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Name: People v. Mortimer
Case #: H037530
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/25/2013
Subsequent History: Review granted 8/14/2013: S211072

In an NGI extension proceeding, Penal Code section 1026.5 requires that the court advise the NGI of the right to a jury trial but does not require an NGI’s personal jury trial waiver. These three cases all address the same issue. Defendants Tran, Fuquay, and Mortimer were committed to state hospitals after being found not guilty by reason of insanity (NGI). The district attorney filed separate petitions to extend the defendants’ commitments. The same judge presided over all three cases. Counsel in each case waived a jury and the defendants’ commitments were extending following a bench trial. In separate appeals, each defendant argued that the trial court violated his constitutional and statutory rights by failing to advise him of his right to a jury trial and conducting a bench trial without obtaining his express personal waiver. Held: All three cases affirmed. Prior to recommitment proceedings the trial court is required to advise the committee of his right to jury trial and to conduct a jury trial “unless waived by the person and the district attorney” (Pen. Code, § 1026.5, subd. (b)(3)-(4)). The jury waiver provision of section 1026.5 does not require a personal waiver from the committee or give defense counsel exclusive control. Counsel may waive jury at the direction of the committee or with his consent; when the committee is incompetent to make the determination, counsel may waive jury, even over the committee’s objection. It may be presumed that defense counsel discussed all pertinent matters with the committee and informed him of his rights. The state and federal constitutional rights to a jury trial in criminal cases, which can only be waived by the defendant personally, “do not directly apply in NGI proceedings because they are fundamentally civil, not criminal.” While the trial court erred in conducting a court trial without establishing on the record that the defendants were aware of their jury right, the error was harmless. In Mortimer’s appeal, the court additionally concluded that depriving a defendant of the right to a personal waiver, when compared to a juvenile in a commitment proceeding requiring a personal waiver (Welf. & Inst. Code, § 1800 et seq.), is not a violation of equal protection because the two schemes are enacted with different purposes such that the adult and juvenile are not similarly situated.