THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GORDON TILBURY, Defendant and Appellant, 54 Cal. 3d 56

Opinion PANELLI, J. The question before us is whether appellant, who has been found not guilty by reason of insanity and committed to a state hospital, is entitled to a jury trial on the issue of his eligibility for placement in a community mental health program as a supervised outpatient. (See Pen. Code, § 1026.2, subd. (e).) The Court of Appeal held that appellant was entitled to a jury trial. We reverse. Facts and Procedural Background On April 4, 1984, appellant Michael Gordon Tilbury went on a shooting spree with a .22-caliber rifle.

Insane, he believed that he was being persecuted by secret organizations, bombarded with microwaves, and poisoned with drugs in the water supply. During this episode Tilbury shot at and tried to kill several persons, including police officers. Fortunately, he injured only one person. On January 28, 1985, following treatment to restore his competence to stand trial (§§ 1370, 1372), Tilbury pled guilty to six counts of attempted murder, three counts of assault with a firearm, and three counts of assaulting police officers with a firearm, and admitted one enhancement for inflicting great bodily injury.

Pursuant to the plea bargain Tilbury waived his right to a jury trial on the issue of sanity (§ 1026, subd. (a)) and submitted that question to the court.

Based upon psychiatric reports, the court found that Tilbury was insane at the time of the offenses and, thus, not guilty by reason of insanity. (Ibid.) On March 19, 1985, after additional psychiatric evaluation (§ 1026, subd. (b)), the court determined that Tilbury had not fully recovered his sanity and committed him to Patton State Hospital for a maximum term of 23 years and 8 months. (§ 1026.1, subd. (b).) In October 1987, following the required minimum commitment period of 180 days (§ 1602, subd. (a)), the director of Patton State Hospital recommended that Tilbury be placed on outpatient status pursuant to

section 1603. Because the county mental health director did not advise the court that Tilbury would benefit from that status (§ 1602, subd. (a)(2)), the court disapproved outpatient status as it was required to do. (§ 1601, subd. (a).) The hospital director recommended outpatient placement again in April and October 1987. For the same reasons, the court denied the recommendations. None of these hearings were pursuant to

section 1026.2. In December 1987, Tilbury applied for supervised outpatient placement on his own behalf (§ 1026.2, subd. (a)) and requested a jury trial. Tilbury’s counsel argued that he was entitled to a jury under In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465], in which we held under a former statute that juries were required at hearings on unconditional release. The trial court denied the request based on Barnes v. Superior Court (1986) 186 Cal.App.3d 969 [231 Cal.Rptr. 158], in which the Court of Appeal held under the current statute that juries were not required at placement hearings.

At the ensuing placement hearing, for which the court did not empanel a jury, Tilbury testified that he had recently experienced a delusion similar to that which preceded his 1984 shooting spree. Based on Tilbury’s testimony and on the reports of psychiatrists, the county mental health department, and the state hospital, the court denied Tilbury’s application. On appeal, the Court of Appeal reversed and remanded for a jury trial.

Discussion A person who has been found not guilty by reason of insanity and committed to a state hospital must spend one year under supervision as an outpatient in a community mental health program before applying for a trial to declare the restoration of sanity and thereby to obtain unconditional release. (§ 1026.2, subd. (e), operative until Jan. 1, 1994.) We held in In re Franklin, supra, 7 Cal.3d 126, 148-149 (Franklin), that equal protection principles entitled a committed person to a jury at the sanity-restoration trial.

At the time we decided Franklin, however, the statute did not require a term of outpatient treatment as a prerequisite to unconditional release. (See former § 1026a, renumbered as § 1026.2 and amended by Stats. 1979, ch. 1114, § 2, p. 4051.) The question now before us is whether the committed person is also entitled to a jury at the first-stage hearing on outpatient placement. Statutory

Interpretation We consider the question initially as a matter of statutory

interpretation. The relevant statute does not purport to give a committed person the right to a jury at the hearing on outpatient placement. Instead, the statute provides that “[t]he court shall hold a hearing to determine if the person applying for restoration of sanity would no longer be a danger to the health and safety of others, including himself or herself, if under supervision and treatment in the community.

If the court at the hearing determines the applicant [meets this standard], the court shall order the applicant placed with an appropriate local mental health program for one year.” (§ 1026.2, subd. (e), italics added.) If the Legislature had intended to require juries at placement hearings, it knew how to say so clearly. In the same statutory scheme the Legislature expressly provided for juries at the sanity phase of criminal trials (§ 1026, subd. (a)) and at hearings to recommit at the end of the maximum term (§ 1026.5, subd. (b)(4)).

Even though the Legislature did not expressly provide for jury trials on the issue of outpatient placement, Tilbury advances two arguments to show that it did so implicitly. Neither argument is persuasive. First, Tilbury argues that the statutory term “hearing” actually means “jury trial.” Tilbury bases this argument on Franklin, supra, 7 Cal.3d 126, in which we held that a committed person was entitled to a jury at the sanity-restoration hearing described in former

section 1026a. The former statute referred to that proceeding simply as a “hearing,” without expressly requiring a jury. In 1984, many years after the Franklin decision, the Legislature amended the statute to require that a committed person spend one year as a supervised outpatient before applying for a sanity-restoration hearing. (§ 1026.2, subd. (e), added by Stats. 1984, ch. 1416, § 1, p. 4983.) Like the statute we interpreted in Franklin, the 1984 amendment once again uses the generic term “hearing,” but this time to refer to the newly required proceeding on the committed person’s application for outpatient placement. Consequently, to complete Tilbury’s argument, we should give a similar

interpretation to similar language. The defect in this argument is that Franklin mandated juries at sanity-restoration hearings solely on equal protection grounds, without regard to statutory language or legislative intent. (See Franklin, supra, 7 Cal.3d at pp. 148-149.) We did not hold that the term “hearing” meant, or was intended to mean, “jury trial.” Second, Tilbury argues that we can infer a legislative intent to provide juries at placement hearings without regard to the statutory language because the Legislature was aware of Franklin at the time it amended the statute to require such hearings.

However, the legislators’ awareness of Franklin logically suggests no more than that they took it for granted juries would continue to be required at sanity-restoration hearings. This was all that Franklin held. Accordingly, there is no good reason to believe that the Legislature actually intended to require jury trials on the issue of outpatient placement. This conclusion is consistent with the purpose of the 1984 amendment, which was to make the requirements for release “stricter” and to “prevent premature release.” (See Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1984 (1983-1984 Reg.

Sess.) (1984) pp. 1, 2; Assem. Com. on Crim. Law and Public Safety, Rep. on Sen. Bill No. 1984 (1983-1984 Reg. Sess.) (1984) p. 3.) In light of these purposes, it is far more reasonable to view the Legislature’s imposition of a qualifying period as a reaction to Franklin rather than as an effort to require jury trials at an earlier phase of the release process. Franklin’s effect, until the 1984 amendment, was to require jury trials every year upon demand, no matter how hopeless the case for unconditional release.

After the 1984 amendment, a committed person must first carry the lesser burden of demonstrating that he is no longer a danger to self or others while “under supervision and treatment in the community.” (§ 1026.2, subd. (e).) Equal Protection Because the relevant statute does not give Tilbury the right to a jury trial, we must address the further question whether constitutional law gives him that right. Tilbury claims that equal protection principles entitle him to a jury because a person committed civilly would be entitled to a jury under similar circumstances.

To address Tilbury’s claim, we briefly review the criminal and civil commitment schemes. When a criminal defendant pleads not guilty by reason of insanity, the finder of fact must determine by a preponderance of the evidence whether the defendant was insane at the time of the offense. (§ 1026, subd. (a); see Franklin, supra, 7 Cal.3d at pp. 147-148.) It is the defendant who must raise the defense and who bears the burden of proof. (§ 1026, subd. (a); see People v. Baker (1954) 42 Cal.2d 550, 564 [268 P.2d 705]; People v.

Daugherty (1953) 40 Cal.2d 876, 901 [256 P.2d 911].) If the defendant succeeds in proving his insanity at the time of the offense, commitment follows unless the court determines that the defendant has fully recovered his sanity. (§ 1026, subds. (a), (b).) The maximum term of commitment is equal to the longest term of imprisonment which could have been imposed for the offenses of which the defendant was convicted. (§ 1026.5, subd. (a)(1).) If the state at the end of the maximum term wishes to continue the commitment, it must bear the burden of proving, in a jury trial, that the defendant “by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.” (§ 1026.5, subd. (b).) Any ensuing recommitment is for two years only, and additional recommitments require additional jury trials. (§ 1026.5, subd. (b)(6), (8).) Of course, a defendant who recovers his sanity need not remain confined for the maximum term.

Release is possible at any time following a mandatory, 180-day commitment period (§ 1026.2, subd. (d)) if the defendant demonstrates his fitness for release, first by successfully completing one year under supervision in a community mental health program and then in a sanity-restoration trial. (§ 1026.2. subd. (e).) The procedure for involuntary civil commitments is set out in the Lanterman-Petris-Short Act. (Welf. & Inst.

Code, § 5000 et seq.) The process leading to commitment ordinarily begins with a 72-hour period of intensive treatment and evaluation. (Id., §§ 5150, 5170, 5200, 5206.) At the conclusion of the 72-hour period, the professional in charge of the treatment facility and one other physician or psychologist may certify the person for an additional 14 days of intensive treatment. (Id., § 5250 et seq.) Judicial review of the 14-day certification is permitted before a commissioner, referee, or certification review officer. (Id., §§ 5254, 5256.1.) Review is also possible through the writ of habeas corpus. (Id., § 5254.1.) The right to a jury trial attaches only when there is a petition to extend treatment beyond 14 days, or to establish a conservatorship for a gravely disabled person. (Id., §§ 5300-5303.1, 5350, subd. (d).) A commitment for involuntary treatment automatically terminates in 180 days (id., § 5304, subd. (b)) and a conservatorship in one year (id., § 5361).

The continuance of a commitment or conservatorship past the end of the designated term requires an additional petition and jury trial, if one is demanded. (Id., §§ 5304, subd. (b), 5361, 5362, subd. (b).) A civil committee or gravely disabled conservatee does not have the right to a jury trial on the question of his eligibility for release prior to the end of the designated term. However, both may invoke the writ of habeas corpus. (Welf. & Inst.

Code, §§ 5254.1, 5358.7, 7250.) A gravely disabled conservatee, in addition, may petition the court for a rehearing as to his status (id., § 5364) but is not entitled to a jury at that hearing. (Baber v. Superior Court (1980) 113 Cal.App.3d 955, 960-965 [170 Cal.Rptr. 353].) To summarize, civil and criminal commitments each begin with a jury trial, after any emergency treatment or pretrial detention. In the civil context, the jury trial is the hearing on the petition for involuntary commitment or to establish a conservatorship. In the criminal context, the jury trial is the sanity phase of the criminal trial.

In addition, both civil and criminal committees are entitled to juries at the conclusion of the designated term of commitment if there is a petition to recommit. Thus, the difference between the civil and criminal schemes is not the committed person’s right to a jury trial but the amount of time before recommitment is required. A civil commitment automatically terminates after 180 days, and a conservatorship after one year. A criminal commitment automatically terminates at the end of the variable maximum term unless, of course, the defendant has already demonstrated his sanity. In Jones v.

United States (1983) 463 U.S. 354 [77 L.Ed.2d 694, 103 S.Ct. 3043] {Jones), the United States Supreme Court upheld the District of Columbia’s substantially similar criminal commitment procedures. As in California, commitment in the District of Columbia followed the verdict of insanity at the time of the offense and the court’s determination that the defendant had not recovered his sanity.

Also as in California, the committed person was entitled to a review of his present sanity shortly after commitment, although not by a jury. (Id., at pp. 356-359 [77 L.Ed.2d at pp. 700-702]; cf. §§ 1026, subd. (a), 1026.2, subds. (d), (e).) The committed person in Jones challenged the District of Columbia’s procedures as violative of due process and equal protection.

He claimed that the verdict of insanity at the time of the offense did not provide a constitutionally sufficient basis for commitment. (463 U.S. at p. 363 [77 L.Ed.2d at pp. 704-705].) Based upon his assumption that the verdict did not provide a sufficient basis for commitment, Jones also claimed that equal protection principles entitled him to a jury at a mandatory hearing 50 days after confinement because civil committees were entitled to a jury trial upon commitment. (Id., at p. 362, fn. 10 [77 L.Ed.2d at p. 704].) Rejecting Jones’s due process challenge, the high court held that the verdict of insanity adequately supported the presumption that insanity continues: “[A] finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society.” (Jones, supra, 463 U.S. at p. 366 [77 L.Ed.2d at p. 706].) Moreover, the permissible duration of confinement need not be limited by the term of the hypothetical criminal sentence. “[W]hen a criminal defendant establishes by a preponderance of the evidence that he is not guilty of a crime by reason of insanity, the Constitution permits the Government, on the basis of the insanity judgment, to confine him to a mental institution until such time as he has regained his sanity or is no longer a danger to himself or society.” (Id., at p. 370 [77 L.Ed.2d at p. 709].) The high court’s rejection of Jones’s due process challenge logically compelled the rejection of his equal protection challenge, as well.

Jones argued that equal protection entitled him to a jury at the mandatory hearing 50 days after commitment because a civil committee would have been entitled to a jury at the time of commitment.

However, since the criminal commitment was based on the verdict of insanity in the criminal trial, and since that procedure satisfied due process, it followed that “the relevant equal protection comparison concern [ed] the procedures available at the criminal trial and at a civil-commitment hearing.” (Jones, supra, 463 U.S. at p. 362, fn. 10 [77 L.Ed.2d at p. 704].) Because Jones had received a jury trial at the sanity phase of the criminal trial, equal protection was satisfied. (Ibid. [77 L.Ed.2d at p. 704].) Our reasoning in Franklin is partly consistent with Jones and partly inconsistent.

One of the questions before us in Franklin was whether the required waiting period between the verdict of insanity in the criminal trial and the first release hearing was constitutional. As the high court would later recognize in Jones, we recognized that the verdict of insanity at the criminal trial supported “a presumption of continued insanity.” (Franklin, supra, 7 Cal.3d at p. 141, fn. 9.) We reasoned that “ ‘commitment without a hearing [on present sanity] is permissible for the period required to determine present mental condition.

The jury’s finding of a reasonable doubt as to defendant’s sanity at the time of the offense provides sufficient warrant for further examination.’” (.Franklin, supra, 7 Cal.3d at p. 142, quoting Ragsdale v. Overholser (D.C.

Cir. 1960) 281 F.2d 943, 948, italics omitted.) In other words, because “the defendant [has] had the burden of proving his insanity by a preponderance of the evidence,” “it is reasonable to presume . . . that defendant’s insanity, established by a preponderance of the evidence, has continued to the date of trial [on present sanity, i.e., the release hearing].” (Franklin, supra, 7 Cal.3d at p. 141, fn. deleted.) This much of the Franklin opinion is entirely consistent with Jones.

So also, we assume, is our explicit assumption in Franklin that “California’s initial commitment procedures are valid only because the person committed has a reasonable opportunity to obtain his release.” (Franklin, supra, 7 Cal.3d at p. 145.) Because an insanity acquittee is entitled to a hearing on outpatient placement 180 days after commitment, here, as in Jones, “there is assurance that every acquittee has prompt opportunity to obtain release if he has recovered.” (Jones, supra, 463 U.S. at p. 366 [77 L.Ed.2d at p. 706].) Franklin differs from Jones, however, in holding that postjudgment hearings on present mental sanity must be conducted before juries.

In Franklin we “found no sufficient reason why [an insanity acquittee’s] status necessarily must deny him the jury hearing available to other persons committed to state hospitals.” (Franklin, supra, 7 Cal.3d at p. 148; see Jones, supra, 463 U.S. at pp. 364-366 [77 L.Ed.2d at pp. 705-706].) We then proceeded to compare California’s criminal release statute with various civil commitment and recommitment statutes. (Franklin, supra, 7 Cal.3d at p. 148, citing Welf. & Inst.

Code, §§ 1800-1803 [California Youth Authority wards], 5302 [persons committed for involuntary treatment], 5350 [gravely disabled conservatees]; see ante, pp. 63-64.) Because persons committed civilly were entitled to juries at commitment and recommitment hearings under those statutes, we held that equal protection also required juries at criminal release hearings. (Franklin, supra, 7 Cal.3d at p. 148.) Some history is necessary to put the 18-year-old Franklin holding into context.

The statutes in effect in 1973 did not provide for a hearing before a jury at any time after the determination of insanity at the criminal trial. (See former §§ 1026, 1026a; Stats. 1935, ch. 318, §§ 1, 2, pp. 1075-1076, as amended by Stats. 1957, ch. 1766, § 1, p. 3160.) In 1979, responding to criticism by this court, the Legislature amended the law to require that an insanity acquittee be either released or recommitted at the end of a designated, maximum term.

The maximum term is equal to the longest term of imprisonment which could have been imposed for the offenses that the person committed. (§ 1026.5, added by Stats. 1979, ch. 1114, § 3, pp. 4051-4053; see In re Moye (1978) 22 Cal.3d 457 [149 Cal.Rptr. 491, 584 P.2d 1097] [requiring recommitment of insanity acquittees under civil commitment procedures at the end of the maximum term provided for the underlying offense].) If the state wishes to recommit at the expiration of the maximum term, it must prove in a jury trial that the defendant, by reason of a mental disease, defect, or disorder, continues to represent a substantial danger of physical harm to others. (§ 1026.5, subd. (b).) Thus, the current statute shifts to the state at the end of the maximum term the burden of proving that confinement continues to be necessary.

These changes in the law since Franklin, as well as the high court’s decision in Jones, make it unnecessary to require a jury in every postjudgment hearing on present mental sanity when the defendant has pled and proved his own insanity at the criminal trial before a jury, if one was demanded.

Even though success at the placement hearing is a prerequisite to eventual release, equal protection does not give a criminal committee the right to a jury at such hearings because civil committees likewise do not have the right to juries at release hearings, which in the civil context take the form of habeas corpus proceedings or court hearings to reconsider a gravely disabled conservatee’s status. (See ante, pp. 63-65.) In Franklin, as already mentioned, we made a different comparison: we compared criminal release procedures with civil commitment and recommitment procedures. (See Franklin, supra, 7 Cal.3d at p. 148, and the statutes cited therein.) However, the correct comparison is articulated in Jones: When a defendant’s commitment is based on the judgment of insanity at the criminal trial, “the relevant equal protection comparison concerns the procedures available at the criminal trial and at a civil-commitment hearing.” (Jones, supra, 463 U.S. at p. 362, fn. 10 [77 L.Ed.2d at p. 704], italics added.) Because criminal and civil committees enjoy the right to jury trials at the same stages of the commitment process, equal protection is not offended.

Although the law treats insanity acquittees differently with respect to the amount of time before recommitment is required, differences in criminal and civil commitment procedures need only be justified by a rational basis. (See Jones, supra, 463 U.S. at p. 362, fn. 10 [77 L.Ed.2d at p. 704]; Buthy v. NY Com’r of Office of Mental Health (2d Cir. 1987) 818 F.2d 1046, 1049; Benham v.

Ledbetter (11th Cir. 1986) 785 F.2d 1480,1485.) Such differences reflect “the widely and reasonably held view that insanity acquittees constitute a special class that should be treated differently from other candidates for commitment.” (Jones, supra, 463 U.S. at p. 370 [77 L.Ed.2d at p. 709].) The rational basis for California’s different treatment of insanity acquittees is that such a person initiates the commitment process himself by pleading and proving that mental illness has led him to commit a crime.

These circumstances substantially reduce the risk of erroneous commitment, or commitment for harmless, abnormal behavior, that justifies the need for frequent recommitment hearings in the civil context. There is no need in this case to reconsider Franklin's holding that a criminally committed person is entitled to a jury at the sanity-restoration trial. Since the Legislature was aware of that holding at the time it amended the statute and made no effort to abrogate it, we assume that juries at sanity-restoration hearings have become part of California’s current statutory scheme.

In view of Jones, however, there is no reason to extend Franklin’s holding to the first-stage hearing on outpatient placement. Due Process Nor does due process entitle Tilbury to a jury at the outpatient-placement hearing. There is, of course, no doubt that criminal commitment procedures must satisfy due process. “ ‘[Commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.’ ” (Jones, supra, 463 U.S. at p. 361 [77 L.Ed.2d at p. 703], quoting Addington v.

Texas (1979) 441 U.S. 418, 425 [60 L.Ed.2d 323, 330-331, 99 S.Ct. 1804].) However, due process does not call for the same procedures in every situation. Instead, “ ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ ” (Jones, supra, 463 U.S. at p. 367 [77 L.Ed.2d at p. 707], quoting Morrissey v.

Brewer (1972) 408 U.S. 471, 481 [33 L.Ed.2d 484, 494, 92 S.Ct. 2593].) In determining whether a particular set of procedural safeguards is adequate, it has become traditional to weigh several factors: “[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Mathews v.

Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 33, 96 S.Ct. 893]; see also Zinermon v. Burch (1990) 494 U.S. 113 [108 L.Ed.2d 100, 115 110 S.Ct. 975].) Consideration of these three factors does not lead to the conclusion that due process requires the state to provide juries at placement hearings. First, the involvement of a liberty interest does not by itself implicate the right to a jury. Juries have not been found necessary in other proceedings that can result in deprivations of liberty. (E.g., Morrissey v.

Brewer, supra, 408 U.S. 471, 488-489 [33 L.Ed.2d 484, 498-499] [stating the minimum requirements of due process in parole revocation hearings]; McKeiver v. Pennsylvania (1971) 403 U.S. 528, 541-551 [29 L.Ed.2d 647, 658-664, 91 S.Ct. 1976] [the due process clause of the Fourteenth Amendment, incorporating the Sixth Amendment, does not require juries in juvenile court proceedings]; Baldwin v.

New York (1970) 399 U.S. 66, 68-74 [26 L.Ed.2d 437, 439-443, 90 S.Ct. 1886] [the same is true'in trials of petty offenses].) Instead, the importance of the insanity acquittee’s liberty interest is reflected by such a person’s right to the substantial procedural safeguards associated with trials, including, among other things, the right to counsel, to a detached and neutral judicial officer, to present evidence, and to cross-examine adverse witnesses. (See § 1026.2, subd. (e) [the hearing on unconditional release is a “trial” before the superior court].) Second, there is no reason to believe that a jury’s decision on outpatient placement would be more reliable than a judge’s.

The decision to be made is whether “the applicant 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).) Juries have no more expertise in predicting future dangerousness than judges. Moreover, in the event of an erroneous decision the committed person has recourse to the writ of habeas corpus and to direct appeal (see Code Civ. Proc., § 904.1, subd. (b)), which are the same mechanisms that ensure the reliability of jury verdicts.

Third, the state has an obvious and valid interest in avoiding the cost of unnecessary jury trials. On this point, it is well to bear in mind that Franklin’s effect was to require the state to provide jury trials every year upon demand, even for a committed person who could not reasonably hope to prove that he would no longer be a danger to self or others.

The current statute mitigates this unnecessary burden by requiring a committed person first to demonstrate that he would not be dangerous to self or others “while under supervision and treatment in the community.” (§ 1026.2, subd. (e).) A person who cannot satisfy this lower standard cannot, by definition, satisfy the higher standard for unconditional release. (See Barnes v. Superior Court, supra, 186 Cal.App.3d at p. 976.) In

summary, the relevant factors do not, singly or in combination, support the conclusion that it violates due process for a judge to consider an insanity acquittee’s application for placement in a community mental health program. Insanity acquittees already enjoy substantial procedural safeguards at placement hearings, and the addition of juries would make such hearings more costly and burdensome without making their outcomes more reliable. Under these circumstances, due process does not require more than the statute already provides.

The Legislature’s effort to deal with the problem of criminal commitments is entitled to as much judicial deference as constitutional principles permit. As the United States Supreme Court has recognized, “‘[when [a legislative body] undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation . . . .’ ” (Jones, supra, 463 U.S. at p. 370 [77 L.Ed.2d at p. 709], quoting Marshall v.

United States (1974) 414 U.S. 417, 427 [38 L.Ed.2d 618, 626, 94 S.Ct. 700].) To require jury trials at placement hearings without the clearest constitutional necessity would send the message that we, not the Legislature, make the rules in this area, and thus stifle further legislative efforts to fashion appropriate solutions. Disposition The decision of the Court of Appeal is reversed. Lucas, C. J., Broussard, J., Arabian, J., and Baxter, J., concurred. All further statutory references are to the Penal Code unless otherwise noted.

Section 1026.2, subdivision (e), sets out the standards that a committed person must satisfy to qualify for outpatient treatment, the first stage, and for unconditional release, the second stage. The statute provides, in relevant part: “The court shall hold a hearing to determine if the person applying for restoration of sanity would no longer be a danger to the health and safety of others, including himself or herself, if under supervision and treatment in the community.

If the court at the hearing determines the applicant will not be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, the court shall order the applicant placed with an appropriate local mental health program for one year. All or a substantial portion of the program shall include outpatient supervision and treatment. The court shall retain jurisdiction.

The court at the end of the one year, shall have a trial to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, including himself or herself. The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate local mental health program. . . .” This version of the statute is operative until January 1, 1994. On that date, the prior version of the statute, as amended by Statutes 1984,

chapter 1416,

section 1, page 4982, will again take effect. (See fn. 5, post.)

Section 1026, subdivision (a), provides in part: “If the jury shall find the defendant guilty, or if the defendant pleads only not guilty by reason of insanity, then the question whether the defendant was sane or insane at the time of the offense shall be promptly tried, either before the same jury or before a new jury in the discretion of the court. . . .” (Italics added.)

Section 1026.5, subdivision (b)(4), provides in part: “The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney. . . .” (Italics added.) Former

section 1026a, which has been amended and renumbered as

section 1026.2 (Stats. 1979, ch. 1114, § 2, p. 4051; Stats. 1984, § 1, ch. 1416, p. 4982), is presently inoperative but will again take effect on January 1, 1994. The statute is identical in relevant part to the statute in effect at the time of the Franklin decision. Subdivision (

d) of

section 1026.2 provides, in relevant part: “No hearing upon the application for release shall be allowed until the person committed shall have been confined or placed on outpatient status or on parole under

Section 1611 for a period of not less than 90 days from the date of the order of commitment. If the finding of the court is adverse to releasing the person on the ground that sanity has not been restored, no application shall be filed by the person until one year has elapsed from the date of hearing upon the last preceding application. In any hearing authorized by this section, the burden of proving that sanity has been restored shall be upon the applicant. . . .” See footnote 5, ante.

Similarly, a narcotics addict who has been charged with or convicted of a crime is entitled to a jury trial before commitment to the Department of Corrections for confinement in the narcotics detention, treatment, and rehabilitation facility. (Welf. & Inst. Code, §§ 3050, 3051, 3108.) A ward of the California Youth Authority is likewise entitled to a jury trial if the state wishes to extend the detention past the end of the designated term. (Welf. & Inst. Code, § 1801.5; see In re Gary W. (1971) 5 Cal.3d 296, 305 [96 Cal.Rptr. 1, 486 P.2d 1201].) The waiting period was 90 days when we decided Franklin.

In 1984 the Legislature increased it to 180 days, as the American Law Institute recommended in its Model Penal Code. (Stats. 1984, ch. 1488, § 3.5, p. 5202; see Model Pen. Code, § 4.08(5); Assem. Com. on Crim. Law and Public Safety, Rep. on Sen. Bill No. 1984 (1983-1984 Reg. Sess.) (1984) p. 5 [noting the recommendation in the Model Penal Code]; Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1984 (1983-1984 Reg.

Sess.) (1984) p. 6 [same].) As an additional safeguard, the court must also order an evaluation of the insanity acquittee by the community program director or a designee immediately following the verdict of not guilty by reason of insanity and “prior to making [an] order directing that the [acquittee] be confined . . . .” (§ 1026, subd. (b).) The Legislature added this provision after our decision in Franklin, supra. (See Stats. 1975, ch. 1274, § 1, p. 3390.) The Court of Appeal in this case expressed its concern that commitments to mental institutions “are, as we have seen frequently in the history of many countries, and occasionally our own, subject to misguided or malicious manipulation.” (Cf.

Barnes v. Superior Court, supra, 186 Cal.App.3d at p. 977 (dis. opn. of Poché, J.) [comparing California’s criminal commitment procedures with the “Gulag”]. We believe that this concern is vastly overstated, for several reasons. First, it is the defendant—not the government—who initiates the criminal commitment by pleading and proving insanity. Second, we have no reason to believe that superior court judges will engage in “malicious manipulation” to extend commitments.

In the unlikely event that such a thing should occur, defendants have recourse to direct appeal and to the writ of habeas corpus—the same procedural mechanisms that ensure the reliability of jury verdicts. Third, a criminal committee is automatically entitled to a jury trial at the expiration of the maximum term. (§ 1026.5, subd. (b)(3).) Tilbury’s maximum term is long only because he committed a large number of serious crimes, including six attempted murders. By comparison, if he had committed a robbery he would have been entitled to a jury trial in five years.

If he had committed a simple assault, his commitment would have ended in six months; the Penal Code does not authorize extension of the criminal commitment of an insanity acquittee whose crime was a misdemeanor. (§ 1026.5, subds. (a)(3), (b)(1).)