I respectfully dissent. Unlike the Gulag, in our constitutional system the key to the door of the mental hospital is entrusted solely to a jury. Since 1972 there has been no doubt about that. In that year the California Supreme Court took pains in a unanimous opinion (In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465]) to explain how the United States and California Constitutions protect those who are committed following a finding of not guilty by reason of insanity (NGI). In terms that cannot be misunderstood Justice Burke’s opinion spells out that automatic commitment of such a person is constitutional “so long as” the prehearing commitment period extends no longer than is reasonably necessary for institutional examination of his mental condition and thereafter “reasonable opportunity” is provided for a full jury hearing on the question of whether he should be released into society. (Id., at pp. 142-145, 148-149.) The explicit premise throughout the opinion is that California’s initial commitment procedures—then a maximum of 90 days (former Pen. Code, § 1026, subd. (a),1 now 180 days (§ 1026.2, subd. (d))—are valid “only because” the person committed has a reasonable opportunity to obtain his release including “that petitioner is constitutionally entitled to a jury trial on the question of his release.” (At pp. 145, 149.)
What has changed statutorily since Franklin was decided—as the majority opinion accurately describes—is that a committed person cannot be released unconditionally until he or she has successfully completed a one year stint in an “appropriate local mental health program” and the committed person cannot begin such a local mental health program until he or she convinces a “court” at “a hearing” that he or she “will not be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, . . .” (§ 1026.2, subd. (e).)
Thus the essence of the test (whether the committed person will be a danger to the health and safety of others, etc.) that follows the initial examination period has not changed. What has changed is that: (1) the period for initial testing has been increased from 90 to 180 days; (2) following that initial period a hearing is held to determine whether the committed person is fit for treatment in a local mental health facility; and (3) at the end of the one year of treatment in the local health facility a trial will be had to determine whether the person’s sanity has been restored.
Petitioner challenges neither change one nor change three and thus those portions of the majority opinion finding sound public policy reasons for such procedures are irrelevant to the sole issue squarely presented: who determines whether a committed person ever gets into the local mental *978health program, a judge or a jury. Our Supreme Court has already answered the question in Franklin.
The unanimous holding in Franklin is worth repeating: (1) the commitment period that precedes the constitutionally required jury trial cannot exceed the time reasonably necessary for institutional examination of the person’s mental condition; and (2) as soon as the institution completes its examination a “reasonable opportunity” must be provided for a jury determination as to whether he or she should be released to society. (Id., 7 Cal.3d at pp. 142-145, 148-149.) Does section 1026.2 provide petitioner with “a reasonable opportunity” for what Franklin holds is constitutionally mandated at the close of the 180 day period: a jury determination as to whether he should be released to society? If what petitioner gets immediately after his 180-day initial commitment is a hearing before some trier of fact other than a jury of his peers then the answer is no. Franklin requires a jury trial.
But there is no need to declare the statute unconstitutional. All that is necessary is to read section 1026.2—particularly subdivision (e)—as referring to a jury trial in its reasonably vague language “[i]f the court at the hearing determines . . . .” That language—almost identical to the language of former section 1026 construed by the Supreme Court in Franklin—(at p. 149)—does not preclude a jury trial upon a timely demand. Since a jury trial is constitutionally required, the statutory language should be construed to meet that mandate as it was in Franklin. Nor does anything in the history of the 1984 amendment indicate any legislative intention to change what Franklin requires: a jury trial immediately following a prehearing commitment period on the question of suitability for release.2
*979Ignoring that part of the Franklin holding which requires an immediate jury trial following the initial commitment period, the majority is content with the possibility that petitioner may someday qualify for a jury trial.
The majority opinion concedes the “ultimate decision whether the applicant has actually been restored to sanity must be made by a jury” (majority opn., ante, p. 975) and candidly admits that this ultimate fact finder may never be reached. (Id., at p. 976.) But that is not improper, we are told, because there are “procedural safeguards”: each time petitioner is turned down by the superior court judge he merely has to wait a year before asking again. And he may do so “for an unlimited time.” (Id., at p. 975.) This procedural safeguard amounts to reminding petitioner that when he is denied his constitutional right he may ask again and again and again. Not unlike the Gulag.
The additional procedural safeguard relied upon by the majority is that the judge’s factual determination is subject to review by habeas corpus. (Majority opn., ante, p. 976.) So far as I am aware this is the first time in the history of California constitutional jurisprudence that judicial review of a judge’s factual findings has been equated with a right to trial by jury.
The real predicate of the majority’s decision is that the only thing being denied petitioner is a jury determination regarding what the majority euphemistically describe as a “placement” decision. (Majority opn., ante, p. 974.) This is also the tack taken by the Attorney General, although the nomenclature used by him is a little different: release to a local mental health program is a mere “treatment choice.” The argument is that one is not entitled to a jury trial on treatment choices or placement decisions.
Viewed in those terms the argument is difficult to counter. Of course petitioner is not entitled to a jury determination on whether an aspirin or an enema is the proper treatment nor should a jury be empaneled to determine whether he should be housed in one wing of a hospital or another. But, those are not the decisions the trier of fact is asked to make under section 1026.2. Rather what must be determined is whether “the applicant will. . . be a danger to the health and safety of others, including himself or herself, if under supervision and treatment in the community,. . .” (§ 1026.2, subd. (e).) If the answer is in the negative then placement in the local mental health program follows automatically. (Ibid.) If the answer is in the affirmative the person stays where he is: in custody. (Ibid.) But in either event *980the ultimate question is freedom or the continued total and unconditional denial of freedom, a far cry from choosing between aspirins or enemas.
More critical to our inquiry, however, is that the determination made by the trier of fact at this initial hearing is itself the condition precedent to the right that even the majority opinion recognizes to be of a constitutional dimension: the jury trial at the end of the 12-month period in the local mental health program.
Under the 1984 amendments petitioner has no chance of being restored to society until he has successfully completed one year of treatment in a local mental health program. Getting into that program becomes the sine qua non to freedom—the key to the door. Such questions are thus not merely questions of “treatment” or “placement” although they certainly partake of both. They are questions that condition freedom. As I understand the clear, unmistakable and repeated holding and rationale of Franklin, once the initial treatment and evaluation period has ended—as it has here— petitioner has an unconditional immediate right to have a jury determine such questions.
For these reasons I would construe section 1026.2, subdivision (e) to conform with the holding of In re Franklin. Therefore I would issue a peremptory writ of mandate directing respondent court to grant petitioner’s request for a jury trial to determine whether petitioner would pose a danger to the health and safety of others, including himself, if under supervision and treatment in the community.
Petitioner’s application for review by the Supreme Court was denied January 22, 1987.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The staff analysis of the Senate Committee on the Judiciary reveals that the 1984 changes in the commitment procedure were drafted with the lessons of Franklin in mind. For example, in commenting on the proposed increase of the initial commitment period from 90 days to 180 days, the analysis states: “(a) Constitutionality [¶] The present 90 day hospitalization requirement has been upheld against due process and equal protection as being ‘reasonably necessary to provide a minimum opportunity for institutional observation and examination regarding the patient’s present sanity.’ [In re Franklin (1977) 7 Cal.3d 126.] Extending the minimum confinement period to 180 days could invite the same attacks. However, the new requirement appears supportable for the same reasons. . . .” (At p. 6.)
The Legislature was well aware of the Franklin decision as revealed in the above statement and in the explanation, in the same analysis, that the new statute would codify the Franklin test for restoration of sanity.* Yet with Franklin specifically brought to its attention, the Legislature did not write into section 1026.2 any provision that an applicant for release had no right to a jury trial to determine the question of initial release to a local mental health program.
The analysis for the Senate Committee on the Judiciary explains: “In In re Franklin, (1972) 7 Cal.3d 126, the court held that the relevant standard for determining whether a person has been restored to sanity is whether ‘he has improved to the extent that he is no longer a danger to the health and safety of others, including himself.’ Recently, in People v. Woodson, (1983) 140 Cal.App.3d 1, the First District Court of Appeal reasoned that the Franklin test applied only to violent offenders, and held that the test for nonviolent offenders *979is ‘whether there is a reasonable likelihood that the hospitalized person will recommit the offense that led to his hospitalization.’ [¶] This bill would codify the Franklin rule as the test for restoration of sanity, and would overturn Woodson.” (At pp. 10-11.)