Opinion
A163083
11-29-2022
The PEOPLE, Plaintiff and Respondent, v. William Joseph CANNON, Defendant and Appellant.
Jeremy Price and Rachel Belden, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Arlene A. Sevidal and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I and II of the discussion.
Jeremy Price and Rachel Belden, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Arlene A. Sevidal and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Jackson, P. J. Defendant William Joseph Cannon appeals from a postjudgment commitment order in a proceeding under the Sexually Violent Predator Act (SVPA or Act) ( Welf. & Inst. Code, § 6600 et seq. ). Defendant challenges this commitment order on three grounds: (1) the lack of substantial evidence to support the trial court's finding that he qualified as a sexually violent predator (SVP), (2) the admission of prejudicial hearsay expert testimony, and (3) the violation of his constitutional right to equal protection based on the court's failure to advise him of his right to a jury trial and to obtain his personal waiver of this right. We agree with defendant this matter should be remanded to the trial court to provide him an opportunity to raise his equal protection challenge. We otherwise affirm. FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise stated, all statutory citations are to the Welfare and Institutions Code.
I. Defendant's 2010 Criminal Conviction.
On December 16, 2010, defendant was convicted by plea of assault with intent to commit rape and dissuading a witness. On March 15, 2011, defendant was sentenced to a total term of seven years, representing the four-year middle term on the assault count, running consecutively to the three-year middle term on the dissuading count.
According to the stipulated basis for the plea, on October 3, 2010, defendant, wearing a face mask, grabbed the victim, Jane Doe, and attempted to drag her off the street to sexually assault her. As Jane struggled, defendant warned he would " ‘F'ing kill her’ " if she called the police. Jane, assisted by two bystanders, was able to escape. Defendant ran away but was later apprehended by police. During his subsequent police interview, defendant admitted that he was out that day " ‘hunting females to sexually assault them.’ " He also admitted that when he grabbed Jane, he intended to drag her to a secluded area to rape her but was thwarted by two passersby.
This stipulation was subsequently admitted into evidence in defendant's SVPA trial.
II. 2016 Petition to Commit Defendant Under the SVPA.
On August 30, 2016, the district attorney filed a petition to commit defendant under the SVPA. On October 3, 2016, after the parties submitted on expert reports prepared by Drs. Sanders and Miculian, the trial court made a finding of probable cause. Defendant's SVPA trial was subsequently continued several times, and the court ordered new evaluation reports. The updated evaluations were prepared in 2018, revealing a split in opinion among the experts as to whether defendant qualified as an SVP.
On February 7, 2018, at a pretrial conference unattended by defendant, his counsel waived his right to a jury trial.
III. Defendant's 2020 SVPA Bench Trial.
Following several additional continuances, defendant's bench trial began October 5, 2020.
A. Investigator Kevin Bailey.
Investigator Kevin Bailey, who interviewed defendant after his October 2, 2010 arrest, testified for the prosecution. Defendant told Bailey about two traumatic brain injuries that preceded his crimes. In 2007 and again in 2009, defendant suffered traumatic injury to the prefrontal lobes of his brain. In the first incident, defendant fell from a roof while on a trip to Guatemala. He lost consciousness. Afterward, defendant became obsessed with sex and began consuming large amounts of pornography.
A recording of this interview was admitted into evidence.
Defendant's behavioral changes caused conflict with his family, who sent him to Utah to live with his aunt. In 2009, while living there, defendant was hit by a truck while riding his bike. This second injury enhanced defendant's obsessions with sex and pornography and increased his sexual disinhibition. Soon, his aunt had enough and defendant went to live with his grandfather. Defendant's grandfather also became overwhelmed with defendant's sexual tendencies, and he eventually went to live with a coworker. This coworker then forced defendant to leave after defendant made sexually inappropriate comments to his wife.
Defendant acknowledged to Bailey that following his injuries, he "made some pretty irrational decisions ...." For example, defendant got into trouble with his college administration after getting caught viewing pornography in the library. After Bailey confronted defendant with his camera, defendant acknowledged there was a video on it that he made of himself masturbating.
Defendant also pursued a relationship with his 15-year-old next-door neighbor. Initially, the pair developed a mutual interest. However, defendant "just got kind of aggressive with her ...." One night, defendant entered her home through an unlocked window and attempted to "lure her out" to have sex. His conduct scared the young girl, and her mother told him to stay away. However, defendant returned one day to the girl's home and tried unsuccessfully to enter through a door. Defendant acknowledged to Bailey that had the door been unlocked, he "might've [pulled her out of the house and] raped her ...." Instead, the girl's mother called the police and obtained a restraining order against him.
Later, defendant began hunting girls to have sex with, ultimately finding and attempting to rape the 16-year-old victim that was the subject of his arrest. As defendant told Bailey, he acquired a backpack in which he carried a hat and mask that he intended to use to commit rape. For about a week prior to his crime, he went out "just looking for a girl that was walking by." Asked to explain, defendant said, "I mean I guess, um, I have like sexual urges." Defendant added that he formulated a plan to commit rape if the opportunity presented itself, even though his conduct was "wrong" and would harm his victim. "Maybe it was a bad time or something."
Defendant also told Bailey that on the day of his crime, he went to church carrying his bag packed with a hat, mask, and a pen, which he hoped to use to dupe his prospective victim into thinking he had a knife. Defendant's plan was to force his victim into a "darkened area," show her the pen/faux weapon, "cover her mouth," "push her down," "drop her pants" and "force her" "[t]o have sex with me." When Bailey asked what he would have been willing to do to avoid getting caught, defendant responded, "I guess maybe as far as it'll take." While his plan only included rape, defendant admitted, "I guess in some way probably [he was prepared to kill his victim if necessary]."
Defendant left church within minutes and began walking around. He "happened to see this girl" who appeared to be about 16 years old. Defendant made sure he could put on his mask "without kinda being seen by other people" before running toward the girl from behind. Defendant was surprised at how quickly he closed in on her without attracting her attention. However, soon after defendant grabbed the girl, a car stopped and two people got out. Had that not happened, defendant admitted, "I probably would have had sex with the girl and taken her down, um, down into the shed, done my business and tried to shut her up, I guess." Asked how far he would have gone if the girl had threatened to call the police, defendant responded, "I mean like I said, I never thought about killing someone, but I suppose maybe in the moment, it's possible, yes. I suppose it could happen." B. Expert Witnesses.
The expert testimony is the subject of several issues raised on appeal. Accordingly, the relevant testimony is discussed in much greater detail post (pp. 9–12).
Three expert psychologists, each of whom evaluated defendant several times, also testified at trial. Drs. Karlsson and Miculian, appearing for the prosecution, opined that defendant met the qualifications for an SVP and, as such, needed to stay in custody under treatment (pp. 9–11, post ). Dr. Dempsey, in turn, testified for the defense that defendant no longer qualified as an SVP and should be released to pursue outpatient treatment (p. 12, post ).
IV. The Commitment Order and Appeal.
On December 15, 2020, the trial court issued a written order finding that the prosecution met its burden to prove that defendant qualified as an SVP. Accordingly, defendant was committed to the State Department of State Hospitals–Coalinga (Coalinga) for an indefinite term. Defendant's timely appeal followed.
DISCUSSION
Defendant contends the trial court's commitment order must be vacated because (1) the prosecution failed to prove beyond a reasonable doubt that he was an SVP; (2) the court erroneously admitted expert testimony consisting of case specific hearsay; and (3) his constitutional right to equal protection was violated by the court's failure to advise him of his right to a jury trial or to elicit his personal waiver of this right. We address each issue in turn post .
See footnote *, ante .
III. Equal Protection Challenge.
Last, defendant contends his constitutional right to equal protection was violated by the court's failure to advise him of his right to a jury trial or to elicit his personal waiver of this right. Defendant reasons (1) he is similarly situated to defendants facing involuntary civil commitment as a mentally disordered offender (MDO) ( Pen. Code, § 2960 et seq. ) and those who plead not guilty by reason of insanity (NGI) ( Pen. Code, § 1026.5 ), yet (2) he is treated less favorably than those groups because commitment under the SVPA does not require the personal waiver of a jury trial.
"Decisions by this court and the United States Supreme Court ... have used the equal protection clause to police civil commitment statutes to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens." ( People v. McKee (2010) 47 Cal.4th 1172, 1199, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ) [collecting cases].) Relevant here, the SVPA affords an offender facing involuntary civil commitment the right to a jury trial. (§ 6603, subd. (a).) However, "[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." (§ 6603, subd. (f).) Thus, there is no requirement that the offender personally waive his or her right to a jury trial after being advised by the court of the implications of doing so. ( People v. Washington (2021) 72 Cal.App.5th 453, 463, 287 Cal.Rptr.3d 352 ( Washington ) ["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"].)
In contrast, an offender facing involuntary civil commitment under either the MDO or the NGI statute is entitled to a jury trial unless he or she, having been advised by the court of this right, personally waives it. ( Pen. Code, §§ 2972, subd. (a)(1) ["court shall advise the person of the right to be represented by an attorney and of the right to a jury trial"], (a)(2) ["trial shall be by jury unless waived by both the person and the district attorney"], 1026.5, subd. (b)(3)–(4) [same].) Thus, as reflected in the statutory language, "the Legislature intentionally established a different framework for a defendant's exercise of his or her right to a jury trial in an SVP proceeding, creating a presumption that the trial would be by the court unless demanded by the defendant." ( Washington, supra , 72 Cal.App.5th at p. 468, 287 Cal.Rptr.3d 352.) The question raised is whether this legislative distinction violates defendant's equal protection rights.
A. No Forfeiture.
We first address the People's threshold argument that defendant forfeited his equal protection challenge by failing to bring it below. Several courts have rejected this argument based on reasoning with which we agree. While a constitutional right may be forfeited if not timely asserted in the lower court ( People v. McCullough (2013) 56 Cal.4th 589, 593, 155 Cal.Rptr.3d 365, 298 P.3d 860 ), we have discretion to consider the claim on the merits if it presents a pure question of law and it is unclear whether the appellant had the opportunity to raise the argument below. ( In re Sheena K . (2007) 40 Cal.4th 875, 887, fn. 7, 55 Cal.Rptr.3d 716, 153 P.3d 282.) Such is the case here. Defendant's equal protection challenge raises a pure question of law, and it does not appear he had the opportunity to raise it below. (See People v. Nolasco (2021) 67 Cal.App.5th 209, 217, 281 Cal.Rptr.3d 880 ( Nolasco ) [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"]; People v. Magana (2022) 76 Cal.App.5th 310, 321, 291 Cal.Rptr.3d 394 ( Magana ).) As the Washington court aptly explained: "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. 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 ...." ( Washington, supra , 72 Cal.App.5th at pp. 473–474, 287 Cal.Rptr.3d 352.)
Similarly to the Washington court, we presume defense counsel reasonably believed defendant wished to waive his right to a jury trial and, as such, reasonably believed it was unnecessary to demand that the trial court advise him of his jury trial rights before raising an equal protection claim. ( Conservatorship of John L . (2010) 48 Cal.4th 131, 156–157, 105 Cal.Rptr.3d 424, 225 P.3d 554 ["in the absence of any contrary indication, the superior court may assume that an attorney is competent and fully communicates with the proposed [committee] about the entire proceeding"]; People v. Ngo (1996) 14 Cal.4th 30, 37, 57 Cal.Rptr.2d 456, 924 P.2d 97 [an attorney admitted to the California State Bar is presumptively competent].) Under these circumstances, the forfeiture doctrine should not apply.
B. Equal Protection Principles.
"The constitutional guaranty of equal protection of the laws means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law. [Citations.] If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] The question is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]" ( People v. Buffington, supra , 74 Cal.App.4th at p. 1155, 88 Cal.Rptr.2d 696.)
"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.’ " ( Magana, supra , 76 Cal.App.5th at p. 322, 291 Cal.Rptr.3d 394.)
C. Equal Protection Analysis.
The People concede SVP's are similarly situated to MDO's and NGI's for purposes of the jury trial laws in question. ( McKee I, supra , 47 Cal.4th 1172, 1203, 104 Cal.Rptr.3d 427, 223 P.3d 566 ["MDO's and SVP's are similarly situated for our present purposes"]; Magana, supra , 76 Cal.App.5th at p. 322, 291 Cal.Rptr.3d 394.) Accordingly, we turn directly to whether the state has "some justification for this differential treatment." ( McKee I , at p. 1203, 104 Cal.Rptr.3d 427, 223 P.3d 566.) The first step is deciding the appropriate level of scrutiny of the state's proposed justification.
"Because of the fundamental interests at stake, equal protection principles are often invoked in civil commitment cases to ensure that the statutory scheme applicable to a particular class of persons has not treated them unfairly in comparison with other groups with similar characteristics." ( People v. Barrett (2012) 54 Cal.4th 1081, 1107, 144 Cal.Rptr.3d 661, 281 P.3d 753 ( Barrett ).) Yet, decisions from the Courts of Appeal have reached differing conclusions about the level of scrutiny appropriate for assessing distinct claims of disparate treatment in civil commitments. (Compare Nolasco, supra , 67 Cal.App.5th at pp. 222–225, 281 Cal.Rptr.3d 880 [applying rational basis in the context of developmental disability commitment but acknowledging that "the law in this area appears to be in a state of flux"] and People v. Buffington, supra , 74 Cal.App.4th at p. 1156, 88 Cal.Rptr.2d 696 ["Strict scrutiny is the correct standard of review in California for disparate involuntary civil commitment schemes because liberty is a fundamental interest"].)
The common understanding is: "In ordinary equal protection cases not involving suspect classifications (such as race) or the alleged infringement of a fundamental interest (such as the right to vote or to pursue a lawful occupation), these legislative distinctions are upheld if they have a rational relationship to a legitimate state purpose. [Citation.] If the distinction, however, involves a suspect classification or infringes on a fundamental interest, it is strictly scrutinized and is upheld only if it is necessary to further a compelling state interest.... ([Citation];
Hubbart v. Superior Court, supra , 19 Cal.4th at p. 1153, fn. 20, 81 Cal.Rptr.2d 492, 969 P.2d 584.)" ( People v. Buffington, supra , 74 Cal.App.4th at pp. 1155–1156, 88 Cal.Rptr.2d 696.) As one court recently noted, rational basis scrutiny is " ‘exceedingly deferential: A law will be upheld as long as a court can "speculat[e]" any rational reason for the resulting differential treatment, regardless of whether the "speculation has ‘a foundation in the record,’ " regardless of whether it can be "empirically substantiated," and regardless of whether the Legislature ever "articulated" that reason when enacting the law.’ [Citation.]" ( Nolasco, supra , 67 Cal.App.5th at pp. 209, 220–221, 281 Cal.Rptr.3d 880.) Strict scrutiny, on the other hand, requires the state to prove it has "a compelling interest that justifies the law and that the distinctions, or disparate treatment, made by that law are necessary to further its purpose. ( Warden v. State Bar (1999) 21 Cal.4th 628, 641, 88 Cal.Rptr.2d 283, 982 P.2d 154 [citations].) Alternatively stated, applying the strict scrutiny standard, a law "is upheld only if it is necessary to further a compelling state interest. [Citation.]" ( People v. McKee (2012) 207 Cal.App.4th 1325, 1335, 144 Cal.Rptr.3d 308 ( McKee II ).)
Several courts have recognized that, while civil commitments in general implicate an individual's fundamental liberty interest, not all legislative enactments involving civil commitments directly impact this liberty interest. On the one hand, courts have considered equal protection challenges to civil commitment statutes governing who had the burden of proof when the committed individual seeks release, and have found strict scrutiny appropriate. (E.g., McKee II, supra , 207 Cal.App.4th at p. 1348, 144 Cal.Rptr.3d 308 [applying strict scrutiny review to reject defendant's equal protection challenge to the SVPA provision placing the burden on the committed person to prove he or she should be released, where the MDO provision provided for a one-year commitment after which release was automatic unless the People proved beyond a reasonable doubt the person should be recommitted for another year].) On the other hand, courts have considered equal protection challenges to civil commitment statutes relating, as here, to secondary or ancillary trial procedures that do not necessarily impact the individual's fundamental rights. Under these circumstances, rational basis review was applied. ( Magana, supra , 76 Cal.App.5th at p. 324, 291 Cal.Rptr.3d 394 ["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"]; Nolasco, supra , 67 Cal.App.5th at p. 225, 281 Cal.Rptr.3d 880.)
In Barrett , similar to here, the California Supreme Court addressed the equal protection challenge of an intellectually disabled person to the Legislature's failure to expressly authorize jury trials or require jury trial advisements in civil commitment proceedings under section 6500. ( Barrett, supra , 54 Cal.4th at pp. 1088–1089, 144 Cal.Rptr.3d 661, 281 P.3d 753.) Applying the rational basis standard of review, the court rejected the defendant's claim that equal protection principles required that section 6500 proceedings involve the same jury trial safeguards that apply under the Lanterman-Petris-Short Act (§ 5000 et seq.) to proceedings in which confined patients posing a " ‘demonstrated danger’ as a result of ‘mental disorder or mental defect’ " faced 180 days of civil commitment. ( Barrett, supra , 54 Cal.4th at pp. 1106, 1111, fn. 21, 144 Cal.Rptr.3d 661, 281 P.3d 753.) The court's majority reasoned: "Contrary to what Barrett implies, she has not been singled out for harsh and unfair treatment in this regard. Of the nine commitment procedures we have listed above, a majority (including § 6500 et seq.) either do not reference jury trial matters at all (such that a right to jury trial on request has been constitutionally implied), or they say nothing about advisements or waivers of any jury trial right otherwise provided therein. By the same token, variations in the other commitment schemes suggest no uniform set of jury trial procedures exists or was withheld from Barrett. There is nothing unusual or unconstitutional about the manner in which these statutes have evolved over time." ( Id . at p. 1110, 144 Cal.Rptr.3d 661, 281 P.3d 753, fns. omitted; accord, McKee I, supra , 47 Cal.4th at pp. 1210, fn. 13, 104 Cal.Rptr.3d 427, 223 P.3d 566 ["we 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’ "], 1223 (conc. & dis. opn. of Chin, J.) ["A person may have a fundamental interest in his or her liberty, but I question whether this fundamental interest extends to all procedures whereby decisions involving personal liberty are made.... [C]ourts 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"].)
The McKee I court held that "when certain due process protections for those civilly committed are guaranteed by statute, even if not constitutionally required, the denial of those protections to one group must be reasonably justified in order to pass muster under the equal protection clause." (McKee I, supra , 47 Cal.4th at p. 1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.) The court then remanded the case for the trial court to decide in the first instance 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, 104 Cal.Rptr.3d 427, 223 P.3d 566.) In doing so, the court cited In re Moye (1978) 22 Cal.3d 457, 465–466, 149 Cal.Rptr. 491, 584 P.2d 1097, which applied the strict scrutiny standard to an equal protection challenge based on the less favorable treatment afforded NGI's as compared to MDO's with respect to the statutory commitment period and burden of proof. (McKee I , at pp. 1208–1209, 104 Cal.Rptr.3d 427, 223 P.3d 566.) The McKee I court did not expressly hold that the strict scrutiny standard should apply on remand. One appellate court that analyzed McKee I concluded that the McKee I court in fact applied "a form of ‘heightened scrutiny’ that appears to be less rigorous than strict scrutiny but more onerous than rational basis scrutiny." (Nolasco, supra , 67 Cal.App.5th at pp. 224–225, 281 Cal.Rptr.3d 880.)
We agree with our appellate colleagues in Magana and Nolasco that Barrett , and its use of the rational basis standard, governs our case. ( Magana, supra , 76 Cal.App.5th at p. 324, 291 Cal.Rptr.3d 394 ; Nolasco, supra , 67 Cal.App.5th at p. 225, 281 Cal.Rptr.3d 880 ["we choose 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"].) However, in doing so, we do not suggest that the rights to a jury trial advisement and personal jury trial waiver are only marginally significant or that the rational basis standard is toothless. As powerfully explained by Justice Liu in his Barrett concurrence/dissent: "Whether or not an advisement alters the ultimate choice to proceed with or without a jury, it expresses the legal system's respect for the individual as a participant in, and not a mere object of, the commitment proceedings. For those who are capable of understanding it, an advisement by the court recognizes their dignity as well as their ability to comprehend and possibly participate in an important aspect of a proceeding that may adversely and irreversibly shape the rest of their lives. Having extended this recognition to some persons with mental [disorders], the Legislature must have an actual, considered rationale for not extending it to others." ( Barrett, supra , 54 Cal.4th at p. 1149, 144 Cal.Rptr.3d 661, 281 P.3d 753 (conc. & dis. opn. of Liu, J.).)
With this in mind, we return to the record to determine whether it contains a constitutional justification for the state's failure to grant SVPA defendants the same rights to a jury advisement and personal jury trial waiver as the MDO and NGI statutes. Because defendant did not raise his equal protection claim below, the People were unaware of the need to make this showing in the appropriate venue. Nonetheless, the People identify two possible rationales in their respondent's brief for this legislative difference: (1) the Legislature could have determined that SVP's as a class pose a greater safety risk to society than MDO's or NGI's, warranting weaker jury trial rights; and (2) the Legislature could have determined "an alleged SVP's right to a fair trial would be best protected by a judge indisputably capable of examining such highly inflammatory evidence in an impartial [manner]" rather than a jury.
The People rely on the fact that the SVPA expressly provides that if a jury trial is demanded, "[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." (§ 6600, subd. (a)(3).) According to the People, this jury admonishment requirement "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."
Neither rationale is sufficient for purposes of rational basis review. First, as aptly stated by our appellate colleagues in Washington and Magana , "[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, supra , 72 Cal.App.5th at p. 474, 287 Cal.Rptr.3d 352 [distinguishing McKee II , wherein the reviewing court affirmed the trial court's finding that the People had met their burden to show SVP's pose a greater danger to society than MDO's and NGI's, thereby justifying differential treatment as to the commitment term and burden to obtain release from commitment]; Magana, supra , 76 Cal.App.5th at p. 407, 291 Cal.Rptr.3d 394.)
Moreover, given the central role of the jury trial in our legal system, we also have difficulty accepting that our Legislature would deem it necessary or appropriate to discourage jury trials in order to protect an alleged SVP's access to a fair trial. In defendant's words, "[s]uch a cynical view of juries is contrary to the long line of authority holding that the right to a jury trial is ‘fundamental to the American scheme of justice.’ (See, e.g., Ramos v. Louisiana (2020) ––– U.S. –––– [140 S.Ct. 1390, 1397] 206 L.Ed.2d 583.)"
However, while rejecting these arguments, we nonetheless conclude in light of defendant's delay in raising his equal protection claim that remand is necessary to give the People a meaningful opportunity to demonstrate a valid constitutional justification for the SVP's differential legislative treatment. (See McKee I, supra , 47 Cal.4th at pp. 1208–1210, 104 Cal.Rptr.3d 427, 223 P.3d 566 ; see also Magana, supra , 76 Cal.App.5th at p. 324, 291 Cal.Rptr.3d 394.) There may indeed be differences between individuals facing commitment under the SVPA and individuals facing commitment under the MDO/NDI statutes that warrant categorical distinctions among these groups with respect to these jury trial rights. (See Barrett, supra , 54 Cal.4th at p. 1110, 144 Cal.Rptr.3d 661, 281 P.3d 753 ["an equal protection violation does not occur merely because different statutory procedures have been included in different civil commitment schemes"].) Given the importance of this issue, we decline to decide it on an incomplete factual record. In the meantime, we conditionally affirm the trial court's order declaring defendant to be an SVP and committing him to the State Department of State Hospitals for an indeterminate term.
D. Any error would not be harmless.
Last, we reject the People's claim that remand is not necessary because any failure of the trial court to advise defendant of his rights to a jury trial and to obtain a personal waiver of this right was harmless error.
The Magana court, relying on People v. Blackburn (2015) 61 Cal.4th 1113, 1134–1136, 191 Cal.Rptr.3d 458, 354 P.3d 268, held that a trial court complying with a statutory jury trial waiver requirement would commit reversible error unless the record affirmatively showed a valid waiver. ( Magana, supra , 76 Cal.App.5th at p. 327, 291 Cal.Rptr.3d 394 ; Blackburn, supra , at p. 1136, 191 Cal.Rptr.3d 458, 354 P.3d 268 ["trial court's failure to properly advise an MDO defendant of the right to a jury trial does not by itself warrant automatic reversal. Instead, 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"].) Because the record there was silent on the issue, the Magana court reversed and remanded to the trial court to litigate the defendant's equal protection claim. ( Magana , at p. 327, 291 Cal.Rptr.3d 394.)
The same circumstances exist here. The record reflects that, on February 7, 2018, the trial court asked whether either side wished to waive a jury trial, even though the SVPA did not require the court to make this inquiry. In response, defense counsel waived a jury trial on defendant's behalf, and the court accepted it. At a subsequent pretrial conference on March 22, 2018, which defendant did not attend, defense counsel "confirm[ed] it is a court trial, not a jury trial," before adding defendant was "wavering if he even wants to come to court at this point."
Nothing in this record affirmatively demonstrates that defendant was fully advised of his rights to a jury trial or that he made a knowing and intelligent waiver of such right. To the contrary, he was not present when his counsel offered a waiver on his behalf. As such, following Blackburn and Magana , we decline to find harmless error on a silent record and, instead, remand to the trial court to litigate defendant's constitutional challenge.
DISPOSITION
The order declaring defendant to be an SVP and committing him to the State Department of State Hospitals for an indeterminate term is conditionally affirmed. The matter is remanded to the trial court to provide defendant an opportunity to raise his equal protection challenge to the SVPA's jury trial provisions. If, on remand, the trial court determines there is an equal protection violation, the court shall vacate the order declaring defendant to be an SVP and set the matter for a jury trial unless, after a full advisement by the court, he knowingly and intelligently waives his right to have a jury decide his case.
WE CONCUR:
Simons, J.
Burns, J.