted form of schizophrenia coupled with periodic episodes of silliness.” He was characterized as “psychotic” and likely to meet “the criterion for legal insanity” in that at the time of his crime, “he was probably incapable of knowing or understanding the nature and quality of his act and of distinguishing right from wrong.”
In July 1998, the parties stipulated that defendant was insane at the time he committed the crime. A court-ordered mental evaluation then recommended that defendant be committed to the “Atascadero State Hospital Trial Competency Program.” The court found him not guilty by reason of insanity and ordered his commitment under section 1026 for an indeterminate period with a maximum commitment of eight years (less credit for time served).
In March 1999, defendant was diagnosed as suffering from “Schizophrenia, Paranoid type” and pedophilia. He was observed to mostly “sit quietly” but he denied his offense and only participated “some of the time in his assigned rehabilitation groups.” He was told that “his inability to talk about [h]is crime [was] a deterrent to his discharge” and he was described as needing to “progress in symptom identification and ability to utilize resources” and as still “mentally ill” and “a danger to the health and safety of others.”
In March 2000, defendant received the same diagnosis of schizophrenia and pedophilia. But his psychiatric condition had “shown improvement” with the help of medication and he had exhibited motivation to participate in treatment groups, aided by a Vietnamese interpreter. He had begun to talk about his offense and show “minimal understanding and insight into his mental illness.” But he still needed “to gain a better understanding of the relationship between his mental illness and his past criminal behavior, and [to] develop a plan of action to prevent reoffense.”
In December 2000, defendant was diagnosed with “Adjustment Disorder with Depression and Psychotic Features in Full Remission” and “Pedophilia.” He was described as having made “steady treatment progress,” having been taken off psychotropic medications but still taking antipsychotic medication. He appeared “more motivated for treatment and much more involved in his treatment groups and in the therapeutic milieu. In the past three months, [he had] acknowledged having a mental illness and its impact on his committing the instant offense. . . . He ha[d] expressed wanting to learn as much as he can . . . before discharge so that he doesn’t reoffend. He still needs to attend his forensic issues group and refine his plan of action to prevent reoffense.”
In July 2001, defendant’s diagnosis remained the same. He had been transferred to an unlocked unit and had attended all of his group sessions, where he was “motivated and cooperative” but needed prompting to participate. He had been “working on his forensic issues” and had acknowledged that he had a mental illness. He had been working on “a relapse prevention plan and [would] continue to refine it as necessary.”
By December 2001, defendant’s diagnosis had been changed to “Psychotic Disorder NOS” and “Pedophilia.” He received the same diagnosis in July 2002. He was then noted to be “cooperative with unit rules.” Although he continued to acknowledge his mental illness, at times he still displayed “a limited understanding of the signs and symptoms of” it. He was also characterized as having “issues with anger.”
His diagnosis remained the same in December 2002. Although he was being housed on an open unit and was usually cooperative with the unit rules, he had begun to have “pressured speech, poor ability to concentrate and would become inappropriately loud. He also seemed agitated and easily upset. He had difficulties sleeping at night. His medications were changed and he [was] responding well to a new anti-psychotic [drug]. [¶] His participation in treatment groups [had] improved” but he continued “to have a very limited understanding of the signs and symptoms of his mental illness. He [was] unable to fully realize the criminal nature of his instant offense and [had] yet to take responsibility for it.”
In June 2003, defendant’s diagnosis of “Psychotic Disorder NOS” and “Pedophilia” remained the same. He had continued to “attend and participate actively in the Sex Offender Treatment Program. His plan to maintain sobriety remain[ed] of some concern, including his plan to buy liquor for friends without any intention to drink with them. He continu[ed] to have a very limited understanding of the signs and symptoms of his mental illness.”
In November of that year, his diagnosis was changed to “BIPOLAR I DISORDER, MOST RECENT EPISODE HYPOMATIC.” By then he had been living on an open unit for three years, he was “cooperative and compliant with the unit rules and policies,” and he was attending “all his required groups and participat[ing] without needing any prompts.” He had been “actively participating in the Phase II Sex Offender Treatment Group.” But he still continued to “suffer from symptoms of hypomania, which include pressure of speech, poor concentration and focus, increased levels of energy and talking loudly.” He also was experiencing “vivid dreams and nightmares” and “some difficulty separating the dreams from reality because of their vividness and his inability to shake the negative feelings from the dreams upon awakening.” Although he had made progress with his mental illness, hospital staff believed that he continued to suffer from “Bipolar Disorder” and would “need to fully complete Sex Offender Treatment and be able to provide a comprehensive relapse prevention plan for both his mental illness and his sexual offense.” Staff continued to maintain that defendant “would be a danger to the health and safety of others, due to a mental defect, disease, or disorder while under supervision and treatment in the community” and that therefore his commitment should be extended “for further treatment.”
Thus, his diagnosis for the first time since 1999 omitted pedophilia.
On the basis of the hospital’s November 2004 report and a similar one the following month requesting that defendant remain committed, in January 2005, the People petitioned to extend defendant’s commitment until June 2007 under section 1026.5.
In March 2005, defendant’s diagnosis remained the same. But he was described as “enthusiastic, friendly, patient and cooperative.” He was experiencing “fewer symptoms of hypomania” and his “vivid dreams and nightmares surrounding his time in Vietnam and his instant offense [had] subsided.” He was able to discuss “his instant offense more congruently to that described in the police report” and “the impact of his crime on the victim and her family” but he was noted to view “his crime as being related to ‘hating God and hating everyone.’ ” He was “not yet able to discuss his future plans and coping skills to prevent future sexual offending relapses.”
In September 2005, after many continuances of the proceeding on the petition to extend his commitment, defendant filed a written waiver of his rights, including for jury trial, and submitted the matter to the court on the petition’s allegations and “the most recent hospital reports.” The court found the allegations to be true and ordered that defendant’s commitment be extended to June 19, 2007.
In November 2005, defendant’s bipolar disorder diagnosis remained the same but it was noted to be in remission. He was, however, also diagnosed with “Polysubstance Dependence.” Assessment of his progress remained positive and he exhibited “great motivation to better understand and to speak English,” a skill that had eluded him in the past, which had contributed to his previous isolation. He was observed not to have “any boundary issues and [was] not threatening or intimidating toward others. However, he show[ed] pronounced excitement and enthusiasm about learning English, learning about the American culture and learning about his mental illness and sexual offending issues. This can readily be misinterpreted by others as frightening and intimidating [because] it may appear that he is crossing one’s personal space. He [was] working on this issue[,] which should not be a barrier for his discharge to the community.” Defendant was noted to have “made significant progress in Phase II Sex Offender Group and was moved to Phase III Group.” He had been “working on future plans and building additional coping skills to prevent future sexual offending relapse.” Defendant’s decision that year “to accept an extension of his maximum term of commitment” was also noted in the evaluation.
In May 2006, defendant’s evaluation was quite similar to the previous one. But it was also noted that there had been “no risk behaviors such as suicide, self-injurious behavior, aggression and falls” and that he was “improving in his ability to be introspective with his thoughts, feelings and behaviors.” He had been “participating in Phase III Group for sex offender treatment” and had been “working on future plans and building additional coping skills to prevent future sexual offending relapse.”
II. Relevant Extended Commitment Proceedings
In March 2007, State Hospital staff again requested that defendant’s commitment be extended under section 1026.5. In response, the People filed a petition, supported by a medical opinion that defendant, “in his present status and condition, by reason of a mental disease, defect or disorder,” represents “ a substantial danger of physical harm to others.”
This opinion, in turn, was supported by an evaluation that repeated much of the immediately preceding evaluation, including defendant’s last diagnosis of “BIPOLAR I DISORDER, MOST RECENT EPISODE HYPOMATIC.” In addition to stating that defendant had then been living on an open unit for the past four years, the evaluation also observed that he had been holding a job “at the Box Factory, which is located outside the Secured Treatment area. His evaluations of his job have been excellent.” Defendant was stated to have “accepted responsibility for his past deviant sexual behavior” and was able to “describe the trauma he inflicted on his victims. He ha[d] been partially able to recognize and correct deviant thoughts that promote sexual offending and [he was] working on this issue in the Phase 3 group. He [was] also developing a comprehensive relapse prevention plan for sex offense which include[d] identifying high risk factors for sexual reoffending.” For the first time, defendant was noted to have “an extensive substance abuse history. He [was attending] weekly support group, Narcotics Anonymous, and [was] monitored for illicit drug use through random urine drug screens. His drug screens [had] all been negative for drugs and alcohol.” Defendant’s mental illness was characterized as being “in good control” and he was observed to be “compliant with his medication yet still has a tendency to speak very fast, move from topic to topic very quickly, and at time[s] becomes tangential (his thoughts become unrelated and [do] not reach a logical goal).”
The evaluation concluded that defendant “suffer[ed] from a serious mental illness and while in a very delusional state, molested a four year old girl. Although he [had] made progress, he [would] need to remain under close supervision to monitor his mental illness [and to] monitor potential substance abuse, both of which can increase his risk of [re]offending.” It was the opinion of the “treatment team that [defendant], by reason of a severe mental disorder, [continued to represent] a substantial danger of physical harm to others.”
The court proceedings to extend defendant’s commitment were set on calendar several times and continued. At a hearing on July 13, 2007, the court minutes state that defendant was not present but that he was represented by counsel, who was present. The minutes also state, “Viet. Interp. ordered for court trial” (italics added) to which defendant was to be physically transported.
Defendant also petitioned for release to outpatient treatment status.
The record does not contain a reporter’s transcript of the July 13, 2007 proceeding.
The proceedings came on for hearing on August 23, 2007, with defendant and his counsel present. The court began by calling the matter for “trial,” which proceeded without objection before the court sitting without a jury. The People called Dr. Margaret Miller, a staff psychiatrist at Napa State Hospital who had been seeing defendant as a patient for the preceding six months. Dr. Miller had reviewed defendant’s psychiatric records as part of her treatment of him. Dr. Miller testified that defendant suffered from “bipolar one disorder,” which is a disorder of the “mood or affect” that causes a person to experience two extremes, either a “manic state or a depressed state.” The goal of treatment “is to get [the patient] into a euthymic or normal state through the use of medications.” Defendant had experienced “manic states, where he’s had pressured speech, racing thoughts, insomnia, poor judgment, hypersexuality, and [he] spun into, for [him], psychosis.”
The court recognized Dr. Miller as an expert in the areas of psychological diagnosis and risk assessment.
Dr. Miller further testified that defendant’s crime was “driven in some part by [his] mental disorder.” She also relayed a psychotic episode that had occurred in February 2007, some six months before the trial. With the money defendant was earning at the box factory, he had begun to “buy a lot of candy, pounds and pounds of candy. . . . And what started to concern the nurses’ staff was that he [was] writing checks for a million dollars.” Dr. Miller saw defendant and it was “clear that he was certainly manic”—speaking “very, very fast,” moving “from subject to subject,” not sleeping, and unable to “hear what [the medical staff was] trying to tell him.” Dr. Miller explained to defendant that she wanted him to take some medication for psychotic mania symptoms and he said, “ ‘Oh, no, you’re going to try to poison me,’ ” which was not consistent with defendant’s usually cooperative behavior. He ultimately agreed to take the medication and after about a week, “he started to settle down and sleep and return to his normal euthymic state.”
Several months later, Dr. Miller met with defendant. She attempted to discuss the February 2007 incident with him and point out that “it was important that he know his warning signs of decompensation, because someday he will be released to the community and must be able to take very good care of himself and know when he is becoming manic.” Defendant responded that he didn’t understand why Dr. Miller was worried and said about the February 2007 incident that he “was trying to make people happy” from which Dr. Miller concluded that he did not have “very much insight to the fact that he had indeed decompensated.”
Dr. Miller further explained to the court that it is critical for a person suffering from bipolar disorder to perceive warning signs, such as “all of a sudden not sleeping well.” When this occurs, the person “should address it quickly and actually see their psychiatrist or other doctor.” Dr. Miller concluded that defendant did not have insight into any of his warning signs—insomnia, speeding thoughts, or other hypomanic symptoms—and that his disorder causes him to have difficulty controlling his behavior, two factors which together rendered him a substantial danger to others if left unsupervised or untreated. She further opined that it was important for defendant to stay on his medications and to “[d]evelop an awareness and a cognitive understanding of what his warning signs are that could lead to the symptoms.”
On cross-examination, Dr. Miller acknowledged that defendant was generally compliant with taking his prescribed medication and that he had made a lot of progress as reflected in previous evaluations, especially in completing Phases 1 and 2 of the sex offender groups. She was not aware of defendant being delusional since his offense and he had not been involved in any physical altercations during his commitment. But the main issue that concerned Dr. Miller was defendant’s remaining need to develop an understanding of what his preliminary warning signs and symptoms of his mental illness were before being released.
Defendant also testified at the hearing. He said that he would take his medications, which make him “stable” and that if he were “feeling sick,” he would talk to a doctor or tell a friend or family member, who could talk to a doctor. Or if he did not “recognize it” or “den[ied] it for [himself],” family members or his friend could support him and talk to him about it.
With regard to the February 2007 incident about which Dr. Miller testified, defendant said that he had felt “overwhelming happiness” but that he now recognized that this was a symptom of his bipolar disorder and that it was a mistake not to have recognized this when it was happening. He said that he was willing to work with any doctor and tried to explain that he was working on recognizing his warning signs that he had missed in the past.
After the parties rested, the court recognized the good things that defendant had done and that he was a hard worker. But the court said that there “still seem[] to be some things that [defendant needed] to work on. Part of it is the signs that [he needs] to be aware of.” The court found the allegations of the petition to be true but told defendant that if he kept working on the things he needed to, he would be granted out-patient status soon. The court’s written order found that defendant, by reason of his mental disease, defect, or disorder, continued to represent a substantial danger of physical harm to others and extended his commitment for an additional two years, to June 19, 2009.
This timely appeal followed.
DISCUSSION
Defendant raises two issues on appeal, which we address in turn after a brief contextual discussion of section 1026.5, which provides for an extended period of commitment of a person previously adjudged not guilty by reason of insanity in the commission of a felony. Defendant’s first contention is that he was deprived of his right to a jury trial under section 1026.5 and his second is that there was insufficient evidence of his dangerousness to others to sustain the order extending his commitment.
Section 1026.5, subdivision (b) provides that a two-year recommitment may be ordered for a person previously adjudged not guilty by reason of insanity where the trier of fact finds that the committee poses a substantial risk of physical harm to others as a result of a mental disease, defect, or disorder. (§ 1026.5, subd. (b)(1).) Upon the filing of the petition by the People in accordance with the statute, the procedural particulars of which are not challenged here, “the court shall advise the [committee] of the right to be represented by an attorney and of the right to a jury trial.” (§ 1026.5, subd. (b)(3).) The trial “shall be by jury unless waived by both the person and the prosecuting attorney.” (§ 1026.5, subd. (b)(4).)
Although the extension proceedings are civil in nature, the “rules of discovery in criminal cases shall apply” and the “person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings,” which “shall be [held] in accordance with applicable constitutional guarantees.” (§ 1026.5, subds. (b)(3) & (7).) If the “court or jury finds” that the committee “represents a substantial danger of physical harm to others” by reason of a “mental disease, defect, or disorder,” the court shall order the [committee] recommitted to the facility in which [he or she] was confined at the time the petition was filed” for an “additional period of two years from the date of termination of the previous commitment, and the person may not be kept in actual custody longer than two years unless another extension of commitment is obtained in accordance with the provisions of this subdivision.” (§ 1026.5, subds. (b)(1) & (8).)
Recent case law has construed section 1026.5 not only in accordance with its express provisions but, in order to satisfy due process considerations, to also require substantial evidence that the committee has “serious difficulty controlling his potentially dangerous behavior.” (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165; accord, People v. Sudar (2007) 158 Cal.App.4th 655, 662-663 (Sudar); People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo (2006) 142 Cal.App.4th 531, 537.) “The requirement of serious difficulty in controlling dangerous behavior ‘serves “to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.” (In re Howard N. (2005) 35 Cal.4th 117, 128, italics added [by Howard N. court].) Quoting Kansas v. Hendricks (1997) 521 U.S. 346, 360, Howard N. explained that a prediction of future dangerousness, coupled with evidence of lack of volitional control, adequately distinguishes between persons who are subject to civil commitment and “ ‘other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.’ ” [Citations.]’ [Citation.]” (Sudar, supra, 158 Cal.App.4th at pp. 662-663.) “[W]e can preserve the constitutionality of [an] extended detention scheme [(there Welf. & Inst. Code, § 1800 et seq. governing extended commitment upon discharge from a Youth Authority commitment)] by simply interpreting the scheme to require not only that a person is ‘physically dangerous to the public because of his or her mental . . . deficiency, disorder, or abnormality,’ but also that the [condition] causes him to have serious difficulty controlling his dangerous behavior.” (Howard N., supra, 35 Cal.4th at p. 135.)
“ ‘Whether a defendant “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others” under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony.’ (People v. Superior Court (Blakely) [(1997)] 60 Cal.App.4th 202, 204-205.) ‘In reviewing the sufficiency of the evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5[, subdivision] (b)(1) beyond a reasonable doubt. [Citations.]’ (People v. McCune (1995) 37 Cal.App.4th 686, 694-695.)” (People v. Crosswhite (2002) 101 Cal.App.4th 494, 507-508.) One psychiatric opinion that a person is dangerous as a result of a mental disorder is sufficient evidence to support the extension of a commitment under section 1026.5. (People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 490 (Williams); People v. Bowers, supra, 145 Cal.App.4th at p. 879.)
II. Defendant Waived His Right to a Jury Trial, a Claim That Has Been Forfeited in Any Event
Before proceeding to the sufficiency-of-the-evidence question, we address defendant’s threshold claim that he was erroneously deprived of a jury trial, which, he contends, constituted structural error that was prejudicial per se, requiring reversal.
The Sixth Amendment of the United States Constitution states in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .” Thus, the federal right to jury trial expressly extends only to criminal prosecutions.
Article I, section 16 of the California Constitution provides: “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict, a jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” Thus, the right to a jury is afforded in this state to both criminal and civil litigants. But a criminal defendant’s right to a jury trial may be waived only by his or her own express consent in open court whereas a civil litigant’s right may be waived as legislatively prescribed.
Code of Civil Procedure section 631, subdivision (d) provides in pertinent part that in civil actions, a trial by jury as guaranteed in the California Constitution may be waived “(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). [¶] (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (c).” (Code Civ. Proc., § 631, subd. (d).)
Although extended commitment proceedings are generally civil in nature, they are distinguished from ordinary civil actions. They are instead special proceedings because they are neither an action at law nor a suit in equity. (Code Civ. Proc., §§ 22 & 23 [actions are ordinary proceedings 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; every other remedy is a special proceeding].) They are initiated by a petition independently of a pending action and are of a character unknown at common law. (People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell).) “ ‘And, in such civil proceedings, unknown to the common law (as distinguished from ordinary civil and criminal cases), the use of a jury is a matter of legislative grant and not of constitutional right. [Citation.]’ [Citations.]” (Rowell, supra, 133 Cal.App.4th at pp. 451-452 [construing right to jury trial in sexually violent predator commitment proceedings].)
Code of Civil Procedure section 631 is located in Part 2 of that code, and Part 2 does not generally extend to a special proceeding unless the statutes establishing the special proceeding expressly incorporate Code of Civil Procedure Part 2 provisions. (Agricultural Labor Relations Board v. Tex-Cal. Land Management Inc. (1987) 43 Cal.3d 696, 707; but see People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128 [given the nature of SVPA proceedings, which are special proceedings, “unless otherwise indicated on the face of the statute, rules of civil procedure will operate”].)
Still, as special proceedings, extension proceedings under section 1026.5, subdivision (b) are essentially considered civil in nature. Such extended commitment is not punitive but is for the purpose of treatment of the individual in an environment in which the community is protected while efforts are made to cure the underlying mental illness. (Williams, supra, 233 Cal.App.3d at p. 485; People v. Angeletakis (1992) 5 Cal.App.4th 963, 968.) Because of the civil nature of the proceedings and the fact that the person has already been found to suffer sufficient impairment to be “insane,” courts have held that section 1026.5, subdivision (b) does not require that all of the criminal constitutional rights be afforded in the same manner as they would in a criminal case. (Williams, supra, 233 Cal.App.3d at pp. 484-485, 487-488; People v. Juarez (1986) 184 Cal.App.3d 570, 575.) Cases construing similar commitment statutes have likewise found that not all criminal law constitutional protections apply to those proceedings. In People v. Otis (1999) 70 Cal.App.4th 1174, 1176-1177, for example, the court determined that counsel could waive a client’s right to a jury trial under the mentally disordered offender (MDO) statute (§ 2960 et seq.). (See also People v. Montoya (2001) 86 Cal.App.4th 825, 829.) The same result was reached in connection with sexually violent predator (SVP) commitments (Welf. & Inst. Code, § 6600 et seq.). (Rowell, supra, 133 Cal.App.4th at pp. 451, 454.)
In People v. Powell (2004) 114 Cal.App.4th 1153, 1157-1159 (Powell), the court considered whether section 1026.5, subdivision (b) required the criminal law constitutional protection of personal waiver of the jury trial right in not-guilty-by-reason-of-insanity extension proceedings. The court addressed the scenario in which defense counsel had waived a jury trial over the client’s objection. The court reviewed the statute and similar commitment schemes and concluded that section 1026.5, subdivision (b) does not require the personal waiver by the defendant client. (Powell, supra, 114 Cal.App.4th at p. 1158.) As the court observed, common sense indicates that persons subject to recommitment under section 1026.5 will uniformly already have been adjudicated as mentally ill to the point of being found not guilty by reason of insanity. Under these circumstances, the tactical reason to seek or waive a jury trial should be left to trial counsel and personal waiver by the client is not necessary despite the statute’s constitutional guarantees.
The court in People v. Givan (2007) 156 Cal.App.4th 405, 409 (Givan), likewise so held, observing that “[c]onspicuous by omission from section 1026.5 is the Legislature’s imposition of any requirement of a personal appearance to waive one’s rights.” The court affirmed that the right to trial by jury at a civil commitment-extension hearing is statutory, not constitutional, and as with the protections of the double jeopardy clause and the ex post facto clause, the requirement of a personal waiver of the right to trial by jury has no application. (Id. at p. 410; Williams, supra, 233 Cal.App.3d at p. 488; Powell, supra, 114 Cal.App.4th at pp. 1157-1158.) The Givan court thus found an implicit waiver of the defendant’s right to a jury trial based on his instruction to counsel to avoid a hearing or a trial in court on extension proceedings, or even the need for him to personally appear to waive his rights to these proceedings. The court concluded that on that record, “a waiver of [defendant’s] right to trial by jury [was] necessarily implicit. ‘We do not deny the right to jury trial for such a person. We only limit the manner in which it may be invoked or waived.’ (Powell supra, 114 Cal.App.4th at p. 1158)” (Givan, supra, 156 Cal.App.4th at p. 411.)
The court in Givan also noted that at the time of its opinion, it had been a year and a half since the defendant’s two-year recommitment and that reversal and remand under those circumstances for a factual determination of whether defendant had waived his jury-trial right would not be the “pragmatic path.” (Givan, supra, 156 Cal.App.4th at p. 411.) Such a course would not effectively “turn back the hands of time” and would “ ‘smack too much of the alleged practice of medieval monks sitting around their cells endlessly debating how many angels could sit on the head of a pin.’ ” (Ibid.) We are dealing with a similar situation here. The order extending defendant’s commitment was entered on August 23, 2007, and his notice of appeal was filed the next day. Yet, after three requests for extensions of time by defendant’s own counsel and three unopposed requests by the People, followed by a request by defendant’s counsel for supplemental briefing on the previously omitted issue relating to the jury-trial waiver, this case was not fully briefed until over a year later when the appellant’s reply brief was filed on September 10, 2008. The case could only then be placed on this court’s conference list the following month with oral argument waived by both sides in late October 2008 and the matter submitted on November 4, 2008. Although the case is not technically moot, this delay in briefing practically affects the issues raised on appeal from a two-year civil-commitment extension order.
Defendant here attempts to distinguish Powell and Givan by his contention that in those cases, although the defendants themselves had not personally waived their right to a jury trial, their respective counsel did in each case whereas here, there was no waiver whatsoever. But a close review of the record reveals, as stated in the clerk’s minutes, that on July 13, 2007, the matter was set for a court trial in which a Vietnamese interpreter was ordered to participate. Although defendant was not present at this hearing, his counsel was. We infer from the specific designation of a court trial in the minutes that the question of a jury trial was raised and that counsel waived this right on defendant’s behalf. Because the appellate record does not include a reporter’s transcript of this hearing that bears out defendant’s contention that his trial counsel never waived his right to a jury trial, he has failed to carry his burden on appeal of demonstrating reversible error. As a basic tenet of appellate review, the lower court’s order enjoys the presumption of correctness and it is an appellant’s burden to procure a record in order to show otherwise. On this record, which suggests a waiver by counsel—whether express or implied—of defendant’s right to a jury trial by the court’s specification of a bench trial in the clerk’s minutes, we view the posture of this case as analogous to Powell and Givan. We agree with those courtsthat neither section 1026.5 nor the nature of extended commitment proceedings following an adjudication of not guilty by reason of insanity require a defendant’s personal waiver of a jury trial. We accordingly conclude on this record that defendant’s statutory right to a jury trial was waived through counsel, whether such waiver was express or implicit, for section 1026.5, subdivision (b) does not require an express jury-trial waiver any more than it does a personal waiver by a defendant himself or herself.
Even if we were to read the record here as lacking any jury-trial waiver whatsoever, we would in any event conclude that defendant’s deprivation-of-a-jury-trial claim has been forfeited for the failure to have raised it below. As defendant concedes, the California Supreme Court has held that a statutory—as opposed to a constitutional—right-to-a-jury-trial claim is subject to forfeiture. (People v. French (2008) 43 Cal.4th 36, 46 (French) [constitutional right to jury trial cannot be forfeited by silence]; People v. Vera (1997) 15 Cal.4th 269, 276-278 (Vera) [failure to object to court trial below forfeits statutory right-to-jury-trial claim on appeal].) We are bound to follow this precedent, as defendant also concedes. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)
But defendant attempts to extract section 1026.5 from the rule in Vera by elevating the source of the statute’s jury-trial right to constitutional status as in French. He points in this regard to the statute’s express provision entitling the committee to “the rights guaranteed under the federal and State Constitutions for criminal proceedings” and to its dictate that the proceedings “shall be [held] in accordance with applicable constitutional guarantees.” (§ 1026.5, subd. (b)(7).) But the statute’s provision of constitutional guarantees cannot elevate the source of those rights from statutory to constitutional. Despite these statutory provisions, their genesis is not constitutional in origin, which is what distinguishes right-to-jury-trial claims that are subject to forfeiture from those that are not. The source of the constitutional guarantees of section 1026.5, including the right to jury trial, remains by statutory grant and the right to a jury trial is thus a claim subject to forfeiture if not preserved below. (Vera, supra, 15 Cal.4th at pp. 276-278.)
Moreover, that section 1026.5, a civil-commitment extension statute, expressly affords some constitutional guarantees does not mean that all constitutional rights afforded to a defendant in a criminal prosecution are mandated. The statutory language merely codifies the application of constitutional protections as determined by case law; it does not extend the full panoply of constitutional protections to the proceedings. (Powell, supra, 114 Cal.App.4th at pp. 1157-1158 [personal waiver of jury trial added to ex post facto, privilege against self-incrimination, and double jeopardy protection as rights not applicable to section 1026.5 proceedings]; Williams, supra, 233 Cal.App.3d at p. 488.)
Defendant not having objected to a court trial, his contention on appeal that he was erroneously deprived of a jury trial has been forfeited.
Concluding as we have that defendant has not demonstrated error with respect to his deprivation-of-a-jury-trial claim and that this claim was forfeited in any event, we need not and do not reach his subsidiary claim that the alleged error is reversible per se and thus not subject to harmless error analysis or his alternative claim that the error was prejudicial.
III. Substantial Evidence Supports the Extended Commitment Order
Defendant contends that although he still suffers from a mental disorder that requires treatment, the record is devoid of evidence that he represented a substantial danger of physical harm to others so as to meet the statutory condition of his extended commitment. He stresses among other things that his psychological evaluations over time demonstrated only steady progress, that he had completed two phases of sex offender treatment, that he had come to recognize his mental illness and the impact of his crime on his victim and her family, that he had become an active participant in group therapy, that he uniformly complied with unit rules and policies, that he had no record of violence while committed, and that he had experienced no incidents of documented delusion—the state he was in when he committed his offense—in the last decade.
With regard to the February 2007 episode about which Dr. Miller testified, defendant argues that buying large amounts of candy and writing checks for extraordinary sums, while unhealthy, do not demonstrate dangerousness or the threat of physical harm to anyone.
He contrasts this record with those in People v. McCune, supra, 37 Cal.App.4th at pages 695-696; People v. Bowers, supra, 145 Cal.App.4th at pages 873-874; and People v. Zapisek, supra, 147 Cal.App.4th at pages 1154-1157, in which the defendants continued to demonstrate dangerousness by reason of various factors and points to the absence of such factors here. He characterizes Dr. Miller’s opinion that his bipolar disorder could present a substantial danger of harm to others if it were left untreated as unsubstantiated because, he urges, there is “no reason to suppose that the illness would be left untreated” if defendant were released from the hospital. And he contends that the medical opinions supporting his dangerousness of physical harm to others are mere conclusions untethered to actual facts about his diagnosed condition or his psychological or behavioral history.
But in his characterization of the record, defendant overlooks Dr. Miller’s pointed concern that the particular danger that defendant presented was his remaining inability to recognize or have insight about his precursors or warning signs signaling oncoming symptoms of his mental illness, despite her largely positive assessment about his improved condition. Without the ability to recognize these warning signs, which defendant acknowledged he had missed just six months before and was still in danger of missing in the future (though he asserted he could rely on family and a friend to point them out to him), defendant could become psychotic and his behavior could spiral into uncontrolled dangerousness if he were not continued to be monitored in the hospital setting. And the February 2007 episode illustrated the reason for Dr. Miller’s concern even though that episode did not itself involve violence or physical danger to others. Defendant had mentally “decompensated” at that point and, according to Dr. Miller, he displayed no awareness of or insight into that fact even after the episodic psychosis had passed and his controlled mental state had been restored with medication.
In determining whether a finding is supported by substantial evidence, we “must view the evidence in a light most favorable to respondent and presume in support of the [order] the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the . . . findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether [the appellate court believes the fact to be found was] established beyond a reasonable doubt.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) As long as any “rational trier of fact could have found the requirements of section 1026.5[, subdivision] (b)(1) beyond a reasonable doubt,” then the findings must be affirmed. (People v. McCune, supra, 37 Cal.App.4th at p. 695.)
We conclude that Dr. Miller’s opinion as to defendant’s dangerousness of physical harm to others constitutes substantial evidence to support the extended commitment order and that the alleged shortcomings of her opinion or its basis went to the weight to be accorded by the trier of fact. (McCarthy v. City of Manhattan Beach (1953) 41 Cal.2d 879, 890 [“Expert testimony is to be given the weight to which it appears in each case to be justly entitled”].) And it is not our function to reweigh the credibility of the evidence adduced at trial. “Given certain facts, predictions of future dangerousness may be rationally projected and the drawing of such an inference is properly within the expertise of a qualified mental health expert like [Dr. Miller].” (People v. Mapp (1983) 150 Cal.App.3d 346, 352.) Under the circumstances of this case, it was well within Dr. Miller’s expertise to conclude that because of defendant’s remaining inability to perceive the warning signs of oncoming symptoms of his mental disorder, he would present a danger of physical harm to others if released. Thus, her opinion was substantial evidence supporting the order and we accordingly reject defendant’s contention to the contrary. (People v. McCune, supra, 37 Cal.App.4th at p. 696.)
DISPOSITION
The order extending defendant’s commitment is affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.