The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
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Defendant Andrew Brian Watts appeals from an order extending his commitment pursuant to Penal Code sections 1026 and 1026.5.*fn1 He contends that he was denied a jury trial in violation of his due process rights. As we find no violation of defendant's due process rights, we will affirm the commitment extension order.
On December 15, 1980, defendant (then age 24) killed his father by strangulation and dismembered the body with a knife and a machete at his parent's home while he was in an apparent psychotic rage. He then stole his father's van and traveled to Salt Lake City, were he was arrested. He was charged by information filed February 2, 1981, with murder (§ 187; count 1) and vehicle theft (Veh. Code, § 10851; count 2). He was found incompetent to stand trial pursuant to section 1370 and referred to Atascadero State Hospital (Atascadero). After his competency was restored, he was found not guilty by reason of insanity (NGI) of manslaughter (§ 192) and vehicle theft. He was readmitted to Atascadero in 1983. He was released on outpatient status under the care and supervision of South Bay Conditional Release Program (CONREP) in 1989. In 1993, his outpatient status was revoked after he tested positive for cocaine and was non-compliant with treatment. He was separately charged with assault on a peace officer (§ 245, subd. (c)) and battery on a peace officer (§ 243, subd. (c)), found not guilty by reason of insanity, and readmitted to Atascadero.
Defendant was released on outpatient status in both cases in July 1997. His outpatient status was revoked and he was admitted to Napa State Hospital (Napa) in June 2005. Thereafter, defendant's commitment on this case and the assault case (superior court case No. 169048) were periodically extended by the superior court.
The most recent extension of defendant's commitment in this case was set to expire on August 30, 2009. On April 10, 2009, the Acting Medical Director of Napa requested that the district attorney file a petition for extension of defendant's commitment pursuant to sections 1026 and 1026.5. The district attorney filed a petition for defendant's extended commitment on April 21, 2009. After several continuances, jury trial was set for November 30, 2009. On November 13, 2009, at a hearing on a discovery request at which defendant was not present, defendant's appointed counsel waived a jury trial. The November 30, 2009 trial date was vacated and the matter was reset for a court trial on December 3, 2009. On December 3, 2009, defendant requested a Marsden hearing.*fn2
At the Marsden hearing, defendant informed the court that he had asked his counsel for a jury trial and to have an evaluation by an independent psychologist or psychiatrist. "I mentioned I would be willing to spend a couple of months in County jail to see this through, you know, to have my legal rights taken care of, and everything. [¶] And [counsel] felt that it was in my best interest to just stay in Napa. I don't - you know, I realize I might lose my place on my unit. I might lose my bed in the hospital. I am willing to go to court for a jury trial and have, you know, the whole legal process take place so a full view of my rights are being shown."
Counsel informed the court that he had hired the mental health expert that defendant had requested, Dr. Greene, but after reviewing defendant's records Dr. Greene concluded that the case "was not a winner in a court trial or a jury trial." Counsel stated that he would "typically set a case for jury trial if . . . the case is a viable winner in jury trial, in which case it would make sense to set it for jury trial," or if "[t]here is potential upside, in which there is some reward for taking a risk at losing [the defendant's] spot at Napa, . . . possibly decompensat[ing] in county jail and possibly even picking up new charges in county jail." However, Dr. Greene "confirmed there was not an upside to this case. There was no possible gain." Counsel consulted with defendant's prior counsel, who informed him that if defendant spent time in county jail "awaiting jury trial or any trial that this could easily interrupt [defendant's] treatment." Counsel also discussed defendant's case with another mental health expert with knowledge of defendant's case, who agreed that defendant would not gain any benefit by having a jury trial.
Counsel stated: "So I called up Mr. Watts, explained to him why I was waiving the - why I was not going to go to jury trial with this. I probably neglected to tell him I consulted with Dr. Greene, but I did explain to him the reasons why we were going with the court trial. The main reason, there is possibly a down side meaning that's something to lose some work at Napa. [¶] So far as the risk assessment, I don't see any possible gain by going through jury trial. I do see a risk in interruption of treatment. The risk assessment that means don't do the jury trial. [¶] And so that is why I am not doing a jury trial in this case. I am doing it looking towards Mr. Watts'[s] best interests." Counsel also stated that he was ready for a court trial and that he believed "the court trial instead of a jury trial is Mr. Watts'[s] best option. I understand that is not what Mr. Watts wants. But I believe it is the best option."
The court asked defendant if he thought "at any level that [counsel's] reasons for wanting to do a court trial rather than a jury trial makes sense?" Defendant answered, "No." "[H]e works for me. I should be able to say what I want, and he should follow my wishes." Defendant also stated that he wanted to talk to Dr. Greene to "[g]ive me more peace of ...