Filed 3/21/18 P. v. Clark CA3
NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----







THE PEOPLE,

Plaintiff and Respondent,

v.

ALPHONSO CLARK,

Defendant and Appellant.


C083763

(Super. Ct. No. 98F10531)








Defendant Alphonso Clark appeals from trial court orders extending his commitment to a state hospital on two petitions: one running from January 14, 2015, to January 14, 2017, and the other running from January 14, 2017, to January 14, 2019. (Pen. Code, § 1026.5.) Defendant now contends he did not knowingly and intelligently waive his right to a jury trial on the commitment petitions because he was not advised of the consequences of admitting the petitions. We will affirm the trial court orders.
BACKGROUND
The trial court committed defendant to the Department of Mental Health in 1999 after finding him not guilty by reason of insanity (NGI) of battery on a correctional officer and battery by gassing on a correctional officer. Defendant’s commitment was due to expire on January 14, 2015.
In 2014 the district attorney filed a petition to extend defendant’s commitment from January 14, 2015, to January 14, 2017. Defendant was referred to conditional release (CONREP) programs (in the central valley and then in San Francisco) which filed reports opining that he was not suitable for release into the community.
In 2016, the district attorney filed a petition to extend defendant’s commitment from January 14, 2017, to January 14, 2019; the petition said the prior petition was still pending. An attached report from Napa State Hospital recommended defendant’s retention for treatment. The report gave defendant’s diagnosis as “Bipolar I Disorder, Manic, Severe, with Psychotic Features, in full remission”; “Moderate Amphetamine-type Use Disorder, in full remission, in a Controlled Environment”; “Moderate Cannabis Use Disorder, in full remission, in a Controlled Environment”; “Moderate Cocaine Use Disorder, in full remission, in a Controlled Environment”; and “Antisocial Personality Disorder.” He was currently free of active psychotic symptoms, displayed a “calm and cooperative” demeanor, attended all his core treatment groups, appeared invested in making progress and focused on recovery and relapse prevention, was compliant with medications, followed unit rules and regulations, and got along well with peers and staff; however, he had limited insight into the offense that led to his commitment, which he essentially denied, and he had failed in previous CONREP placements. His risk of violence and serious physical harm was low in the hospital, but moderate without supervision in the community.
The trial court ordered defendant retained for treatment while proceedings on the petitions were underway. Further reports from Napa State Hospital concluded defendant was not yet ready for outpatient release.
At a hearing on December 8, 2016, with defendant present, the prosecutor stated: “[Defendant] has two petitions pending against him at this time, both of which are 1026.5 extension petitions. My understanding is that he is willing to waive his right to a trial on both petitions.
“The first petition that is pending is one that would extend his commitment from January 14th, 2015 to January 14th 2017. My understanding is that he is willing to waive his right to a trial and agree to the extension outright on that petition.
“The second petition that is pending is one that would extend his commitment from January 14th of 2017 to January 14th of 2019. With regard to that, because of the new laws that indicate that he has to be personally present in order to execute waivers of his right to jury trial and agree to the extension, he is going to be also waiving his right and agree to that extension. But on that petition it will be conditional upon him being placed in the ConRep program.
“Both counsel and I are seeking to get him released into outpatient treatment.”
Defense counsel said he concurred and, “[i]f it doesn’t work as far as the recommendation, we’ll be back at trial.” The prosecutor added: “I will be asking for -- for the court to allow him to withdraw his waiver and agreement on the 2017 through 2019 petition, and then we can proceed to trial for that time period.”
The trial court asked defendant if he was “following all this” and if he was “okay with all this.” Defendant answered affirmatively.
The trial court asked if defense counsel wished to voir dire defendant about his right to a jury trial. Counsel replied: “No, I don’t need to do that. [¶] . . . [¶] We’ve discussed all of his rights.”
The trial court then said to defendant: “You understand you have the right to a jury trial on these matters?” Defendant answered: “I have a right to a jury trial. I understand that. From my understanding . . . my professional witness is not going to be available until April. That’s one of the reasons why I’m leaning to withdraw my right to a jury trial. I don’t want to wait in custody anymore longer [sic].”
The trial court asked: “And you understand that at trial you have the right to see, hear, and confront witnesses, have your attorney question them, and put a defense on your behalf?” Defendant said: “Yes, I do.”
The trial court said: “Very well. And you’re willing to waive that jury trial as both counsel have indicated?” Defendant said: “Yes, sir.”
After both counsel joined in the waivers, the trial court signed them. Defense counsel added: “Just so the record is clear, on the second[,] most recent petition it’s a conditional waiver.”
The prosecutor requested a 30-day continuance to refer the matter to CONREP for an evaluation. The trial court granted the request, then placed defendant back at Napa State Hospital and made the referral.
Six days after the December 8 hearing, defendant signed a notice of appeal (filed on December 20, 2016) and also prepared a handwritten request for certificate of probable cause, asserting his attorney never told him he would be agreeing to a court order or that he would be giving up his rights.
At a hearing on January 9, 2017, the trial court said it had received a report dated January 4, 2017. The report, filed by Golden Gate Office CONREP, opined that defendant was not suitable for outpatient release at the time “due to his unwillingness to agree to the terms and conditions of outpatient treatment and ongoing resentments towards CONREP.” The report said defendant’s risk for violence in the community was high without supervision and “moderate-high” even with outpatient supervision, due to his unwillingness to work with CONREP, his lack of a robust support system in the community, his likely refusal to seek treatment on his own, his paranoia, and the ease with which he can become destabilized by everyday stress when out of the structured environment of the hospital.
The trial court denied defendant’s request for a certificate of probable cause, but as the Attorney General acknowledges, a certificate of probable cause is not required in an insanity proceeding. (People v. Wagoner (1979) 89 Cal.App.3d 605, 609-610.)
DISCUSSION
Defendant contends he did not knowingly and intelligently waive his right to jury trial on the commitment petitions because he was not advised of the consequences of admitting the petitions.
Section 1026.5 provides that in a commitment extension proceeding, “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.” (§ 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).) A defendant’s waiver under section 1026.5 must be knowing and voluntary unless substantial evidence shows the defendant lacked the capacity to make such a waiver. (People v. Tran (2015) 61 Cal.4th 1160, 1163.) If it cannot be determined from the record whether the defendant made a knowing and voluntary waiver, the matter must be remanded to the trial court. (Id. at p. 1170.)
Defendant admits the trial court properly obtained defendant’s personal waivers of his right to jury trials. Rather, he claims he was never asked whether he admitted the allegations of the petitions, he was not advised that his involuntary commitment would be extended into 2019, he was not informed that he was losing his right to contest the allegations unless CONREP found him unsuitable for immediate placement on community release, and he was not told that if CONREP initially found him suitable but then subsequently returned him to the state hospital, his commitment extension would remain in place until 2019. Contrary to his assertions, however, the record indicates defendant was informed his commitment would be extended to 2019; and CONREP did not find him suitable for outpatient release. Moreover, although defendant cites cases discussing knowing and voluntary waivers of rights in criminal proceedings (see, e.g., People v. Hoffard (1995) 10 Cal.4th 1170, 1182; People v. Howard (1992) 1 Cal.4th 1132, 1175; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605), he does not explain how those analyses apply in the context of an NGI civil commitment, which as he admits, does not involve punishment. (See Jones v. U.S. (1983) 463 U.S. 354, 367 [77 L.Ed.2d 694, 707]; Addington v. Texas (1979) 441 U.S. 418, 427-431 [60 L.Ed.2d 323, 332-334].) Defendant also cites People v. Tran, supra, 61 Cal.4th 1160, but that case does not address the types of additional advisements defendant argues for in this appeal. Accordingly, defendant has not made a developed argument, supported by authority on point, to support his specific claim. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
In any event, the record shows defendant was informed, and understood, that if he waived jury trials, his commitment would be extended into 2019, but that if CONREP found him unsuitable for the CONREP program, he could withdraw his waiver for the 2017-2019 period and proceed to trial regarding that extension. Defendant appealed before learning that CONREP did not find him suitable for outpatient release, and thus this appeal does not involve whether he can withdraw his waiver for the 2017-2019 period and proceed to trial.
Under the circumstances, the record indicates defendant knowingly and voluntarily waived his right to a jury trial on the commitment petitions.
DISPOSITION
The orders extending defendant’s commitment are affirmed.



/S/
MAURO, J.



We concur:



/S/
BLEASE, Acting P. J.



/S/
RENNER, J.