Filed 3/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B311611
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM033875)
v.
JESUS MAGANA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Conditionally
affirmed with directions.
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
______________
In 2011 Jesus Magana was convicted of two counts of
committing lewd and lascivious acts on a child under the age of
14, and he was sentenced to six years in state prison. Prior to
Magana’s release, on November 7, 2016 the People filed a petition
to commit Magana as a sexually violent predator (SVP) under the
Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600
et seq.). 1 At the conclusion of the probable cause hearing, the
superior court found there was no probable cause to support the
petition. The People appealed, and we reversed, concluding the
trial court erred in dismissing the petition for lack of probable
cause because “‘a reasonable person could entertain a strong
suspicion that the offender is an SVP’” based on the experts’
opinions Magana suffered from pedophilic disorder. (People v.
Magana (Apr. 29, 2019, B288123) [nonpub. opn.]).
On remand, the trial court made a finding there was
probable cause to believe Magana met the criteria for
commitment as an SVP. On the day set for trial, the court
provided a minimal advisement to Magana of his right to a jury
trial (explaining only that in a court trial the same burden of
proof applies), and Magana waived his right to a jury trial. After
a seven-day court trial, on March 16, 2021 the trial court found
the petition to be true, declared Magana to be an SVP, and
committed him to the State Department of State Hospitals for an
indeterminate term.
On appeal, Magana urges us to read into the SVPA a
requirement that the trial court provide a full jury trial
advisement, as required under other civil commitment statutes.
1 All statutory references are to the Welfare and Institutions
Code, unless otherwise indicated.
2
In the alternative, Magana contends the trial court violated his
right to due process and equal protection by failing to provide
him a sufficient advisement of his right to a jury trial as
articulated by the Supreme Court in People v. Sivongxxay (2017)
3 Cal.5th 151, 166 (Sivongxxay).
In People v. Washington (2021) 72 Cal.App.5th 453, 463
(Washington) we rejected the argument made by an alleged SVP
that we should read into the SVPA a requirement that the trial
court provide a full jury trial advisement and take a personal
waiver of an alleged SVP’s right to a jury trial. We also
concluded there was no due process violation. (Id. at p. 471.)
However, as to the claim that the lack of a full jury trial
advisement and waiver violated the defendant’s right to equal
protection under the federal and California Constitutions (U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7), we remanded for the
defendant to raise his claim in the trial court. We observed,
“[W]e have difficulty seeing how the dangerousness of an SVP
would justify denying an alleged SVP the procedural protections
for the right to a jury trial afforded other civil committees,
especially given the significant liberty interests at stake for an
alleged SVP facing a potential indefinite commitment.”
(Washington, at p. 474.)
As in Washington, Magana’s equal protection claim likely
has merit. We conclude a rational basis review standard applies
to Magana’s equal protection claim. Even under this deferential
standard, the People have not shown a legitimate government
purpose to justify differential treatment of SVP’s from other civil
committees with respect to advisement of an SVP’s right to a jury
trial and a personal waiver of that right. However, because
Magana did not raise his equal protection claim in the trial court,
3
we remand for Magana to raise his equal protection claim, and
upon a showing SVP’s and other civil committees are similarly
situated as to their right to a jury trial, to provide an opportunity
for the People to meet their burden to justify the disparate
treatment of SVP’s.
We conditionally affirm the order declaring Magana to be
an SVP and committing him to the State Department of State
Hospitals for an indeterminate term. If the trial court
determines there is an equal protection violation, the court shall
vacate the order declaring Magana to be an SVP and set the
matter for a jury trial, unless Magana provides a knowing and
intelligent waiver of his right to a jury trial after being personally
advised of that right.
FACTUAL AND PROCEDURAL BACKGROUND
On February 3, 2021 Magana appeared for trial by
videoconference from Coalinga State Hospital, assisted by a
Spanish language interpreter. After defense counsel advised the
trial court that neither he nor Magana was requesting a jury
trial, the court advised Magana as to his right to a jury trial:
“The court: [M]y understanding is that both sides have
agreed . . . to try this matter without a jury, and—so it will be a
court trial for Mr. Magana’s benefit.
In a court trial, the same burden of proof applies as in a
jury trial. [The] court would have to be convinced beyond a
reasonable doubt [of] the allegations . . . that are in the petition
in order to sustain the petition.
4
If the People fail to meet that burden, then the petition
would not be sustained, and Mr. Magana would be released.
Okay?
So my understanding, Mr. Magana, is that you agree with
your attorney to proceed without a jury trial and have this court
hear the matter. Is that correct, Mr. Magana?
“[Magana]: Yes. That’s correct.
“The court: Okay. Thank you. People join in the jury waiver?
“[Prosecutor]: Yes, your honor.
“[Defense counsel]: And I join as well, your honor.
“The court: Excellent. Thank you.”
The trial commenced as a court trial on February 3, 2021.
On March 16 the court found the petition to be true and declared
Magana to be an SVP. The court committed Magana to the State
Department of State Hospitals for an indeterminate term.
Magana timely appealed.
DISCUSSION
The SVPA
“The SVPA authorizes the involuntary civil commitment of
a person who has completed a prison term but is found to be a[n]
[SVP].” (State Dept. of State Hospitals v. Superior Court (2015)
61 Cal.4th 339, 344.) An SVP is defined as “a person who has
been convicted of a sexually violent offense against one or more
5
victims and who has a diagnosed mental disorder that makes the
person a danger to the health or safety of others in that it is
likely that he or she will engage in sexually violent criminal
behavior.” (§ 6600, subd. (a)(1).) “The court must order a trial if
there is probable cause, and it must dismiss the petition if there
is not.” (State Dept. of State Hospitals, at p. 346; accord, People v.
Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 43.)
An alleged SVP is entitled to a jury trial, but only upon a
demand by the alleged SVP or the SVP’s attorney. Section 6603,
subdivision (a), provides, “A person subject to this article is
entitled to a trial by jury . . . .” Subdivision (b), in turn, provides,
“The attorney petitioning for commitment under this article has
the right to demand that the trial be before a jury.” Further, “[i]f
the person subject to this article or the petitioning attorney does
not demand a jury trial, the trial shall be before the court without
a jury.” (Id., subd. (f).) The SVPA does not require the trial court
to advise an alleged SVP of the right to a jury trial.
Standard of Review
“We review questions of statutory construction de novo.
Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.]
We consider first the words of a statute, as the most reliable
indicator of legislative intent. [Citation.]’ [Citation.] We
construe the statute’s words in context, harmonizing statutory
provisions to avoid absurd results. [Citation.] If the statutory
text is susceptible to more than one reasonable construction, we
may consider extrinsic aids such as legislative history to facilitate
our interpretative analysis.” (California Building Industry Assn.
v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1041;
6
accord, People v. Blackburn (2015) 61 Cal.4th 1113, 1123
(Blackburn).)
Right to a Jury Trial in an SVP Proceeding
Magana contends the trial court erred by failing to advise
him fully of his right to a jury trial, analogizing to the
requirements in the statutory schemes for extending the
involuntary commitment of a mentally disordered offender
(MDO) (Pen. Code, § 2972, subd. (a)(1) & (2)) and for extending
the involuntary commitment of a person initially committed after
pleading not guilty by reason of insanity (NGI) to a criminal
offense (id., § 1026.5, subd. (b)(4) & (5)). Both the MDO and NGI
statutes require the trial court to advise the committee of the
right to a jury trial and for the committee to waive that right.
(People v. Tran (2015) 61 Cal.4th 1160, 1163 (Tran) [“The trial
court must advise the NGI defendant personally of his or her
right to a jury trial and, before holding a bench trial, must obtain
a personal waiver of that right from the defendant unless the
court finds substantial evidence that the defendant lacks the
capacity to make a knowing and voluntary waiver, in which case
defense counsel controls the waiver decision.”]; Blackburn, supra,
61 Cal.4th at pp. 1120-1122 [MDO statute requires both an
advisement of a defendant’s right to a jury trial and a personal
waiver of that right by the defendant].)
Magana urges us in light of the Supreme Court’s decisions
in Blackburn and Tran to interpret the SVPA to require the trial
court to obtain a defendant’s personal waiver of the right to a
jury trial. However, unlike the MDO and NGI statutes, the
SVPA does not require the court to advise the defendant of the
right to a jury trial. We reject Magana’s effort to read into the
7
SVPA a requirement that the trial court provide a jury trial
advisement to the alleged SVP. As we explained in Washington,
supra, 72 Cal.App.5th at page 463, after reviewing the language
and legislative history of the SVPA and other civil commitment
statutes, “unlike the MDO and NGI statutes, the SVPA does not
contain language requiring a jury trial advisement or a personal
waiver of that right, evincing a legislative intent not to provide
these procedural protections.”
The Trial Court’s Failure To Provide a Full Advisement to
Magana of His Right to a Jury Trial Did Not Violate Due
Process
Magana contends the failure of the trial court to provide a
full advisement of his right to a jury trial before taking a waiver
of that right violated his due process rights. As we concluded in
Washington, supra, 72 Cal.App.5th at page 471, there is no due
process violation. 2
In Washington, supra, 72 Cal.App.5th at page 471, we
analyzed whether the lack of a jury trial advisement and
personal waiver was a due process violation by applying the four
factors set forth by the Supreme Court in People v. Otto (2001)
26 Cal.4th 200, 209-210 (Otto). We explained that although there
is not a constitutional right in an SVP proceeding to a jury trial,
“‘[b]ecause civil commitment involves a significant deprivation of
liberty, a defendant in an SVP proceeding is entitled to due
process protections.’” (Washington, at p. 469, quoting Otto, at
p. 209.) Further, as the Otto court held, “A defendant challenging
2 The People argue Magana has forfeited his equal protection
challenge, but they do not assert forfeiture as to his due process
claim.
8
the statute on due process grounds carries a heavy burden.
Courts have a ‘“duty to uphold a statute unless its
unconstitutionality clearly, positively, and unmistakably appears;
all presumptions and intendments favor its validity.”’” (Otto, at
pp. 209-210; accord, Washington, at p. 469.)
The Otto court identified four factors for courts to consider
in determining what process is due an alleged SVP: “(1) the
private interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; (3) the government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail; and (4) the dignitary interest in informing
individuals of the nature, grounds, and consequences of the
action and in enabling them to present their side of the story
before a responsible government official.” (Otto, supra,
26 Cal.4th at p. 210; accord, Moore v. Superior Court (2010)
50 Cal.4th 802, 819; Washington, supra, 72 Cal.App.5th at
page 469.)
The trial court in Washington did not advise the defendant
of his right to a jury trial or inquire of him whether he wanted to
waive his right to a jury trial, instead relying on a waiver by
defense counsel. (Washington, supra, 72 Cal.App.5th at p. 461.)
Nonetheless, we concluded, after applying the four Otto factors,
there was no due process violation. (Id. at pp. 469-471.) Here,
the trial court only advised Magana that the same burden of
proof would apply in a court trial that would apply in a jury trial.
By not informing Magana of what rights he would be giving up,
including that a jury is comprised of 12 members of the
9
community; an alleged SVP through counsel may participate in
jury selection; all 12 jurors must unanimously agree in order to
render a verdict; and in a court trial the judge alone will render
the verdict (Sivongxxay, supra, 3 Cal.5th at p. 169), the court’s
advisement did not provide Magana with the necessary
information to make a meaningful decision whether to waive his
right to a jury trial. (See Sivongxxay, at p. 166 [criminal jury
trial waiver must be knowing in that it was “‘“‘“made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it,”’”’” and voluntary
“‘“in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception.”’”’”].)
However, we conclude, as in Washington, application of the
four factors does not show a due process violation. The first
factor—the private interests at stake—weighs in favor of Magana
because, as the Supreme Court has observed, “commitment under
the [SVPA] affects significant interests, including liberty,
reputation, and freedom from unwanted treatment. These
interests . . . weigh[] in favor of adopting all reasonable
procedures to prevent their erroneous deprivation . . . .” (Moore v.
Superior Court, supra, 50 Cal.4th at pp. 821-822; see Washington,
supra, 72 Cal.App.5th at pp. 469-470.)
As to the second factor, we consider whether additional
procedural safeguards are necessary to prevent an erroneous
deprivation of the defendant’s liberty interests in the SVP
proceeding. (Otto, supra, 26 Cal.4th at p. 210; Washington,
supra, 72 Cal.App.5th at p. 470.) In Washington, we concluded
that although the defendant did not personally waive his right to
a jury trial, he was present when the court confirmed his
attorney had waived his right to a jury trial, and “nothing in the
10
record suggests his attorney did not advise him of his right to a
jury trial.” (Washington, at p. 470; see Blackburn, supra, 61
Cal.4th at p. 1124 [“[C]ounsel is presumed to know the
defendant’s rights and is obligated to advise the defendant
accordingly.”].) Here, Magana personally waived his right to a
jury trial, and there is nothing in the record to suggest defense
counsel did not explain to Magana the rights he was giving up.
The third factor of the governmental interest is neutral
because, as we observed in Washington, “the court’s advisement
to a defendant of his or her right to a jury trial creates a de
minimis burden.” (Washington, supra, 72 Cal.App.5th at p. 471.)
The fourth factor of the alleged SVP’s dignitary interest favors
the People because, as we held in Washington, “trial by the court
instead of a jury would not affect a defendant’s ability to
understand the nature, grounds, and consequences of the
commitment proceeding, nor would it prevent him from
presenting his case why he should not be committed as an SVP.”
(Ibid.)
We conclude, as we did in Washington, in light of Magana’s
heavy burden to show a due process violation, the lack of a full
advisement of Magana’s right to a jury trial did not violate his
due process rights. (Washington, supra, 72 Cal.App.5th at p.
471.)
We Remand for Magana To Raise His Equal Protection
Challenge
1. We decline to find Magana forfeited his equal
protection claim
The People contend Magana forfeited his equal protection
claim by not asserting it in the trial court because he bases his
11
claim on Supreme Court authorities that predate his trial. (See
People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14
[defendant’s failure to raise his equal protection claim in the trial
court forfeited the argument]; People v. Rogers (2006) 39 Cal.4th
826, 854 [holding as to equal protection and other constitutional
claims, “defendant forfeited each of these claims by failing to
raise them at trial”]; People v. Dunley (2016) 247 Cal.App.4th
1438, 1447 [“an equal protection claim may be forfeited if it is
raised for the first time on appeal”].)
Magana contends forfeiture does not apply because we first
announced the principle in Washington, supra, 72 Cal.App.5th at
page 474 that the failure of the SVPA to provide the same
procedural protections for an alleged SVP’s right to a jury trial
afforded to other civil committees likely violates equal protection
principles. Magana relies on the Supreme Court’s holding in
People v. Perez (2020) 9 Cal.5th 1, 8, in which the court declined
to find the defendant had forfeited a challenge to admission of
expert testimony relaying case-specific hearsay that the Supreme
Court in People v. Sanchez (2016) 63 Cal.4th 665, 670-671 later
decided violated the confrontation clause of the Sixth
Amendment. The Perez court explained, “‘“‘[W]e have excused a
failure to object where to require defense counsel to raise an
objection “would place an unreasonable burden on defendants to
anticipate unforeseen changes in the law and encourage fruitless
objections in other situations where defendants might hope that
an established rule of evidence would be changed on appeal.”’”’
[Citation.] ‘In determining whether the significance of a change
in the law excuses counsel’s failure to object at trial, we consider
the “state of the law as it would have appeared to competent and
knowledgeable counsel at the time of the trial.”’” (Perez, at p. 8.)
12
Although Magana on appeal relies on the Supreme Court’s
holdings in People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee
I), Blackburn, and Tran, all of which predate his trial, our later
opinion in Washington for the first time specifically addressed an
equal protection challenge to the SVPA’s lack of a jury trial
advisement. (Washington, at p. 474.)
Further, as we observed in Washington, in declining to find
the defendant had forfeited his equal protection challenge,
“‘application of the forfeiture rule is not automatic.’”
(Washington, supra, 72 Cal.App.5th at p. 473, quoting In re S.B.
(2004) 32 Cal.4th 1287, 1293; see Unzueta v. Akopyan (2019)
42 Cal.App.5th 199, 215 [“‘neither forfeiture nor application of
the forfeiture rule is automatic’”]; see People v. Nolasco (2021)
67 Cal.App.5th 209, 217 [exercising discretion to consider equal
protection challenge to statute for civil commitment of
developmentally disabled individual “because it presents an
important question of public concern”].)
We explained in Washington that it was not practical for
defense counsel, like Magana’s attorney here, to raise an equal
protection challenge: “Although Washington’s attorney failed to
argue that Washington was entitled to a jury trial absent a
personal waiver by Washington after a jury trial advisement, it is
hard to envision how counsel could have asserted this
claim. . . . The only way Washington could have asserted an
equal protection challenge in the trial court would have been for
his attorney to request the trial court advise Washington of his
right to a jury trial and take a personal waiver of that right.
Then, if the court declined to do so based on the absence of a
requirement in the SVPA, Washington’s attorney could have
argued not doing so would violate equal protection principles.
13
But presumably, Washington’s attorney believed Washington
wanted to proceed with a court trial (which may or may not have
been the case), and thus, counsel would have been unlikely to
demand the court advise Washington of his jury trial right and
take a personal waiver. Yet had the civil commitment proceeding
been under the MDO or NGI statutes, the court would have been
required to advise Washington of his right to a jury trial and to
take his personal waiver of that right, to ensure he was aware of
and making a knowing, intelligent, and voluntary waiver of that
right. Under these unusual circumstances, we decline to find
forfeiture based on Washington’s failure to raise an equal
protection challenge in the trial court.” (Washington, supra,
72 Cal.App.5th at pp. 473-474.)
Although Magana personally waived his right to a jury
trial, our reasoning in Washington applies here. To raise an
equal protection challenge in the trial court, Magana’s attorney
would have needed to demand a full advisement of Magana’s jury
trial rights, then asserted an equal protection challenge if the
court declined to provide it. We therefore decline to find Magana
forfeited his equal protection challenge.
2. Magana has a colorable equal protection challenge
Magana contends the SVPA’s lack of a required advisement
of the right to a jury trial violates equal protection principles. As
in Washington, supra, 72 Cal.App.5th at page 475, we remand for
Magana to have an opportunity to raise an equal protection
challenge to the SVPA based on the differential treatment of
SVP’s.
“The concept of equal treatment under the laws means that
persons similarly situated regarding the legitimate purpose of the
14
law should receive like treatment. [Citation.] ‘“The first
prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal
manner.” [Citations.] This initial inquiry is not whether persons
are similarly situated for all purposes, but “whether they are
similarly situated for purposes of the law challenged.”’” (People v.
Morales (2016) 63 Cal.4th 399, 408; accord, McKee I, supra,
47 Cal.4th at p. 1202); Washington, supra, 72 Cal.App.5th at
pp. 470-471.) As the Supreme Court explained in McKee I, “we
ask at the threshold whether two classes that are different in
some respects are sufficiently similar with respect to the laws in
question to require the government to justify its differential
treatment of these classes under those laws.” (McKee I, at
p. 1202.)
Where classes of persons are similarly situated, “[t]he
extent of justification required to survive equal protection
scrutiny in a specific context depends on the nature or effect of
the classification at issue. Unequal treatment based on a suspect
classification such as race is subject to ‘“the most exacting
scrutiny.”’ [Citation.] So is treatment affecting a fundamental
right. [Citation.] . . . In the high court, certain other
classifications, such as gender and illegitimacy, trigger
‘intermediate scrutiny’ under the federal Constitution.” (People
v. Chatman (2018) 4 Cal.5th 277, 288.) Where the challenged law
“neither draws a suspect classification nor burdens fundamental
rights,” “[w]e find a denial of equal protection only if there is no
rational relationship between a disparity in treatment and some
legitimate government purpose.” (Id. at pp. 288-289; accord,
People v. Turnage (2012) 55 Cal.4th 62, 74 [“Where, as here, a
15
statute involves neither a suspect class nor a fundamental right,
it need only meet minimum equal protection standards, and
survive ‘rational basis review.’”].)
The People do not dispute Magana’s contention SVP’s are
similarly situated to MDO’s and NGI’s. (See McKee I, supra, 47
Cal.4th at p. 1203 [“MDO’s and SVP’s are similarly situated for
our present purposes.”]; Washington, supra, 72 Cal.App.5th at p.
473, fn. 8 [“We assume, but do not decide, that SVP’s are similar
to MDO’s and NGI’s for purposes of Washington’s equal
protection challenge, but not civil committees under the LPS
Act.”].) Therefore, the state “is required to give some justification
for this differential treatment.” (McKee I, at p. 1203.)
At issue in McKee I was the provision in the SVPA for the
indefinite commitment of SVP’s, who had the burden to prove
they should be released, 3 whereas MDO’s would be committed for
a one-year period and were entitled after that period to be
released unless the People proved beyond a reasonable doubt the
MDO should be recommitted for another year. (McKee I, supra,
47 Cal.4th at p. 1202.) The Supreme Court concluded, “There is
therefore no question that, after the initial commitment, an SVP
is afforded different and less favorable procedural protections
than an MDO.” (Ibid.) The court remanded the case for the trial
3 Proposition 83, which was passed by the electorate in 2006,
“modified the terms by which [SVP’s] can be released from civil
commitment under the [SVPA]. In essence, it changes the
commitment from a two-year term, renewable only if the
People prove to a jury beyond a reasonable doubt that the
individual still meets the definition of an SVP, to an indefinite
commitment from which the individual can be released if he
proves by a preponderance of the evidence that he no longer is an
SVP.” (McKee I, supra, 47 Cal.4th at pp. 1183-1184.)
16
court to determine, applying a strict-scrutiny equal protection
analysis, whether the People “can demonstrate the constitutional
justification for imposing on SVP’s a greater burden than is
imposed on MDO’s and NGI’s in order to obtain release from
commitment.” (Id. at pp. 1208-1209, citing In re Moye (1978)
22 Cal.3d 457, 465-466 [applying a strict-scrutiny standard of
review based on an NGI’s “personal liberty” interest to less
favorable treatment of NGI’s as compared to MDO’s with respect
to commitment period and burden of proof].)
However, the McKee I court cautioned, “[W]e strongly
disagree with the concurring and dissenting opinion’s
characterization of our view as being ‘that every detail of every
civil commitment program is subject to strict scrutiny.’”
(McKee I, supra, 47 Cal.4th at p. 1210, fn. 13; see id. at p. 1223,
conc. & dis. opn. of Chin, J., [noting that “[a] person may have a
fundamental interest in his or her liberty,” but questioning
“whether this fundamental interest extends to all procedures
whereby decisions involving personal liberty are made” and
observing that “courts from other states that have considered the
question have overwhelmingly concluded that strict scrutiny does
not apply to equal protection challenges to civil commitment
programs”].)
In People v. Barrett (2012) 54 Cal.4th 1081, 1094 (Barrett),
the Supreme Court applied a rational basis standard to review an
equal protection challenge to section 6500, which provides for
civil commitment of developmentally disabled individuals who
pose a danger to themselves or others. (See id. at p. 1111, fn. 21
[rejecting “unduly strict standard of scrutiny” and instead
applying “the United States Supreme Court’s prevailing ‘rational
basis’ standard for analyzing the equal protection claims of
17
mentally [disabled] persons”].) The defendant in Barrett argued
the failure of the trial court expressly to advise her of her right to
a jury trial and to obtain a personal waiver of that right violated
her right to due process and equal protection. (Id. at p. 1089.)
The court rejected both challenges, concluding that although the
civil commitment statute did not provide for a jury trial
advisement and personal waiver, unlike section 5302 of the
Lanterman-Petris-Short Act (§ 5000 et seq.; the LPS Act), which
applies to an individual suffering from a “mental health disorder”
(§ 5150, subd. (a)), the attorney for a developmentally disabled
individual may waive the individual’s right to a jury trial because
the section 6500 commitment process raises substantial doubts
about the individual’s intellectual functioning and ability to
provide a knowing and intelligent jury waiver; by contrast, an
individual subject to commitment under the LPS Act does not
necessarily lack the ability to understand and make decisions. 4
(Barrett, at pp. 1089, 1109.)
As part of its rational basis review, the Barrett court
explained, “Nothing compels the state ‘to choose between
attacking every aspect of a problem or not attacking the problem
at all.’ [Citation.] Far from having to ‘solve all related ills at
once’ [citation], the Legislature has ‘broad discretion’ to proceed
4 The Barrett court found individuals committed under
section 6500 were not similarly situated to those committed
under the LPS Act for purposes of understanding a jury trial
advisement because of the uncertain ability of a developmentally
disabled person to comprehend the advisement. (Barrett, supra,
54 Cal.4th at p. 1109.) However, the court proceeded to address
the disparate treatment of individuals committed under
section 6500, applying rational basis review to the equal
protection challenge. (Id. at pp. 1109-1110 & 1111, fn. 21.)
18
in an incremental and uneven manner without necessarily
engaging in arbitrary and unlawful discrimination.” (Barrett,
supra, 54 Cal.4th at p. 1110; see People v. Nolasco, supra,
67 Cal.App.5th at p. 225 [applying rational basis review to equal
protection challenge to end date of section 6500 commitment
term, explaining, “[W]e choose to follow Barrett—and hence to
apply rational basis scrutiny—because Barrett is the most recent
pronouncement by our Supreme Court as to the pertinent level of
scrutiny to apply when comparing divergent civil commitment
procedures”].)
The McKee I court did not address whether an equal
protection analysis of the lack of a jury waiver advisement in the
SVPA is subject to strict scrutiny because of the liberty interests
involved (as a result of the indefinite commitment) or is a
procedural “detail” subject to the more deferential rational basis
review. (See McKee I, supra, 47 Cal.4th at p. 1210, fn. 13.) We
conclude the rational basis analysis of Barrett is more applicable,
even though made in the context of the section 6500 commitment
statute, because it involves the analogous situation of the lack of
a jury trial advisement and personal waiver under a civil
commitment statute. Although the indefinite commitment of an
alleged SVP affects the individual’s fundamental right to liberty,
ensuring an alleged SVP has meaningful access to the statutory
right to a jury trial, while essential to the exercise of that right,
does not affect a fundamental right. (See People v. Rowell (2005)
133 Cal.App.4th 447, 451-452 [“Civil commitment proceedings
‘are civil in nature and of a character unknown at common law.
[Citation.]’ [Citation.] ‘And, in such civil proceedings, unknown to
the common law (as distinguished from ordinary civil and
criminal cases), the use of a jury is a matter of legislative grant
19
and not of constitutional right.’”].) 5 But even under the more
deferential rational basis standard, the People have not met their
burden to show a credible justification for disparate treatment of
SVP’s with respect to a jury trial advisement.
The People urge us to find they have demonstrated a
sufficient justification to support disparate treatment of SVP’s
with respect to a jury trial advisement based on the findings of
the trial court on remand following the Supreme Court’s decision
in McKee I, supra, 47 Cal.4th 1172—that the indefinite
commitment of SVP’s and their burden to prove they should be
released was justified by the danger SVP’s pose to society.
(People v. McKee (2012) 207 Cal.App.4th 1325, 1347 (McKee II).)
5 Although the Supreme Court has not directly addressed
whether a defendant has a constitutional right to a jury trial in a
civil commitment proceeding (see, e.g., Blackburn, supra,
61 Cal.4th at page 1120 [“we have not previously addressed
whether a mentally disordered offender has a
constitutional right to a jury trial in a commitment extension
proceeding, and we do not address that question here”]), the
Supreme Court has held that other constitutional rights do not
apply in SVPA proceedings, including the Fifth Amendment
guarantee against compulsory self-incrimination and the Sixth
Amendment rights to self-representation and to confront
witnesses (People v. Allen (2008) 44 Cal.4th 843, 860). And as the
Third District explained in People v. Rowell, supra,
133 Cal.App.4th at page 451, an SVPA proceeding is not a
criminal or civil proceeding for which there was a right to a jury
trial at common law when the California Constitution was first
adopted in 1850. (Nationwide Biweekly Administration, Inc. v.
Superior Court (2020) 9 Cal.5th 279, 315 [“‘“The right to trial by
jury guaranteed by the Constitution is the right as it existed at
common law at the time the Constitution was adopted.”’”].)
20
After a 21-day evidentiary hearing with expert testimony and
documentary evidence on whether the disparate treatment of
SVP’s could be justified (McKee II, at pp. 1330, 1340-1346), the
trial court concluded the People met their burden, and the Court
of Appeal affirmed, explaining, “We conclude the trial court
correctly found the People presented substantial evidence to
support a reasonable perception by the electorate [in Proposition
83] that SVP’s present a substantially greater danger to society
than do MDO’s or NGI’s, and therefore the disparate treatment of
SVP’s under the Act is necessary to further the People’s
compelling interests of public safety and humane treatment of
the mentally disordered.” (Id. at pp. 1330-1331.)
The People argue that although McKee II involved the
indeterminate commitment and burden of proof under the SVPA,
“the same compelling interests that make those lesser procedural
protections necessary also justify the absence of a requirement
for a personal waiver of the jury trial right in section 6603.”
However, as we observed in Washington, supra, 72 Cal.App.5th
at page 474, “we have difficulty seeing how the dangerousness of
an SVP would justify denying an alleged SVP the procedural
protections for the right to a jury trial afforded other civil
committees, especially given the significant liberty interests at
stake for an alleged SVP facing a potential indefinite
commitment.” The People have not made a persuasive argument
how the dangerousness of people found to be SVP’s justifies a
failure to advise an alleged SVP of the right to a jury trial where
the person on trial (obviously) has not yet been found to be an
SVP.
Alternatively, the People point to section 6600,
subdivision (a)(3), which provides that in a jury trial under the
21
SVPA, “[j]urors shall be admonished that they may not find a
person a sexually violent predator based on prior offenses absent
relevant evidence of a currently diagnosed mental disorder that
makes the person a danger to the health and safety of others in
that it is likely that he or she will engage in sexually violent
criminal behavior.” The People speculate that this provision
“reflects legislative awareness that a judge might approach an
SVP case more objectively and dispassionately than a jury given
the subject matter at issue—a sexually violent offense,” providing
a justification for disparate treatment of SVP’s as to a jury trial
advisement. In essence, the People’s argument is that because
juries might be less objective in hearing SVP trials, the
Legislature intended to discourage jury trials by concealing from
alleged SVP’s their right to a jury trial. We reject this cynical
view that the Legislature purposefully tried to limit an alleged
SVP’s access to a jury trial under even the more deferential
rational basis analysis. Had the Legislature wanted to ensure
that judges hear SVP trials, it could have simply provided that
all SVP trials are to be heard by judicial officers. It did not.
The People contend in the alternative that we should
remand this case to the trial court to allow the People an
opportunity to demonstrate a constitutional justification for the
failure of the SVPA to provide for a jury trial advisement and
personal waiver of an alleged SVP’s right to a jury trial based on
the advisement. We agree remand is appropriate. As we
explained in Washington, supra, 72 Cal.App.5th at page 473,
“Because Washington did not raise an equal protection challenge
in the trial court (unlike the defendant in [McKee I]), the People
were not afforded an opportunity to make a showing as to why
alleged SVP’s may constitutionally be treated differently from
22
other civil committees with respect to jury waiver protections.
Thus, we do not have an appellate record on which to evaluate
Washington’s equal protection claim.”
We recognize that harmless error analysis may apply to the
denial of equal protection (see People v. Garton (2018) 4 Cal.5th
485, 501), but it does not generally apply to the denial of a
defendant’s right to a jury trial. As the Supreme Court explained
in Blackburn, supra, 61 Cal.4th at page 1134 with respect to the
failure to require a jury trial advisement and take a personal
waiver in MDO commitment proceedings, “The failure to obtain a
valid jury trial waiver defies ordinary harmless-error analysis.
To speculate about whether a defendant would have chosen a
jury trial if he or she had been in a position to make a personal
choice would pose insurmountable difficulties, as would an
inquiry into what effect, if any, that choice would have had on the
outcome of the trial.” The court continued, “‘[W]here a case
improperly is tried to the court rather than to a jury, there is no
opportunity meaningfully to assess the outcome that would have
ensued in the absence of the error.’ [Citation.] Accordingly, we
treat a trial court’s failure to obtain a required personal jury trial
waiver as tantamount to the denial of a jury trial, and as such, it
constitutes a ‘miscarriage of justice’ under article VI, section 13.”
(Blackburn, at p. 1134.) The court concluded “that when a trial
court errs in completely denying an MDO defendant the right to a
jury trial under [section 2972, subdivision (a)], the error requires
automatic reversal.” (Id. at p. 1136; see Tran, supra, 61 Cal.4th
at p. 1169 [holding as to trial court’s acceptance of NGI
defendant’s invalid jury trial waiver, “we hold for the reasons set
forth in Blackburn, supra, 61 Cal.4th at pp. 1132-1137, that such
error—resulting in a complete denial of the defendant’s right to a
23
jury trial on the entire cause in a commitment proceeding—is not
susceptible to ordinary harmless error analysis and automatically
requires reversal.”].)
However, “a trial court’s acceptance of a defendant’s
personal waiver without an express advisement may be deemed
harmless if the record affirmatively shows, based on the totality
of the circumstances, that the defendant’s waiver was knowing
and voluntary.” (Blackburn, supra, 61 Cal.4th at p. 1136; accord,
Tran, supra, 61 Cal.4th at p. 1170.) But “the requirement of an
affirmative showing means that no valid waiver may be
presumed from a silent record.” (Blackburn, at p. 1136; accord,
Tran, at p. 1170.) We have a silent record here. Although the
trial court advised Magana of the burden of proof in a court trial,
the court failed to advise Magana of any of the jury trial rights he
would be giving up, including the right to have a trial by a jury of
12 of his peers. And the record is silent as to whether Magana
was aware of those rights from his attorney or otherwise. Thus,
we cannot determine from the record whether Magana’s waiver
was knowing and intelligent, nor can we assess whether Magana
would have waived his right to a jury trial had he known of the
rights he was waiving. Accordingly, if on remand the trial court
finds there was an equal protection violation, it must vacate the
order declaring Magana to be an SVP and set the matter for a
jury trial, unless Magana provides a knowing and intelligent
waiver of his right to a jury trial after being personally advised of
that right.
We conditionally affirm the order declaring Magana to be
an SVP and committing him to the State Department of State
Hospitals for an indeterminate term. However, as in McKee I,
supra, 47 Cal.4th at pages 1208 to 1209, we remand for Magana
24
to have an opportunity to raise an equal protection challenge to
the SVPA based on the differential treatment of SVP’s in that,
unlike other civil committees, the statute does not provide for a
personal advisement of the alleged SVP’s right to a jury trial. If
Magana meets his burden on remand to show SVP’s and other
civil committees are similarly situated as to jury trial protections,
the People must demonstrate a “rational relationship between a
disparity in treatment and some legitimate government purpose.”
(Chatman, supra, 4 Cal.5th at pp. 288-289.)
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DISPOSITION
The order declaring Magana to be an SVP and committing
him to the California Department of State Hospitals for an
indeterminate term is conditionally affirmed. We remand for
Magana to have an opportunity to raise an equal protection
challenge to the SVPA’s jury waiver provisions. If the trial court
determines there is an equal protection violation, the court shall
vacate the order declaring Magana to be an SVP and set the
matter for a jury trial, unless Magana provides a knowing and
intelligent waiver of his right to a jury trial after being personally
advised of that right.
FEUER, J.
We concur:
PERLUSS, P. J.
WISE, J. *
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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