Hudec v. Superior Court

Filed 1/5/15

IN THE SUPREME COURT OF CALIFORNIA

CHARLES HUDEC, )
)
Petitioner, )
) S213003
v. )
) Ct.App. 4/3 G047465
THE SUPERIOR COURT )
OF ORANGE COUNTY, )
) Orange County
Respondent; ) Super. Ct. No. C47710
)
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)

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)),1 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 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

1 All unspecified statutory references are to the Penal Code.
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.
PROCEDURAL BACKGROUND
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.
DISCUSSION
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)).)

2
 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. 1, § 15;
Allen v. Illinois (1986) 478 U.S. 364, 368; Cramer v. Tyars (1979) 23 Cal.3d 131,
137 (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 for treatment rather than punishment. (See People v.
Angeletakis (1992) 5 Cal.App.4th 963, 967 (Angeletakis).) Hudec does not dispute
this characterization and does not claim he is constitutionally entitled to refuse to
testify.2 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 v. Haynie (2004) 116 Cal.App.4th 1224 (Haynie), which read the

2 This court has not addressed the constitutional question as to commitment
extension proceedings under section 1026.5. In Cramer, however, we held an
intellectually disabled person (referred to, at the time, as a mentally retarded
person) faced with commitment under Welfare and Institutions Code former
section 6502 had no constitutional right not to be called as a witness, because of
the essentially civil character of the proceedings, though he did have the right to
refuse to answer potentially incriminating questions. (Cramer, supra, 23 Cal.3d at
pp. 137–138.) The United States Supreme Court reached the same conclusion as
to those faced with commitment under the Illinois Sexually Dangerous Persons
Act. (Allen v. Illinois, supra, 478 U.S. at pp. 368–375.) As far as the decisions
reveal, the statutes at issue in Cramer and Allen did not contain provisions similar
to section 1026.5(b)(7).

3
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 (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 (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, 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, 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

4
treatment at a state hospital) could not be confined for an indefinite 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 aggregate penal term to which the
defendant could have been sentenced. (Stats. 1976, ch. 1101, § 9, p. 4977,
amending Welf. & Inst. Code, former § 6316.) After enactment of the determinate
sentencing law (Stats. 1976, ch. 1139), further revisions to the MDSO law were
made ―to provide additional safeguards against the premature release of dangerous
persons.‖ (Stats. 1977, ch. 164, § 6, p. 638.) Welfare and Institutions Code
former section 6316.2, added by the 1977 legislation, created a standard and
procedure for annual extended commitments beyond the initial maximum term of
commitment set by former section 6316.1. Such an extended commitment could
be made if the person suffered from a mental disorder so predisposing him or her
to commission of sexual offenses as to present a serious threat of harm to others.
(Welf. & Inst. Code, former § 6316.2, subd. (a).)
Under the new 1977 procedure for an extended MDSO commitment, the
rules of criminal discovery applied, the defendant had a right to appointed counsel
if indigent, and trial was by jury unless waived. (Welf. & Inst. Code, former
§ 6316.2, subds. (d), (e), added by Stats. 1977, ch. 164, § 3, p. 634.) Moreover,
the new section provided: ―The patient 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. (e), italics added.) The 1977 MDSO revisions were intended to
―establish[] a practical and reasonable system for extending commitments on a
year-by-year basis for MDSO‘s who continue to be dangerous‖ while making
―provisions for due process‖ and for ―representation of all concerned parties.‖

5
(Health & Welf. Agency, Enrolled Bill Rep. on Sen. Bill No. 1178 (1977–1978
Reg. Sess.) June 29, 1977, p. 2.)
In In re Moye (1978) 22 Cal.3d 457, 467, we held equal protection principles
demanded that initial NGI commitments, like those under the MDSO laws, be
limited to ―the maximum term of punishment for the underlying offense.‖ Relying
on the 1977 amendments to the MDSO scheme, we held initial NGI commitments
must be limited as in Welfare and Institutions Code former section 6316.1 to the
maximum term of penal confinement, but that NGI commitments could be
extended under standards and procedures conforming ―[t]o the extent practicable,
and in the absence of further legislation on the subject,‖ to those in Welfare and
Institutions Code former section 6316.2. (Moye, supra, at p. 467.)
Further legislation was not long in coming. In 1979, the Legislature enacted
Penal Code section 1026.5, limiting initial NGI commitments and providing for
commitment extensions. As in Welfare and Institutions Code former section
6316.2, Penal Code section 1026.5 provides that in commitment extension
proceedings the rules of criminal discovery apply, indigent defendants have the
right to appointed counsel, and trial is by jury unless waived. (§ 1026.5, subd.
(b)(3), (4), (7).) And, in language almost identical to that in Welfare and
Institutions Code former section 6316.2, subdivision (e), the NGI 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.‖ (§ 1026.5(b)(7), italics added.)
Legislative history confirms section 1026.5 was enacted in response to Moye;
as we had held was required by equal protection, the new statute set limits on
initial NGI commitments, while allowing extensions using a standard and
procedures similar to those for MDSO‘s. (Assem. Off. of Research, 3d reading
analysis of Sen. Bill No. 1022 (1979–1980 Reg. Sess.) Sept. 11, 1979, p. 1;
6
Assem. Com. on Crim. Justice, Analysis of Sen. Bill No. 1022 (1979–1980 Reg.
Sess.) as amended July 3, 1979, pp. 1–2.) In an extension hearing under the new
statute, the respondent would have ―full jury trial criminal rights.‖ (Assem. Off.
of Research, 3d reading analysis of Sen. Bill No. 1022 (1979–1980 Reg. Sess.),
Sept. 11, 1979, p. 1.) Describing the commitment extension procedure, another
analysis stated: ―All rights that apply in criminal trials apply for these hearings
(right to counsel, discovery, unanimous jury verdicts, etc.).‖ (Assem. Com. on
Crim. Justice, Analysis of Sen. Bill No. 1022 (1979–1980 Reg. Sess.), as amended
July 3, 1979, p. 2.)
Despite the facially broad language of Welfare and Institutions Code former
section 6316.2, subdivision (e), and Penal Code section 1026.5(b)(7), a series of
appellate decisions has read the statutes more narrowly as incorporating not all,
but only a subset of the constitutional rights enjoyed by criminal defendants.
In People v. Henderson (1981) 117 Cal.App.3d 740 (Henderson), an MDSO
committee claimed the trial court violated his constitutional and statutory rights by
admitting, at his extension hearing, his statements to state hospital staff to the
effect that he was sexually stimulated by violence. The appellate court first
rejected the constitutional self-incrimination claim on the ground that admission of
the statements in an extension hearing could not be incriminatory, since the
proceeding was limited to the issue of the defendant‘s mental disorder and
predisposition to commit sexual offenses and would not result in a penal sanction.
(Id. at pp. 746–747.) Turning to the statutory claim founded on Welfare and
Institutions Code former section 6316.2, subdivision (e), the court read the statute
as not mandating application of the privilege against self-incrimination in the case
before it. ―Subdivision (e) of section 6316.2 codifies the application of
constitutional protections to MDSO proceedings mandated by judicial decision
(see, e.g., People v. Burnick, supra[, 14 Cal.3d 306]; People v. Feagley, supra[, 14
7
Cal.3d 338]). It does not extend the protection of the constitutional privileges
against self-incrimination to testimonial communications which are not
incriminatory.‖ (Henderson, supra, at p. 748.)
People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477 (Williams)
restated Henderson‘s reading and extended it to section 1026.5(b)(7). In holding
that double jeopardy guarantees did not preclude retrial of an NGI commitment
extension petition after reversal of a nonsuit granted by the trial court, the
appellate court rejected the argument that double jeopardy protections were
incorporated by statute into the extension proceeding: ―It is clear . . . that although
many constitutional protections relating to criminal proceedings are available in
extension proceedings, the application of all such protections is not mandated by
section 1026.5. The statutory language merely codifies the application of
constitutional protections to extension hearings mandated by judicial decision. It
does not extend the protection of constitutional provisions which bear no relevant
relationship to the proceedings. (People v. Henderson (1981) 117 Cal.App.3d
740, 748.) . . . [¶] Since, as we have concluded in connection with our discussion
of the constitutional principles, double jeopardy provisions can have no
meaningful application to extension proceedings which are civil in nature, are for
the purpose of treatment not punishment, and are not an adjudication of a criminal
act or offense, we hold that double jeopardy provisions are not applicable to
extension proceedings by virtue of the language of the statute.‖ (Williams, supra,
at p. 488, italics added.)
In People v. Powell (2004) 114 Cal.App.4th 1153 (Powell), the court quoted
and relied on Williams‘s conclusion that section 1026.5(b)(7) ― ‗merely codifies
the application of constitutional protections to extension hearings mandated by
judicial decision.‘ ‖ (Powell, supra, at p. 1158, quoting Williams, supra, 233
Cal.App.3d at p. 488.) Based on that reading and its own sense as to how an
8
extension hearing should be conducted, the court held an NGI extension hearing
respondent did not have the right to be tried by a jury unless personally waived.
―An insane person who is ‗a substantial danger of physical harm to others‘
(§ 1026.5, subd. (b)(1)) should not be able to veto the informed tactical decision of
counsel. . . . [¶] Appellant has twice been adjudged to be insane and state hospital
doctors have never indicated that he has regained his sanity. He seeks release so
that he can kill people. . . . [¶] Common sense dictates that appellant should not be
able to veto his attorney‘s decision to waive jury.‖ (Powell, supra, at p. 1158; see
Angeletakis, supra, 5 Cal.App.4th 963, 969–971 [following Williams to hold
respondent under § 1026.5 has no right not to be tried while mentally
incompetent].)
Haynie, supra, 116 Cal.App.4th 1224, which as here dealt with the right not
to be called as a witness, broke the chain of narrow interpretations. Over Haynie‘s
objection, the prosecution in his commitment extension hearing was permitted to
call him in its case-in-chief; on appeal, he contended he should not have been
compelled to testify. The Haynie court agreed under the authority of section
1026.5(b)(7). (Haynie, at pp. 1227–1230.)
Haynie relied primarily on the statute‘s plain language, reasoning: ―Here, the
Legislature‘s words clearly and unambiguously state the person ‗is entitled to the
rights guaranteed under the federal and State Constitutions for criminal
proceedings.‘ A defendant in a criminal matter has an absolute right not to be
called as a witness and not to testify. (U.S. Const., 5th Amend.; Cal. Const., art. I,
§ 15; Evid. Code, § 930.) Under the plain language of the statute, because Haynie
is entitled to the same rights guaranteed to a criminal defendant, he should not
have been compelled to testify in the prosecution‘s case at his commitment
extension trial.‖ (Haynie, supra, 116 Cal.App.4th at p. 1228.)

9
 Reviewing the narrowing decisions discussed above, Haynie expressed
agreement with Williams that ―the statutory language of section 1026.5 does not
extend the ‗protection of constitutional provisions which bear no relevant
relationship to the proceedings‘ ‖ (Haynie, supra, 116 Cal.App.4th at p. 1229), but
disagreed with Williams‘s ―broad statement . . . that the statutory language ‗merely
codifies the application of constitutional protections to extension hearings
mandated by judicial decision‘ ‖ (Haynie, at p. 1230). That interpretation, Haynie
reasoned, renders the statutory grant of rights superfluous and ―supplants the
legislative rights-inclusive language with a process whereby judges select which
rights will apply.‖ (Ibid.)
On the application of section 1026.5(b)(7) to the issue of compelled
testimony in an extension hearing, Haynie concluded the right not to testify is
―clearly and relevantly implicated when a person is called by the state to testify in
a proceeding to recommit him or her even if what is said on the witness stand is
not per se incriminating.‖ (Haynie, supra, 116 Cal.App.4th at p. 1230.) Unable to
find the respondent‘s compelled testimony was harmless in the extension hearing,
the appellate court reversed the commitment extension order. (Id. at pp. 1230–
1231; cf. In re Luis C. (2004) 116 Cal.App.4th 1397, 1402–1403 [applying Haynie
to extension of a juvenile commitment under Welf. & Inst. Code § 1801.5, which
provides that the juvenile ―shall be entitled to all rights guaranteed under the
federal and state constitutions in criminal proceedings‖]; accord, Joshua D. v.
Superior Court (2007) 157 Cal.App.4th 549, 558–562 (Joshua D.).)
This brings us to Lopez, supra, 137 Cal.App.4th 1099, on which the People
principally rely. In Lopez, the issue of an NGI extension defendant‘s right not to
testify arose only indirectly; at issue was not an NGI extension but rather a petition
for recommitment under the Mentally Disordered Offender (MDO) law.
(§§ 2960–2981; see § 2972 [procedure for hearing on recommitment].) The
10
defendant argued that the admission of his testimony at the recommitment hearing
denied him equal protection of the law because, under the statutes construed in
Haynie and Luis C., respondents in NGI and juvenile commitment extension cases
could not be compelled to testify. (Lopez, supra, at pp. 1105–1106.)
The Lopez court rejected the equal protection claim by disagreeing with
Haynie and Luis C. on their interpretations of the NGI and juvenile commitment
statutes. Lopez criticized Haynie for not sufficiently addressing Henderson‘s
holding that admission of an MDSO defendant‘s statements did not violate his
rights under Welfare and Institutions Code former section 6316.2, subdivision (e).
(Lopez, supra, 137 Cal.App.4th at pp. 1110–1111.) Haynie, the Lopez court
asserted, failed to account for the fact ―that Henderson had concluded identical
language to that found in section 1026.5(b)(7) did not grant a committee the self-
incrimination privilege enjoyed by a criminal defendant.‖ (Lopez, supra, at p.
1111.)
Lopez also faulted Haynie for an assertedly contradictory approach to the
plain language of section 1026.5(b)(7). On the one hand, Lopez noted, Haynie
relied on the statute‘s clear and unambiguous language providing an NGI
extension respondent the constitutional rights of a criminal defendant; on the other
hand, Haynie agreed with Williams that that language did not include rights with
no ―relevant relationship‖ to commitment proceedings. (Lopez, supra, 137
Cal.App.4th at p. 1115.) ―However, if the [Haynie] court actually meant to apply
section 1026.5(b)(7) literally, it should not have engaged in any further analysis‖
beyond applying the statute‘s plain language. (Ibid.)
Having accepted Williams‘s ―nonliteral‖ reading of section 1026.5(b)(7),
Lopez went on to conclude the right not to testify has no relevant relationship to
NGI commitment extension proceedings because, like other civil commitment
proceedings, they ―are not criminal proceedings, do not involve adjudication of
11
guilt, and do not result in punishment.‖ (Lopez, supra, 137 Cal.App.4th at p.
1116.) For this aspect of its reasoning, Lopez relied mainly on our decision in
Cramer, supra, 23 Cal.3d 131, that intellectually disabled persons facing
commitment had no constitutional right to refuse to testify. (Lopez, supra, at p.
1116.)

II. Analysis
The Court of Appeal below, agreeing with Haynie, rested its decision
primarily on the language of section 1026.5(b)(7), which it found unambiguously
provided commitment extension respondents the right not to testify. The court
criticized Lopez for ―lean[ing] heavily on policy arguments, with scant attention to
the statutory language.‖ Hudec, similarly, argues the language of section
1026.5(b)(7) is clear, its application to the present facts ―is not repugnant to the
general purview of the act, and there is no compelling reason to disregard the plain
language.‖ The People argue the lower court‘s ―literal interpretation of section
1026.5(b)(7) would produce absurd consequences‖ and that Lopez correctly
applied Williams‘s ―relevant relationship‖ standard to determine the statute
afforded respondents no right to refuse to testify.
We agree with Hudec and the Court of Appeal below that a respondent has a
statutory right not to testify at his or her NGI commitment extension hearing. On
its face, the language of section 1026.5(b)(7) provides respondents in commitment
extension hearings the rights constitutionally enjoyed by criminal defendants. One
of those rights is the right to refuse to testify in the prosecution‘s case-in-chief.
(Allen v. Illinois, supra, 478 U.S. at p. 368.) And while the appellate courts have
posited a number of restrictions on the rights included under section 1026.5(b)(7),
we find none of those possible restrictions justifies excluding the right not to
testify against oneself.

12
 Although Penal Code section 1026.5(b)(7) does not expressly grant NGI
extension respondents ―all‖ the rights of a criminal defendant, as Welfare and
Institutions Code section 1801.5 does for juveniles in extension hearings, it uses
similarly unqualified language. As the appellate court below put it, ―Here, the
Legislature bestowed upon potential committees ‗the rights guaranteed under the
federal and State Constitutions for criminal proceedings,‘ not ‗some of the rights,‘
or ‗the due process rights required by judicial decision in commitment extension
proceedings.‘ ‖ Used as a definite article, ―the‖ has a specifying or particularizing
function. (Random House Dict. of the English Language (2d ed. 1987) p. 1965.)
Here, it serves to specify a set of rights—those constitutionally guaranteed in
criminal proceedings—but it does not imply or suggest any further limitation
within that designated set. In this context, ―the‖ can be read as equivalent to ―all.‖
Despite this apparent clarity, interpreting section 1026.5(b)(7) poses a degree
of inherent difficulty. By its terms, the statute in effect commands a translation or
transposition of procedural rights from the criminal context to the noncriminal,
contexts sufficiently different to raise a question of its interpretation. That the
appellate courts have struggled to delineate the set of criminal trial rights the
statute incorporates into a commitment extension hearing is not surprising.
In a potentially sweeping restriction, the Lopez court appeared to read section
1026.5(b)(7) as excluding all rights constitutionally originating in or tied to
criminal proceedings. Lopez reasoned that because the right of a defendant not to
testify serves constitutionally to maintain the accusatorial (as opposed to
inquisitorial) character of ― ‗the criminal justice system‘ ‖ (Lopez, supra, 137
Cal.App.4th at p. 1116, quoting Cramer, supra, 23 Cal.3d at p. 137), and NGI
commitment extension hearings are not criminal proceedings, the right not to
testify is irrelevant and inapplicable in a section 1026.5 hearing. (Lopez, supra, at
pp. 1115–1116.)
13
 Lopez‘s analysis is contrary to the statutory language and history. In
granting NGI commitment extension respondents ―the rights guaranteed under the
federal and State Constitutions for criminal proceedings‖ (§ 1026.5(b)(7)), the
Legislature could not have meant to exclude all rights whose application is
constitutionally mandated in the criminal justice system; the result would render
the statutory provision a nullity. Historically, Lopez‘s premise that constitutional
rights originating in the criminal context are excluded from the statutory grant
clashes with the statute‘s origins as a response to Burnick and Feagley, which
likened involuntary commitment proceedings under the MDSO law to criminal
prosecutions, and to Moye, which extended the resulting MDSO procedural
protections to NGI committees. Lopez clashes as well as with legislative history
indicating the new law would provide respondents ―full jury trial criminal rights‖
(Assem. Off. of Research, 3d reading analysis of Sen. Bill No. 1022 (1979–1980
Reg. Sess.) Sept. 11, 1979, p. 1), including ―[a]ll rights that apply in criminal trials
. . . (right to counsel, discovery, unanimous jury verdicts, etc.)‖ (Assem. Com. on
Crim. Justice, Analysis of Sen. Bill No. 1022 (1979–1980 Reg. Sess.) as amended
July 3, 1979, p. 2).
Almost as restrictive in effect is the Williams court‘s assertion that section
1026.5(b)(7) ―merely codifies the application of constitutional protections to
extension hearings mandated by judicial decision.‖ (Williams, supra, 233
Cal.App.3d at p. 488.) For this construction, Williams cited only Henderson,
supra, 117 Cal.App.3d at page 748. But Henderson, construing the virtually
identical language of Welfare and Institutions Code former section 6316.2,
subdivision (e), does not stand for the principle that this language refers only to
those constitutional rights specifically mandated for MDSO‘s by judicial decision.
Henderson observed that Welfare and Institutions Code former section 6316.2,
subdivision (e) ―codifies‖ the mandates of Burnick and Feagley, not that it merely
14
codified those decisions. (Henderson, supra, at p. 748.) The court then
concluded, somewhat tautologically, that the statute did not extend the privilege
against self-incrimination to communications ―which are not incriminatory.‖
(Ibid.) Henderson did not articulate a sweeping restriction of the type for which
the Williams court cited it. (See Joshua D., supra, 157 Cal.App.4th at p. 561
[―The court in Henderson concluded simply that the asserted privilege against
self-incrimination did not apply to the defendant‘s communications with hospital
staff in that case because they were not inculpatory.‖].)
Williams‘s construction of section 1026.5(b)(7) as merely codifying judicial
decisions applying constitutional rights piecemeal is not only unsupported by
Henderson, the only authority cited, but is also contrary to the legislative intent
evident in the statutory language. As observed in Haynie, supra, 116 Cal.App.4th
at page 1230, ―if the courts have granted rights to committees under case law,
there is no need for the statutory declaration of rights—it is surplusage.‖ Such a
construction is, of course, to be avoided if possible (People v. Hudson (2006) 38
Cal.4th 1002, 1010), and nothing in the statute‘s history suggests the Legislature
intended mere codification of judicial decisions. In enacting Welfare and
Institutions Code former section 6316.2, subdivision (e), and then Penal Code
section 1026.5(b)(7), the Legislature was, to be sure, responding to decisions from
this court recognizing constitutional due process protections for certain classes of
involuntary committees. But in providing broadly that in both MDSO and NGI
commitment extensions the individual would have ―the rights guaranteed under
the federal and State Constitutions for criminal proceedings.‖ (§ 1026.5, subd.
(b)(7); Welf. & Inst. Code, former § 6316.2, subd. (e)), the Legislature chose not
merely to codify the particular rights mandated by Burnick, Feagley and Moye—
limited commitment terms, proof beyond a reasonable doubt, and a unanimous

15
jury verdict—but rather to state a broader rule that MDSO and NGI commitments
call for procedural protections otherwise applicable in criminal cases.3
The People contend a literal reading of section 1026.5(b)(7) would have
absurd results. We may, of course, reject a literal statutory construction where it
would result in absurd consequences the Legislature could not have intended.
(People v. Leiva (2013) 56 Cal.4th 498, 506; Simpson Strong-Tie Co., Inc. v. Gore
(2010) 49 Cal.4th 12, 27.) Where a right applicable in criminal proceedings
cannot logically be provided within the framework of an NGI commitment
extension hearing, we might infer the Legislature could not have meant for section
1026.5(b)(7) to encompass it.
A possible example of this type of absurdity is the right not to be tried while
mentally incompetent. If a section 1026.5 extension hearing could not proceed
until any doubts about the respondent‘s competence were resolved, the issue of an
NGI respondent‘s continuing mental illness, central to the hearing under section
1026.5, subdivision (b)(1), would tend to be subsumed within nonstatutory
proceedings on mental competence, and the hearing called for by section 1026.5
could be indefinitely delayed. (Cf. Moore v. Superior Court (2010) 50 Cal.4th
802, 808 [declining to recognize a due process competence right for Sexually
Violent Predator Act defendants in part because such a right ―could prevent an
SVP determination from being made at all‖]; see Angeletakis, supra, 5
Cal.App.4th at pp. 970–971 [§ 1026.5(b)(7) does not incorporate right not to be

3 Powell and Angeletakis thus erred in relying on Williams‘s interpretation of
section 1026.5(b)(7), as merely codifying judicial decisions holding certain rights
applicable in commitment extension hearings. (Powell, supra, 114 Cal.App.4th at
pp. 1157–1158; Angeletakis, supra, 5 Cal.App.4th at p. 970.) We disapprove
People v. Superior Court (Williams), supra, 233 Cal.App.3d 477, People v.
Powell, supra, 114 Cal.App.4th 1153, and People v. Angeletakis, supra, 5
Cal.App.4th 963, to this extent.

16
tried while incompetent].) Arguably, the Legislature did not intend to create such
a contradictory set of procedures by its grant of rights in section 1026.5(b)(7).
No such inconsistency or absurdity is involved, however, in an NGI
commitment extension respondent‘s exercise of the right to refuse to testify. No
nonstatutory procedures need be contrived to implement this right, and its
recognition will not tend to prevent a section 1026.5 proceeding from going
forward. The prosecution in an extension hearing does not typically depend solely
on the respondent‘s testimony; before an NGI extension petition can even come to
hearing, the prosecution must submit affidavits providing a factual basis to support
the findings required for extension. (§ 1026.5, subd. (b)(2).) In the present case,
the prosecution, according to its trial brief, intends to meet its burden of proof in
part through the testimony of both mental health professionals who have treated
Hudec and a psychologist appointed to evaluate him. In Haynie, the respondent‘s
―treating psychiatrists testified he suffered from a major schizo-affective disorder,
bipolar type. The disorder made him dangerous because during his manic phases,
which were chronic, he was irritable, angry, and paranoid.‖ (Haynie, supra, 116
Cal.App.4th at p. 1227; see also Lopez, supra, 137 Cal.App.4th at pp. 1103–1104
[similar testimony from treating physicians].) Recognizing that NGI commitment
extension respondents may refuse to testify will deprive the prosecution in some
cases of desired evidence, but it will not as a general matter preclude section
1026.5 extensions. Interpreting section 1026.5(b)(7) to include the right not to
testify does not result in absurd consequences.
Beyond the possibility of absurd consequences from a literal construction,
the People argue for the idea, first posited in Williams, that constitutional rights
bearing no ―relevant relationship‖ to commitment extension proceedings are not
included in the granting language of section 1026.5(b)(7) and Welfare and
Institutions Code former section 6316.2, subdivision (e). (Williams, supra, 233
17
Cal.App.3d at p. 488.) What the Williams court exactly meant by ―relevant
relationship‖ is not clear, but the court appeared to use the phrase synonymously
with ―meaningful application.‖ (See ibid.) Williams reasoned that because section
1026.5 extension proceedings ―are not an adjudication of a criminal act or
offense,‖ the first commitment extension hearing in Williams never placed the
respondent in jeopardy of penal liability; double jeopardy protections therefore
had no ―meaningful application‖ to such proceedings. (Williams, supra, 233
Cal.App.3d at p. 488; see also id. at p. 487.)
Whether or not this reasoning justified the result in Williams, a question we
do not face here, the same logic does not serve in this case. The right not to testify
in a proceeding where one is a defendant is a right that could meaningfully apply
in any type of adversarial proceeding, though only in criminal cases is it
constitutionally guaranteed. In contrast to double jeopardy protections as they
were viewed in Williams, the right not to testify does not take its very meaning
from the criminal context, nor does applying it when the prosecution seeks to
compel the respondent‘s testimony in an NGI commitment extension hearing
present any logical difficulty. As the Haynie court concluded, ―The right to not be
compelled to testify against oneself is clearly and relevantly implicated when a
person is called by the state to testify in a proceeding to recommit him or her even
if what is said on the witness stand is not per se incriminating.‖ (Haynie, supra,
116 Cal.App.4th at p. 1230.) Again, no grounds exist to find on this basis that the
Legislature did not intend the right to refuse to testify to be included in section
1026.5(b)(7)‘s broad grant.
Arguing against the existence of a relevant relationship between the right not
to testify and section 1026.5 hearings, the People assert ―the ability to hear and
observe the person‘s testimony in a civil commitment hearing is particularly
helpful‖ in determining his or her mental condition. As the People observe, in
18
Cramer, supra, 23 Cal.3d at page 139, we relied on similar considerations to
conclude that those faced with commitment as intellectually disabled persons who
pose a danger to themselves or others had no constitutional right to refuse to
testify. But Cramer‘s constitutional reasoning has no bearing on the interpretation
of section 1026.5(b)(7). Granting that trial accuracy considerations arguably
support compelling a committee‘s testimony, other considerations could be viewed
as militating against such compulsion, notably ―our sense of fair play which
dictates ‗a fair state-individual balance by requiring the government . . . in its
contest with the individual to shoulder the entire load.‘ ‖ (Murphy v. Waterfront
Comm’n. (1964) 378 U.S. 52, 55.) The structure of a commitment extension
hearing under section 1026.5, including the choice to grant commitment extension
respondents full criminal trial rights, reflects a legislative effort to prescribe
procedures fair to both the respondent and the People. The Legislature having
made that set of policy choices in section 1026.5(b)(7), and there being no claim
the statute is itself unconstitutional, it is not for the courts to reweigh the
competing considerations. (See Joshua D., supra, 157 Cal.App.4th at p. 565.)
Finally, the People contend Lopez correctly relied on Conservatorship of
Bones (1987) 189 Cal.App.3d 1010 (Bones), which held a person facing
confinement for involuntary treatment under certain provisions of the Lanterman-
Petris-Short Act (Welf. & Inst. Code, §§ 5000–5550) does not have a statutory
right to refuse to testify despite a statutory command that the proceedings are to be
conducted ― ‗in accordance with constitutional guarantees of due process of law
and the procedures required under Section 13 of Article 1 of the Constitution of
the State of California‘ [Welf. & Inst. Code, § 5303].‖ (Bones, supra, at p. 1016;
see Lopez, supra, 137 Cal.App.4th at pp. 1112–1113.)
Tracing the references in Welfare and Institutions Code section 5303, Bones
explained that while at the time that statute was enacted, article I, section 13 of our
19
state Constitution included the freedom from compelled testimony against oneself
in a criminal case (along with due process and double jeopardy protections),
section 13 had since been repealed and the self-incrimination guarantee placed in
section 15 of the same article, while the due process guarantee went to section 7,
subdivision (a) of that article. (Bones, supra, 189 Cal.App.3d at p. 1016.) Bones
observed that this court in Burnick, supra, 14 Cal.3d 306, had cited section 7,
subdivision (a) in a bracketed reference,4 and inferred from that reference we
believed Welfare and Institutions Code section 5303‘s reference was to due
process alone and hence ―the effect of section 5303 is merely to emphasize the
applicability of due process principles and not to incorporate the whole panoply of
criminal defense rights.‖ (Bones, supra, at p. 1016.) Adopting Bones‘s analysis of
Burnick‘s bracketed reference, the Lopez court inferred the Legislature acted with
the same limited intent in enacting section 1026.5(b)(7), that is, merely to grant by
statute the same due process rights constitutionally guaranteed to NGI extension
respondents. (Lopez, supra, 137 Cal.App.4th at pp. 1113–1114.)
We have already explained the conflicts between this construction of section
1026.5(b)(7) as a mere codification of due process principles and the statute‘s

4
In Burnick, addressing whether due process requires application of a
heightened standard of proof to involuntary commitment hearings under the
MDSO law, we made this comparison in a footnote: ―Similarly, the Legislature
has not specified the standard of proof for involuntary commitment of persons
under our general mental health law (Welf. & Inst. Code, § 5000 et seq., known as
the Lanterman-Petris-Short Act), but has provided that such proceedings shall be
conducted ‗in accordance with constitutional guarantees of due process of law and
the procedures required under Section 13 [now § 7, subd. (a)] of Article 1 of the
Constitution of the State of California.‘ (§ 5303.) As in the case at bar, it will be
for the courts to decide which standard of proof is necessary to comport with those
‗guarantees and procedures‘ in view of the consequences to the individual of a
commitment under the Lanterman-Petris-Short Act.‖ (Burnick, supra, 14 Cal.3d
at p. 314, fn. 5.)

20
language and history, and Bones does nothing to shake our conclusion it must be
rejected. Bones‘s reading of our citation in Burnick as a subtle, cryptic dictum
limiting the scope of Welfare and Institutions Code section 5303 so as to exclude
the right to refuse to testify—a subject not even remotely before the Burnick
court—is highly implausible. Rather, the citation appears intended simply as an
aid to the Burnick reader in locating the current constitutional provision
guaranteeing due process—the constitutional right that was under discussion in
Burnick. In any event, Welfare and Institutions Code section 5303 employs
different language and has a different history than section 1026.5(b)(7), the statute
at issue here, and Bones‘s conclusions on the former are not persuasive as to the
latter. (See Joshua D., supra, 157 Cal.App.4th at p. 562.)5

III. Conclusion
By its terms, section 1026.5(b)(7) provides that NGI committees facing a
commitment extension hearing enjoy the trial rights constitutionally guaranteed to
criminal defendants, which include the right to refuse to testify in the People‘s
case-in-chief. Recognizing the application of that right in the commitment
extension context does not result in any absurd consequence; nor have we found
any other sufficient ground to depart from the statutory language in applying the
right not to testify to hearings under section 1026.5.

5 People v. Lopez, supra, 137 Cal.App.4th 1099, is disapproved to the extent
that it held the right to refuse to testify is excluded from the grant of rights in
section 1026.5(b)(7).

21
 DISPOSITION
The judgment of the Court of Appeal is affirmed.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
BAXTER, J.*
EPSTEIN, J.**

* Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

** Presiding Justice of the Court of Appeal, Second Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hudec v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 218 Cal.App.4th 311
Rehearing Granted

__________________________________________________________________________________

Opinion No. S213003
Date Filed: January 5, 2015
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Kazuharu Makino

__________________________________________________________________________________

Counsel:

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.

1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher D. McGibbons
Deputy Public Defender
14 Civic Center Plaza
Santa Ana, CA 92701-4029
(714) 834-2144

Brian F. Fitzpatrick
Deputy District Attorney
P.O. Box 165480
Santa Ana, CA 92702
(714) 347-8789

2