Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC485829 Jean P. Leonard, Judge.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Following a court trial on March 3, 2009, defendant and appellant John Edward McMahan (McMahan) was found to be a danger to the health and welfare of others within the meaning of the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The court ordered McMahan committed to the custody of the state Department of Mental Health. On appeal, he contends he was never personally advised of his right to a jury trial and there is no evidence that he personally waived such right.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS
McMahan has three predicate offenses. The first was a 1981 rape that occurred in Missouri when he was 22 years old. Upon his release in 1989, he came to California and was arrested for attempted rape of a woman in a swimming pool in Riverside County. After he was sentenced to state prison, he was charged and convicted of assault with intent to commit rape of a female prison counselor at Avenal State Prison in 1990. There was another sexual offense, but it was not a predicate offense. It occurred shortly before the 1989 offense and involved a situation in which McMahan allegedly solicited a woman for an act of oral copulation.
McMahan is now 51 years old.
Clinical and forensic psychologist Eric Simon, Ph.D., and clinical psychologist Michael Musacco, Ph.D., testified. Both discussed the predicate offenses and opined that they were predatory in nature, as the victims were not known to McMahan. Both diagnosed him as having paraphilia “not otherwise specified,” sexual activity with nonconsenting partners, and voyeurism. Dr. Simon testified that McMahan is compulsively fixated on, and sexually aroused by, raping women. Dr. Musacco opined that McMahan represents a serious well-founded risk of re-engaging in sexually violent predatory criminal behavior.
Dr. Musacco did not include nonconsent; however, he testified that McMahan’s criminal activities have been exclusively sexual in nature.
McMahan did not testify.
II. DISCUSSION
On July 18, 2008, McMahan and his counsel were present when the “Hearing re Trial” was set for March 3, 2009. The minutes note that the “Hearing is for Court Trial.” Again on October 1, 2008, McMahan and his counsel were present at the hearing regarding probable cause. The minutes note: “Counsel stipulate: SUBMITT [sic] TO THE COURT 6600 WI.” Finally, on October 15, 2008, a request for continuance was filed. Both McMahan and his counsel signed the request that identified the pending trial of the SVPA petition as a “court trial.” On appeal, McMahan contends the record is void of any evidence indicating he was ever personally advised of his right to a jury trial, and that he personally waived the same. Thus, McMahan seeks reversal of the court’s judgment.
The Sixth Amendment of the United States Constitution states, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” Thus, the federal right to jury trial expressly extends only to criminal prosecutions.
Article I, section 16 of the California Constitution provides: “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict, a jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” Thus, in this state, the right to a jury is afforded to both criminal and civil litigants. However, a criminal defendant’s right to a jury trial may be waived only by his or her own express consent in open court, whereas a civil litigant’s right may be waived as legislatively prescribed.
While extended commitment proceedings are generally civil in nature, they are distinguished from ordinary civil actions. Rather, they are special proceedings because they are neither an action at law nor a suit in equity. (Code Civ. Proc., §§ 22, 23 [actions are ordinary proceedings by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense; every other remedy is a special proceeding].) They are initiated by a petition “‘independently of a pending action’” and are “‘of a character unknown at common law.’” (People v. Rowell (2005) 133 Cal.App.4th 447, 451 (Rowell).) “‘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 and not of constitutional right. [Citation.]’ [Citations.]” (Id. at pp. 451-452.)
According to the Supreme Court of California, a section 6600 et. seq. proceeding is a special proceeding of a civil nature rather than a criminal action. (People v. Yartz (2005) 37 Cal.4th 529, 532 [an “SVPA civil commitment proceeding is a special proceeding of a civil nature, and not a ‘civil suit’ under Penal Code section 1016, former subdivision (3)” (kinds of pleas)]; People v. Allen (2008) 44 Cal.4th 843, 860 (Allen).) This court has agreed. (People v. Dixon (2007) 148 Cal.App.4th 414, 442 [Fourth Dist., Div. Two] [“a proceeding under the SVPA is civil in nature”].) Section 6603 governs the right to a jury trial in SVPA cases. That section mandates that the truth of an SVPA petition be resolved by a court trial unless one of the parties demands a jury. The clear language notes that McMahan was “entitled” to a jury trial if he demanded one. (§ 6603, subds. (a), (e).) However, there is nothing in the record that definitively shows McMahan was apprised of this entitlement.
Section 6603, in relevant part, provides: “(a) A person subject to this article shall be entitled to a trial by jury,... [¶] (b) The attorney petitioning for commitment under this article shall have the right to demand that the trial be before a jury. [¶]... [¶] (e) If 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.”
Instead, the record before this court shows that defendant and his counsel were present when the hearing was set as a court trial, and that defense counsel submitted to a court trial. There is no evidence that defendant was made aware of his right and decided whether or not to exercise it. Rather, in the trial brief prepared on behalf of McMahan, defense counsel merely acknowledged the fact that McMahan was entitled to a jury trial, but stated: “There is no requirement for personal waiver of right to jury trial; counsel may withdraw for client.”
The People point to the document entitled Request for Continuance, which was filed on October 15, 2008. Because it was signed by both McMahan and defense counsel, and it identified the then pending trial as a court trial, the People argue that McMahan’s signature indicates his decision to have the underlying SVPA petition litigated as a court trial. While McMahan’s signature may suggest he knew of his right to a jury trial and opted to waive it, we cannot say it is conclusive proof of such decision. Lawyers present many documents to their clients for signature without fully explaining the document or making sure the client has read and understood it. Here, we choose to err on the side of caution.
In People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas), the defendant claimed his section 6500 (sometimes referred to as the Mentally Retarded Persons Law) commitment had to be reversed because the record failed to “show an advisement and waiver of the right to a jury trial on the issues of dangerousness and retardation....” (Alvas, at p. 1462.) The court concluded the contention had to be “sustained pursuant to both the equal protection and the due process clauses of the federal and state Constitutions (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a)) and as a consequence this matter must be reversed and remanded for retrial.” (Id. at p. 1463.) Specifically, the Alvas court said, “We think it is beyond dispute that the right to a jury trial in adult involuntary commitment proceedings is a right of constitutional dimension. Where ‘a constitutional right exists, it must be observed unless waived and... a waiver implies, among other things, a knowledge that the right existed.’ [Citations.] Consequently, a defendant proceeded against under section 6500 must be advised of his right to a jury trial.” (Id. at pp. 1465.)
We agree with the Alvas court. Because the record is void of any evidence as to whether McMahan had knowledge of his right to a jury trial, we must reverse.
The People disagree and urge us to apply the decision in Rowell. In that case, our colleagues in the Third District addressed the defendant’s claim that the trial court erred by accepting his counsel’s representation, in a written declaration filed under penalty of perjury, that the defendant no longer wanted a jury trial in his SVPA proceeding. (Rowell, supra, 133 Cal.App.4th at pp. 450, 452.) Noting that an SVPA proceeding is civil in nature and not subject to the state and federal constitutional protection of the right to jury trial afforded to criminal defendants, the court held the right was validly waived by defense counsel, and that the defendant’s personal waiver was not required. (Rowell, supra, at pp. 453-454.)
McMahan urges us not to follow Rowell. According to McMahan, Rowell should not be followed because (1) the same court later issued an opinion, which called the Rowell decision into question (People v. Bailie (2006) 144 Cal.App.4th 841), and (2) Rowell failed to engage in a four-part analysis, as was done in Allen to determine what process is due before deciding that the court was not required to personally advise a sexually violent predator defendant of his right to a jury trial. We choose not to follow Rowell because the issue in that case wasn’t whether defendant had been advised of his right to a jury trial. Rather, the issue was whether defendant must personally waive his right to a jury trial. (Rowell, supra, 133 Cal.App.4th at pp. 452-453.) Before we can reach the issue of waiver, we must first address the issue of advisement of the right to a jury trial.
The four relevant factors are: “‘(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. [Citation.]’ [Citation.]” (Allen, supra, 44 Cal.4th at pp. 862-863.)
Because we are reversing the judgment on the grounds that the record before this court is void of any evidence which conclusively shows that McMahan had knowledge of the existence of his right to a jury trial, we need not address any other issues raised before this court.
At oral argument, McMahon cited the Supreme Court’s recent decision in People v. McKee (Jan. 28, 2010, S162823) 47 Cal.4th 1172 [2010 Cal. Lexis 586]. In that case, our high court held that the imposition of unequal civil commitment terms on sexually violent predators must be shown to meet equal protection standards. (Id. at pp. 1208-1211.)
III. DISPOSITION
The judgment is reversed.
We concur: GAUT, J.
KING, J., Concurring.
I agree that the present commitment must be reversed. I write separately because I do not agree with all aspects of the majority’s analysis. A person subject to commitment under the Sexually Violent Predators Act (SVPA) has a right to a trial by jury. (Welf. & Inst. Code, § 6603, subd. (a).) The SVPA does not explicitly require that the person accused of being a sexually violent predator (SVP) be advised of this right. From the present record, it appears that defendant was never advised of this right and did not know of the right. Not being informed of this right effectively negates the right itself.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Other California civil commitment schemes recognize this relationship between the right and the advisement of the right and expressly provide for such advisement. Thus, even if the failure to advise defendant of his right to a jury trial may arguably not independently violate a constitutional right, the disparate treatment afforded similarly situated persons in this regard violates defendant’s right to equal protection of the law. Furthermore, and contrary to the People’s argument, because defendant was not so advised, he has not forfeited the argument for purposes of appeal.
Defendant argues that his equal protection rights were violated by not being advised of his right to a jury trial; specifically, he submits that in not being advised of his right to a jury trial he received disparate treatment as an alleged SVP compared to other similarly situated civil committees. With this I agree.
Our state Supreme Court recently reaffirmed the application of equal protection principles in evaluating civil commitment statutes such as the SVPA. In People v. McKee (2010) 47 Cal.4th 1172, 1199, the court stated that “[d]ecisions 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. (See Baxstrom v. Herold (1966) 383 U.S. 107... [when the state seeks to civilly commit a person after expiration of prison term, equal protection is violated when it does not afford a jury trial as for other civil committees];... Humphrey v. Cady (1972) 405 U.S. 504, 509... [habeas corpus petitioner stated prima facie case that Wisconsin statute that civilly committed sex offenders violated equal protection by not providing jury trial available under the general civil commitment statute];... In re Gary W. (1971) 5 Cal.3d 296, 307-308... [those committed by the former Youth Authority and subsequently civilly committed when they reach the age of 21 must pursuant to the equal protection clause be granted a jury trial afforded others civilly committed]....)”
“‘“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law 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.’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
While individuals subject to the various civil commitments may not be similarly situated in all regards, the issue before us is whether they are similarly situated for purposes of being advised of their right to a jury trial.
Here, defendant was civilly committed under section 6600 et seq. Relative to defendant’s right to a jury trial, section 6603, subdivision (a) provides: “A person subject to this article shall be entitled to a trial by jury....” Subdivision (e) states: “If 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.” Thus, there is no statutory provision that defendant be advised of his right to a jury trial.
In contrast to the SVPA, other civil commitment schemes expressly provide that the court shall advise the person subject to commitment of his or her right to a jury trial. Under the Mentally Disordered Offender (MDO) Act, a person alleged to be an MDO is entitled to a jury trial on the issue and the “court shall advise the [person] of his or her right... to a jury trial.” (Pen. Code, § 2966, subd. (b); see also Pen. Code, § 2972, subd. (a) [MDO must be informed of right to jury trial in connection with a hearing for continued treatment].) Under the Lanterman-Petris-Short (LPS) Act: “At the time of filing a petition for postcertification treatment the court shall advise the person named in the petition of his right... to demand a jury trial.” (Welf. & Inst. Code, § 5302.) A trial to extend a juvenile detention based upon a mental disorder “shall be by jury unless the right to a jury trial is personally waived by the person, after he or she has been fully advised of the constitutional rights being waived....” (Welf. & Inst. Code, § 1801.5, italics added.) If a petition is filed to extend the commitment of a person found not guilty by reason of insanity (NGI), “the court shall advise the person named in the petition of the... right to a jury trial.” (Pen. Code, § 1026.5, subd. (b)(3).) And under the former Mentally Disordered Sex Offenders (MDSO) Act, when a petition to commit an alleged offender was filed, “the court shall advise the patient named in the petition of his... right to a jury trial.” (Welf. & Inst. Code, former § 6316.2.)
Although not codified, two courts have recognized the right to be advised of a right to a jury trial in a section 6500 proceeding. (See People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas); People v. Bailie (2006) 144 Cal.App.4th 841 (Bailie).) Recently, the Sixth District disagreed with Alvas and Bailie on this point. (See People v. Barrett (2009) 181 Cal.App.4th 196, (Barrett).) Barrett will be discussed, infra.
Relative to being advised of the right to a jury trial, I see no reasonable basis for differentiating between an alleged SVP and other civil committees.
In Alvas, supra, 221 Cal.App.3d at page 1463, the court, in relying on People v. Feagley (1975) 14 Cal.3d. 338, 352, applied a compelling state interest test in determining whether there was justification for disparate treatment relative to a committee’s right to a jury trial. The court in Barrett applied a rational basis test.
Initially, I note that each of the involved civil commitments entail a deprivation of liberty. As stated in Addington v. Texas (1979) 441 U.S. 418, 425, a “civil commitment for any purpose constitutes a significant deprivation of liberty....” The deprivation of liberty has been repeatedly recognized by California courts. (See, e.g., People v. Otto (2001) 26 Cal.4th 200, 209 [SVP commitment under Welf. & Inst. Code, § 6600]; People v. Allen (2007) 42 Cal.4th 91, 98 [MDO commitment under Welf. & Inst. Code, § 2960]; In re Howard N. (2005) 35 Cal.4th 117, 127 [juvenile detention extension based upon mental or physical disorder under Welf. & Inst. Code, § 1800]; People v. Burnick (1975) 14 Cal.3d 306, 319 [commitment under former MDSO statute, Welf. & Inst. Code, former § 6300]; In re Moye (1978) 22 Cal.3d 457, 465 [NGI extension commitment under Pen. Code, § 1026.5]; Alvas, supra, 221 Cal.App.3d at pp. 1464-1465 [commitment of mentally retarded persons under Welf. & Inst. Code, § 6500].) Indeed, because a person committed under the SVP is subject to an indefinite commitment, the significant deprivation of liberty would seem to more strongly militate in favor of being advised of the right to a jury trial.
Furthermore, the various commitment schemes entail essentially similar factual criteria. Under the SVPA, the People must prove beyond a reasonable doubt that: (1) the person subject to commitment has been convicted of at least one sexually violent offense; (2) he or she has been diagnosed with a mental disorder; and (3) the mental disorder makes it likely that he or she will engage in sexually violent behavior in the future. For purposes of commitment as an MDO, the People must prove beyond a reasonable doubt that: (1) the defendant has a severe mental disorder; (2) his or her severe mental disorder is not in remission or cannot be kept in remission without treatment; and (3) by reason of his or her mental disorder he or she represents a substantial danger of physical harm to others. (Pen. Code, § 2972, subd. (c).) For purposes of a juvenile detention extension, it must be found that the juvenile has a mental or physical disorder which causes him or her to be physically dangerous to the public. (Welf. & Inst. Code, § 1801.5.) Under the former MDSO statute, the prospective committee had to suffer from a mental disorder which predisposed him or her to commit sex crimes to such a degree that he or she was a danger to others. (Welf. & Inst. Code, former § 6300.) For an LPS confinement, the person must present a demonstrated danger of inflicting substantial physical harm upon others as a result of a mental disorder or mental defect. (Welf. & Inst. Code, § 5300.)
See People v. Starr (2003) 106 Cal.App.4th 1202, which held that pedophilia can be a mental disorder for purposes of an MDO commitment, as well as an SVP commitment.
A comparison of the various civil commitment schemes reveals no rational basis for disparate treatment between an alleged SVP and other civil committees as to the advisal of the right to a jury trial. The persons subject to these laws are, for this purpose, similarly situated. All have a significant liberty interest at stake and are entitled to a jury trial. Moreover, the factual inquiry is basically identical: does the defendant have a mental disorder which causes him or her to be dangerous to others? All are similarly situated and, as such, are entitled to the same procedural safeguards, including advisal of the right to a jury trial.
Even if the right to a jury trial in an SVP proceeding is solely statutory, the right cannot be denied the defendant without providing due process. An analogous issue was presented in Conservatorship of David L. (2008) 164 Cal.App.4th 701 (David L.). That case involved a proceeding to appoint a conservator under the LPS Act. The LPS Act provides prospective conservatees with a right to the effective assistance of counsel. (Id. at p. 710.) The prospective conservatee contended that this statutory right entitled him to procedural protections guaranteed by the Constitution. The court held that it did. It explained: “We need not decide whether a proposed conservatee has a constitutional right to effective assistance of counsel. Even if a proposed conservatee has no constitutional right to effective assistance of counsel, once such a right has been conferred, a proposed conservatee has an interest in it which is protected by the due process clause of the federal Constitution. (Wilson v. Superior Court (1978) 21 Cal.3d 816, 823... [‘a substantial state-created right, even though not constitutionally compelled, may not be arbitrarily withheld’]; People v Williams (2003) 110 Cal.App.4th 1577, 1591... [‘Even though [the defendant’s] right to self-representation [in MDO (mentally disordered offender) proceedings] was only of statutory origin, once the state has given him such a right, he had an interest in it protected by due process principles’]; cf. People v. Otto (2001) 26 Cal.4th 200, 209... [‘Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP [sexually violent predator] proceeding is entitled to due process protections.’].)” (Ibid.) Here, although defendant’s right to a jury trial may be of statutory origin, once it is granted it cannot be taken from the defendant without due process. It is no less fundamental and no less worthy of protection than the right at issue in David L. Each of the statutory schemes discussed above, save and except the SVPA, provide for a jury trial with the due process protection that the defendant be advised of the right to a jury trial. In that a defendant under the SVPA is not provided this same due process right as it relates to his statutory right to a jury trial, he is deprived of equal protection.
In Alvas, supra, 221 Cal.App.3d 1459, the Court of Appeal reversed a civil commitment order on equal protection grounds because the defendant was not informed of his right to a jury trial. The court stated: “[N]o compelling reason exists for the disparate treatment in involuntary commitments between the two classes by providing those alleged to come within the LPS Act with the procedural safeguard of advisement of the right to a jury trial while denying it to those defendants charged with dangerous mental retardation. We conclude that equal protection requires that a defendant in a section 6500 proceeding be advised of his right to a jury trial.” (Id. at p. 1464.) This language applies with equal force to the present case. (See also People v. Colvin (1981) 114 Cal.App.3d 614, [defendant committed under former MDSO statute was denied equal protection of the laws because the court did not inform him of his right to a jury trial when LPS statute required such an advisement]; Bailie, supra, 144 Cal.App.4th at p. 847 [§ 6500 commitment reversed where “[t]he totality of present circumstances does not suggest defendant had knowledge that his jury trial right existed.”].)
Furthermore, any argument that an alleged SVP would not understand the advisal because of his or her mental disorder is misplaced. There is no reason that an alleged SVP would understand the advisal any less than other civil committees for whom advisement is statutorily mandated.
I would therefore conclude that defendant was deprived of his equal protection rights in that he was not advised of his statutory right to demand a jury trial.
In this regard, see Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030. “The unstated claim implicit in the conservator’s argument is that it should be presumed that counsel informed Benvenuto of his right to jury trial.... [¶]... Of course, it is a duty of counsel to inform the conservatee of his procedural rights in the impending proceedings. However, given the gravity of the matter in issue it may not be presumed on a silent record that counsel has accomplished this task.” (Id. at p. 1037, fn. omitted.)
The People rely extensively on People v. Rowell (2005) 133 Cal.App.4th 447 for the proposition that defense counsel can waive an alleged SVP’s right to a jury trial. That case is inapposite. At issue there was not whether the defendant knew of his right to a jury trial. It was clear that the defendant did know of his right to a jury trial. Initially, the defendant did request a jury trial, which was thereafter withdrawn based on defense counsel’s declaration that the defendant wanted a court trial. (Id. at p. 452.) Indeed, the same court that decided Rowell explained that “[i]t is not necessary to determine whether Rowell and its antecedents have undermined Alvas’s due process analysis. Alvas’s equal protection analysis remains sound, inasmuch as the Legislature has not amended sections 5302 or 6500 to remedy the disparate treatment of jury trial advisements.” (Bailie, supra, 144 Cal.App.4th at p. 847.)
Most recently, the court in Barrett, supra, 181 Cal.App.4th 196 discussed the advisement of the right to a jury trial in a section 6500 commitment proceeding within the context of equal protection. And, while I would not “part company” with Alvas and Bailie as the Barrett court did (Barrett, supra, at p. 215), the Barrett court nonetheless explained its holding in a well-reasoned manner. At issue in Barrett was whether an individual suffering from mental retardation under section 6500 was similarly situated to an LPS civil committee for purposes of the advisement of the right to a jury trial. In finding a rational basis for the disparate treatment as to the advisement of the right to a jury trial, the court, quoting extensively from Heller v. Doe (1993) 509 U.S. 312, stated: “‘“‘[M]ental retardation is... a learning disability and training impairment rather than an illness...’”’ and it is therefore not subject to treatment that is available to the mentally ill. [Citation.] The court found that these differences established a rational basis for justifying disparate treatment with respect to the burden of proof required to commit. [Citation.] In doing so, the court recognized that the ‘“assumptions underlying these rationales [could be] erroneous, but the very fact that they are ‘arguable’ is sufficient, on rational-basis review, to ‘immunize’ the [legislative] choice from constitutional challenge.” [Citation.]’ [Citation.] [¶] The same can be said here with respect to the statutory right in [LPS Act] commitment proceedings to an advisement of the right to trial by jury. The noted factual differences between persons with mental retardation and persons with mental disorders or illness are sufficient to distinguish these classes of persons on this question and to rationally justify no such requirement in section 6500 proceedings. Given these differences, particularly as they relate to cognitive abilities, it is not irrational to afford mentally ill persons facing commitment more due process in the form of an affirmative advisement of the jury trial right.” (Barrett, supra, 181 Cal.App.4th at pp. 214-215.)
I would not “part company,” because as expressed in Alvas, “‘[i]f the person is so mentally retarded as to be unable to comprehend the advisal of the right [to a jury trial], the record should affirmatively reflect that fact... [with that determination being] made by the trial judge based upon competent evidence.’ [Citation.]” (Alvas, supra, 221 Cal.App.3d at p. 1465.)
While the Barrett court did find a rational basis for disparate treatment between an LPS committee and a section 6500 committee, its discussion and holding support the conclusion that an LPS committee and an SVP committee are in substantially similar positions for purposes of the advisement of the right to a jury trial. Both statutory schemes deal with individuals allegedly suffering from a mental disorder or illness which makes them dangerous to others. There is nothing intrinsic in either commitment that would lead one to conclude that the alleged committees are not able to understand the advisement as it relates to a jury trial.
In addition to finding an equal protection violation, I would also conclude the issue has not been forfeited or waived for purposes of this appeal. The People, relying on People v. French (2008) 43 Cal.4th 36, 46 and People v. Vera (1997) 15 Cal.4th 269, 276 through 278, conclude that because defendant was silent and did not object at the trial level, he has forfeited the argument. I disagree.
In French, the Supreme Court, relying primarily on Vera and People v. Saunders (1993) 5 Cal.4th 580, discusses the rule of forfeiture as it relates to the statutory right to a jury trial on enhancements. The court concludes, however, that the defendant was constitutionally entitled to a jury trial and, therefore, did not forfeit the argument by failing to object below. More to the point is Vera and Saunders. Both cases dealt with the defendants’ statutory rights to a jury trial on various enhancements. In both cases the defendants were fully aware of their right to a jury, and did not object when the respective courts proceeded in the absence of a jury. Application of the rule of forfeiture was therefore appropriate.
Here, however, there is no indication that defendant was advised of his right to a jury trial either by the court or defense counsel. Nor is there any indication that he knew of his right to a jury trial. As stated in Conservatorship of Benvenuto, supra, 180 Cal.App.3d: “Preliminarily, we note the conservator’s contention that Benvenuto cannot raise the issue of his right to jury trial advisement. The conservator argues Benvenuto has waived the point by failing to demand a jury trial.... The argument’s persuasiveness depends entirely on the implied premise that the grounds of appeal are known to the appellant when the notice of appeal is filed. In fact that is often not true. It would be an analytical ‘Catch-22’ to presume Benvenuto knew he had the very right of which he complains he was not informed. ‘“Absent an understanding by the patient of the nature of his... rights, it is difficult to perceive how he could knowingly decide whether or not to exercise them.” [Citation.]’ [Citations.]” (Id. at p. 1036; see also Bailie, supra, 144 Cal.App.4th at p. 847 [“‘“a waiver implies, among other things, a knowledge that the right existed.”’ [Citation.] The totality of present circumstances does not suggest defendant had knowledge that his jury trial right existed.”].)
Further, I believe the present commitment should be reversed. The failure to advise defendant of his right to a jury trial, which effectively deprived him of his right to a jury trial, is arguably a structural defect in the proceeding that renders the commitment order reversible per se. Indeed, courts under similar or analogous circumstances have reversed without any discussion of prejudice or harmless error. (E.g., Baxstrom v. Herold, supra, 383 U.S. at p. 115; Humphrey v. Cady, supra, 405 U.S. at pp. 511-512; Alvas, supra, 221 Cal.App.3d at pp. 1464, 1468; Bailie, supra, 144 Cal.App.4th at p. 847; People v. Colvin, supra, 114 Cal.App.3d at pp. 624-625.)
If the error is subject to harmless error analysis, because the error is a violation of a federal constitutional right, the applicable standard is the Chapman test: the error is reversible unless the respondent can prove beyond a reasonable doubt that the error complained of did not contribute to the judgment. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Hurtado (2002) 28 Cal.4th 1179, 1194.) The People cannot meet this test. First, there is nothing in the record—let alone proof beyond a reasonable doubt—that establishes defendant would have waived his right to a jury if he had been informed of such right. Second, we cannot, without speculating, know what a jury would have decided in this case if one was empanelled. Under the Chapman test, we are not concerned with “whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. If such a possibility exists, reversal is required.” (People v. Lewis (2006) 139 Cal.App.4th 874, 887 [Fourth Dist., Div. Two].) Speculation about a hypothetical jury’s action, therefore, cannot satisfy the People’s burden under Chapman. (People v. Flood (1998) 18 Cal.4th 470, 494, citing Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Because the People cannot establish that there is no reasonable possibility that the failure to advise defendant of his right to a jury trial might have contributed to the commitment order in this case, the order must be reversed.
I additionally think the opinion should be certified for publication pursuant to California Rules of Court, rule 8.1105(c)(3). In light of an indeterminate commitment for alleged SVPs, the right to be advised of a jury trial is an issue of continuing interest. This is especially so in light of People v. Allen (2008) 44 Cal.4th 843 [extending the right to testify to alleged SVPs], and the recent cases of McKee and Barrett.
At oral argument, the People referenced a request for continuance signed by defendant included in the clerk’s transcript, from which we are to infer that defendant knew of his right to a jury trial. The stipulation for continuance references a “court trial.” I don’t believe we can read into that the fact that defendant was advised of his right to a jury trial.