Superior Court of Orange County, No C47710, Kazuharu Makino, Judge. Court of Appeal, Fourth Appellate District, Division Three, No. G047465.
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Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Mark S. Brown, Assistant Public Defender, and Christopher D. McGibbons, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Real Party in Interest.
[181 Cal.Rptr.3d 749] WEDEGAR, J.
A person found not guilty of a felony by reason of insanity may be committed to a state hospital for a period no longer than the maximum prison sentence for his or her offense or offenses (Pen. Code, § 1026.5, subd. (a)),  but the commitment may be extended if, because of mental disorder, the person " represents a substantial danger" to others ( id., subd. (b)(1)). In the trial of that issue, " [t]he person shall be entitled to the rights [339 P.3d 999] guaranteed under the federal and State Constitutions for criminal proceedings." ( Id., subd. (b)(7).)
The question presented here is whether, in such a commitment extension hearing, the individual facing extended commitment has the right to refuse to take the witness stand. Like the Court of Appeal below, we conclude that by virtue of section 1026.5, subdivision (b)(7), a person facing extended commitment has the right to refuse to testify, a right constitutionally guaranteed criminal defendants.
Charles Hudec, who suffers from paranoid schizophrenia, was found not guilty by reason of insanity of killing his father in 1981 and was committed to a state hospital for a period reflecting the maximum term for voluntary manslaughter. In March 2012, the district attorney filed a petition to extend Hudec's commitment under section 1026.5. The trial court denied Hudec's in limine motion to preclude his compelled testimony as a witness for the
People. On his petition for writ of mandate, the Court of Appeal issued an order to show cause, stayed the trial and, after oral argument, issued the writ, directing the superior court not to compel his testimony. We granted the People's petition for review.
Pursuant to section 1026.5, the district attorney may petition to extend a not guilty by reason of insanity (NGI) commitment for a felony by two years if the person " by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1); see id., subd. (b)(8).) The statute expressly provides the respondent with the rights to an attorney (including a public defender if the person is indigent) and a jury trial, and provides that the rules of discovery in criminal cases apply. ( Id., subd. (b)(3), (4), (7).) Finally, the statute states: " 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." ( Id., subd. (b)(7) (hereafter section 1026.5(b)(7)).)
Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15; Allen v. Illinois (1986) 478 U.S. 364, 368 [92 L.Ed.2d 296, 106 S.Ct. 2988]; Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793] ( Cramer ).) The question here is whether the latter right applies in a commitment extension hearing under section 1026.5.
Courts of Appeal have held commitment extension trials under section 1026.5 to be essentially civil in nature, rather than criminal, because they are directed at confinement [181 Cal.Rptr.3d 750] for treatment rather than punishment. (See People v. Angeletakis (1992) 5 Cal.App.4th 963, 967 [7 Cal.Rptr.2d 377] ( Angeletakis ).) Hudec does not dispute this characterization and does not claim he is constitutionally entitled to refuse to testify.  Rather, he claims a
statutory right not to testify under section 1026.5(b)(7), which incorporates into an extension proceeding " the rights guaranteed under the federal and State Constitutions for criminal proceedings."
The parties each rely principally on a Court of Appeal decision: defendant on People [339 P.3d 1000] v. Haynie (2004) 116 Cal.App.4th 1224 [11 Cal.Rptr.3d 163] ( Haynie ), which read the quoted portion of section 1026.5(b)(7) as providing a commitment extension respondent with the right not to testify at the hearing, and the People on People v. Lopez (2006) 137 Cal.App.4th 1099 [40 Cal.Rptr.3d 789] ( Lopez ), which expressly disagreed with Haynie and held the respondent had no right to refuse to testify. As the Haynie and Lopez courts differed critically in their assessment of prior decisions interpreting section 1026.5 and related statutes, we begin by reviewing the prior decisions and the pertinent statutes' historical development.
I. Statutory and Decisional History
In 1975, this court decided two cases involving the procedures constitutionally required for commitment under the (since repealed) mentally disordered sex offender (MDSO) statutes, Welfare and Institutions Code former sections 6300 to 6332. In People v. Burnick (1975) 14 Cal.3d 306 [121 Cal.Rptr. 488, 535 P.2d 352] ( Burnick ), we held that the due process guarantees of both the United States and California Constitutions required proof beyond a reasonable doubt in order for " the state to publicly brand a man as a mentally disordered sex offender and lock him up for an indeterminate period in a maximum security mental hospital." ( Burnick, supra, at p. 310.) We relied on the United States Supreme Court's decision in Specht v. Patterson (1967) 386 U.S. 605 [18 L.Ed.2d 326, 87 S.Ct. 1209], reasoning that " [i]n light of the fundamental similarity between the sexual psychopath proceedings challenged in Specht and in the case at bar, the question before us is whether proof beyond a reasonable doubt is among the 'full panoply of the relevant protections which due process guarantees in state criminal proceedings,' " a question we then answered affirmatively. ( Burnick, supra, at p. 318.) In a companion case, People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373], we held an MDSO committee was constitutionally entitled to a unanimous jury verdict ( id. at pp. 349-352) and that MDSO's committed to state institutions other than hospitals (because they were deemed not amenable to treatment at a state hospital) could not be confined for an indefinite [181 Cal.Rptr.3d 751] period ( id. at pp. 346, 375-376).
The Legislature responded in 1976 by providing that the term of an MDSO commitment could not exceed the maximum ...