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.).
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Defendant challenges this commitment order on three grounds: (1) the lack of substantial evidence to support the trial courts 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 courts 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
I. Defendants 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,
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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 “ ‘Fing 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.
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.
Defendants 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. Defendants 2020 SVPA Bench Trial.
Following several additional continuances, defendants bench trial began October 5, 2020.
A. Investigator Kevin Bailey.
Investigator Kevin Bailey, who interviewed
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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.
Defendants 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 defendants obsessions with sex and pornography and increased his sexual disinhibition. Soon, his aunt had enough and defendant went to live with his grandfather. Defendants grandfather also became overwhelmed with defendants 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 girls home and tried unsuccessfully to enter through a door. Defendant acknowledged to Bailey that had the door been unlocked, he “mightve [pulled her out of the house and] raped her ․” Instead, the girls 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. Defendants 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 itll 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, its possible, yes. I suppose it could happen.”
B. Expert Witnesses.4
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. Defendants timely appeal followed.
DISCUSSION
Defendant contends the trial courts 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 courts 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.
I.-II.**
The SVPA provides for the indefinite civil commitment of a convicted sexual offender upon completion of his or her prison term if, after trial, he or she is found beyond a reasonable doubt to be an SVP.
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(§ 6600 et seq.; People v. Williams (2003) 31 Cal.4th 757, 764, 3 Cal.Rptr.3d 684, 74 P.3d 779.) “The purpose of the SVPA is to use a civil commitment to treat SVPs for their current mental disorders and to reduce the threat of harm otherwise posed to the public. [Citation.] No punitive purpose was intended. (Stats. 1995, ch. 763, § 1.)” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1152, 88 Cal.Rptr.2d 696.)
An offender qualifies as an SVP for purposes of the Act if he or she “has been convicted of a sexually violent offense against one or more victims and ․ has a diagnosed mental disorder that makes [him or her] 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)(1).) A “ ‘[d]iagnosed mental disorder’ ” is “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
Thus, under the SVPA, the prosecutor must prove beyond a reasonable doubt that the offender (1) has been convicted of a sexually violent offense; (2) has a diagnosed mental disorder; (3) as a result of this mental disorder, is a danger to the health and safety of others in that he or she is likely to engage in acts of sexual violence; and (4) it is necessary to keep him or her in a secure facility to ensure others’ safety. (People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 194–195, 78 Cal.Rptr.3d 711; CALCRIM No. 3454.) Here, defendant contends the prosecution did not meet its burden as to the third and fourth prongs of this standard.
A. Standard of Review.
Where a defendant challenges the sufficiency of the evidence supporting his or her commitment under the Act, courts apply the same test that applies in reviewing the sufficiency of the evidence supporting a criminal conviction. (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088, 153 Cal.Rptr.3d 10.) Accordingly, we examine the entire record in the light most favorable to the commitment order to determine whether it contains substantial evidence from which the trier of fact could find the underlying facts true beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.) “Substantial evidence” means “ ‘ “evidence which is reasonable, credible, and of solid value ․” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396, 133 Cal.Rptr.2d 561, 68 P.3d 1 (Maury).)
As the reviewing court, we accept all logical inferences the trier of fact might have drawn from the evidence, both direct and circumstantial. (Maury, supra, 30 Cal.4th at p. 396, 133 Cal.Rptr.2d 561, 68 P.3d 1.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (Id. at p. 403, 133 Cal.Rptr.2d 561, 68 P.3d 1.) Ultimately, it is the trier of fact, not the appellate court, that must be convinced of the findings beyond a reasonable doubt. “ ‘ “If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 933, 251 Cal.Rptr. 467, 760 P.2d 996.)
B. Evidentiary Record.
1. Prosecutorial Experts.
The prosecution presented testimony from two forensic psychologists with the State Department of State Hospitals, Drs. Karlsson and Miculian, to opine on defendants qualifications as an SVP.
Dr. Karlsson had completed over 500 SVP evaluations for the State Department of State Hospitals. Dr. Karlsson evaluated defendant in 2017 and again in 2019. Both times, he diagnosed defendant with major or mild neurocognitive disorder due to traumatic brain injury. Further, Dr. Karlsson opined in 2019 that defendant remained a “likely risk” to engage in sexually violent predatory conduct due to his diagnosed mental disorder unless he remained in custody to complete his sex offender treatment program. While defendant had been actively engaged in this program, he had not yet completed it.
In reaching these opinions, Dr. Karlsson evaluated defendant with several actuarial instruments designed to assess a persons risk factors associated with sexual reoffending. Defendant scored a five on the Static-99 instrument, placing him in the above average group of offenders: 14–17 percent likely to reoffend within five years based on various static factors. Based on the SRA-FV instrument, which considers dynamic factors, defendant fell within the “routine group of sex offenders.” However, Dr. Karlsson identified defendant as an “outlier” in that neither the Static-99 nor the SRA-FV instrument was designed for people, such as defendant, with a frontal lobe brain defect. In Dr. Karlssons opinion, due to the nature of defendants injury, his recidivism rate was, in fact, higher (greater than 15 percent) compared to his reference sex offender group.
One of Dr. Karlssons primary concerns in reaching this opinion was defendants current use of pornography at Coalinga and his preference for pornography depicting sexually naïve young women ages 18 to 20, which defendant labeled the “ ‘school-girl type.’ ” This demographic closely matched that of defendants’ victims. To Dr. Karlsson, this fact indicated defendant had not yet matured in his sexual interests.
Of further concern was defendants admission to Dr. Karlsson that he used pornography while in custody to cope with his sexual urges. Yet, defendant acknowledged in 2017 that pornography had been a trigger for committing his offenses and that, if released, he would need to avoid it.
In addition, defendant had not yet completed the final two modules of his treatment program. In the final two modules, defendant would have the opportunity to learn and practice tools for dealing with his triggers in the community that might otherwise increase his chance of recidivism. Due to defendants brain injury, Dr. Karlsson opined that defendant required more time to absorb the treatment materials and engage in individualized treatment (including “neuro-rehab”) before being released. Until defendant completes “the entire [sex offender treatment] program at Coalinga,” he would not be ready for release.
Lastly, Dr. Karlsson acknowledged defendant had not acted out sexually in the last three years and had progressed in therapy. However, he cautioned defendant remained emotionally impaired due to his injury. And, while defendant is “doing really well when hes in a structured environment like Coalinga,” it is not yet clear that he would have the same success in an uncontrolled environment.
Dr. Miculian, a psychologist with the State Department of State Hospitals who had conducted over 1,000 SVP evaluations,
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evaluated defendant in 2016, 2017 and 2019. He diagnosed defendant each time with major mental neurocognitive disorder due to a traumatic brain injury, one aspect of which “could be an inability to control ones sexual impulses.”
Similarly to Dr. Karlsson, Dr. Miculian opined defendant was likely to reoffend if released. Dr. Miculian identified two major risk factors that increased the likelihood of his reoffending: (1) “spending time with teenagers whom he thought looked older than they were” and (2) regularly looking at pornography. At Coalinga, defendant continued to watch pornography three to four times weekly for one to two hours, which Dr. Miculian found very problematic. Dr. Miculian also identified as risk factors defendants lack of any long-term intimate relationship and his poor problem-solving ability due to his injury. Thus, while “[defendant is] less of a risk than he was in 2010 ․, still hes a serious well-founded risk given the nature of his disorder.” Similarly to Dr. Karlsson, Dr. Miculian assigned defendant a score of five on the Static-99 test, placing him in the above average group for reoffending.
Lastly, Dr. Miculian opined that defendant continued to have impulse control issues, explaining, “[T]heres going to be issues with understanding social situations and persistence and not being apathetic.” As such, “[defendant] still continues to need to be in custody so he can persist through more parts of treatment before he is released. I anticipate that after he gets through the treatment in the hospital, that he will comply with the requirements when he is released.”
2. Defense Expert.
Dr. Dempsey, a forensic neuropsychologist, testified for the defense and disagreed with many of the opinions and methods of Drs. Karlsson and Miculian. Dr. Dempsey agreed with Drs. Karlsson and Miculian that defendant scored a five on the Static-99 test and, as such, was an above average risk for reoffending. Similarly, her dynamic testing placed defendant at moderate risk for committing another sexual offense. Yet, while defendant was still in the moderate range for reoffense with regard to static and dynamic factors, Dr. Dempsey opined that “with regard to neuropsychological factors hes in a much lower range.”
Dr. Dempsey, who first evaluated defendant in 2011 in prison, was “astounded” with his improvement when she reevaluated him in 2019. She still diagnosed defendant with neurocognitive disorder for head injury “because he still does have ․ some deficits.” However, based on several neuropsychological tests, Dr. Dempsey found defendant significantly less impaired in executive areas of functioning that included inhibition, impulse control, cognitive flexibility and perseveration. While defendant was not fully healed, he tested in the average range in 2019, while previously “he was in the borderline and impaired levels ․”
Dr. Dempsey also disagreed with Dr. Karlssons decision to “override” his clinical testing in order to assign defendant a higher rate of recidivism based on his injury. According to Dr. Dempsey, his opinion failed to account for the fact defendants brain had healed significantly in the past few years. Dr. Dempsey believed that defendant was no longer volitionally impaired and that his use of porn was “healthy” and not a fixation. Defendant would “do well” in outpatient treatment, in part because he had a stable family life and a large peer group and was intellectually functioning prior to his injury.
C. Substantial evidence proved defendant was likely to reengage in acts of sexual violence.
Based on this record, we reject defendants contention that the prosecution failed to prove beyond a reasonable doubt that, due to his diagnosed mental disorder, he was likely to reoffend.
Under the Act, an offender cannot qualify as an SVP “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).) However, the statute “does not require proof of a recent overt act while the offender is in custody.” (Id., subd. (d).)
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For purposes of the SVPA, the phrase “ ‘likely to engage in acts of sexual violence’ (italics added), as used in section 6601, subdivision (d), ․ requires a determination that, as the result of a current mental disorder which predisposes the person to commit violent sex offenses, he or she presents a substantial danger—that is, a serious and well-founded risk—of reoffending in this way if free.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916, 119 Cal.Rptr.2d 1, 44 P.3d 949 (Ghilotti); People v. Williams, supra, 31 Cal.4th at p. 772, 3 Cal.Rptr.3d 684, 74 P.3d 779 [“ ‘there must be proof of serious difficulty in controlling behavior’ ”].)
Here, all three experts testified defendant had a qualifying mental disorder and posed an above average or moderate risk of reoffending based on various actuarial instruments, including the Static-99, SRA-FV and Stable-2007. The two prosecution experts, Drs. Karlsson and Miculian, further agreed defendant remained likely to reoffend if released before completing his treatment program. They found it particularly troublesome that defendant continued to view pornography three or four times a week for one to two hours at a time and that he preferred the “ ‘school-girl type,’ ” meaning sexually inexperienced young women. Defendants victims were similarly young in age, and he acknowledged that viewing porn contributed to his predatory behavior. Dr. Karlsson and Dr. Miculians shared opinion, supported by the record, constitutes substantial evidence that defendant currently presents a serious and well-founded risk of reoffending. (Ghilotti, supra, 27 Cal.4th at p. 916, 119 Cal.Rptr.2d 1, 44 P.3d 949.)
In so concluding, we acknowledge defense expert, Dr. Dempsey, disagreed with Drs. Karlsson and Miculian and insisted defendant was no longer volitionally impaired. However, this issue was resolved against defendant by the court, acting as trier of fact. It is not our role on appeal to reweigh or reinterpret the experts’ testimony. (People v. Mercer (1999) 70 Cal.App.4th 463, 466–467, 82 Cal.Rptr.2d 723 [“the jury could reasonably believe the evidence of the prosecution witnesses and reject that of the defense witness [that defendant could not control his sexually violent behavior and would likely reoffend if released]”].) Reading the relevant testimony in a light favorable to the trial courts judgment as the law requires (ibid.), there is no cause to favor Dr. Dempseys opinion over theirs.
We also acknowledge defendants point that neither prosecution expert was an expert in the field of neuropsychology, as was Dr. Dempsey. Based on this fact, defendant argues the prosecution failed to offer admissible evidence that he was currently neurocognitively impaired, leaving undisputed Dr. Dempseys testimony that he was not currently neurocognitively impaired. This argument confuses our legal standard. The SVPA required proof that defendant currently had a diagnosed mental disorder. (§ 6600, subd. (a)(1).) There is no dispute that he did. However, the SVPA did not require proof that he was currently neurocognitively impaired. (See People v. Williams, supra, 31 Cal.4th at p. 773, 3 Cal.Rptr.3d 684, 74 P.3d 779 [“ ‘the science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law’ ”].)
Accordingly, for the reasons stated, we affirm the trial courts finding that defendant currently presented a serious and well-founded risk of reoffending if released from custody. (Ghilotti, supra, 27 Cal.4th at p. 916, 119 Cal.Rptr.2d 1, 44 P.3d 949.)
D. Substantial evidence proved it was necessary to keep defendant in custody to ensure the health and safety of others.
Defendant contends substantial evidence also failed to support the courts finding that it was necessary to keep him in custody to ensure the health and safety of others. Defendants argument is based primarily on his “track record” in the hospital of not committing any sexually unacceptable acts. This argument fails for several reasons.
First, as stated ante, the SVPA “does not require proof of a recent overt act while the offender is in custody.” (§ 6600, subd. (d).) Second, notwithstanding the lack of evidence of any recent sexual misconduct, our record contains substantial evidence supporting the courts finding that defendant required further in-custody treatment before he could be safely released into the community. (See CALCRIM No. 3454.)
Dr. Karlsson testified defendants continued porn use, with a preference for “the schoolgirl-type,” was concerning because he “had sex offenses in the past with a certain kinds of girls that he has interest in. To me, this shows that he hasnt really moved on maturely into woman in his own age.” (Sic.) In Dr. Karlssons opinion, defendant also required individualized treatment to address his particular traumatic brain injury, which hindered him from absorbing his treatment materials. And, both Dr. Karlsson and Dr. Miculian opined defendant needed to complete the third and fourth modules of his treatment program in order to learn necessary tools for dealing with his “triggers” once he leaves the institutional setting. Without doing so, defendants impulsivity remained a concern.
Finally, there was evidence defendant had, in the past, declined to participate in certain aspects of his treatment, once because he deemed it unnecessary and another time because he preferred to sleep in. Dr. Dempsey dismissed these incidents. Nonetheless, a “patients refusal to cooperate in any phase of treatment may therefore support a finding that he ‘is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.’ ” (People v. Sumahit (2005) 128 Cal.App.4th 347, 354–355, 27 Cal.Rptr.3d 233.)
Defendant interprets the record as showing that Drs. Karlsson and Miculian preferred he remain in custodial treatment, not that it was necessary. (See Ghilotti, supra, 27 Cal.4th at p. 929, 119 Cal.Rptr.2d 1, 44 P.3d 949 [the SVPA does not require an individual “to complete a prescribed program of treatment under the Directors supervision in order to be eligible for outright release”].) Defendant also notes the prosecutions failure to offer a neurological assessment that “could constitute substantial evidence that custodial treatment was necessary.”
Defendant again misconstrues our standard. As stated, we draw all reasonable inferences in favor of the courts judgment. (People v. Mercer, supra, 70 Cal.App.4th at pp. 466–467, 82 Cal.Rptr.2d 723.) Viewed in this light, we reasonably interpret Dr. Karlssons and Dr. Miculians testimony to support the finding that due to defendants diagnosed mental disorder, he currently presents “a serious and well-founded risk ․ of criminal sexual violence unless maintained in an appropriate custodial setting which offers mandatory treatment for the disorder.” (Ghilotti, supra, 27 Cal.4th at p. 895, 119 Cal.Rptr.2d 1, 44 P.3d 949.) The fact that Dr. Dempsey opined defendant would “do well” in outpatient treatment does not alter our conclusion. The trial court was entitled to reject this position. (Mercer, supra, at p. 467, 82 Cal.Rptr.2d 723.)
Thus, we conclude defendants failure to complete treatment, considered in light of his ongoing pornography use and the nature of his mental disorder and its impact on his volitional capacity, provides substantial evidence that he will, if released, “represent a substantial danger of committing similar new crimes ․” (Ghilotti, supra, 27 Cal.4th at p. 924, 119 Cal.Rptr.2d 1, 44 P.3d 949, italics omitted.)
II. The court did not erroneously admit expert testimony that included case-specific hearsay.
Defendant next contends the trial court erred by admitting Dr. Karlssons testimony regarding “conclusions purportedly reached by neuropsychologist Dr. Dinishak after he evaluated [defendant].” He relies on People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, which held: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the experts opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at pp. 686, 670, 204 Cal.Rptr.3d 102, 374 P.3d 320; see Evid. Code, § 801, subd. (b).) An expert therefore “cannot ․ relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Sanchez, at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.)
Whether a trial court erred in admitting hearsay expert testimony in violation of Sanchez is reviewed for abuse of discretion. (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 876, 252 Cal.Rptr.3d 693.) Under this standard, the trial courts ruling will not be disturbed “ ‘ “ ‘unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296, 326, 159 Cal.Rptr.3d 626, 304 P.3d 124.) Trial court error that rests on an error of law is an abuse of discretion. (Bennett, at p. 876, 252 Cal.Rptr.3d 693.)
Here, defendant points to two supposedly problematic statements during Dr. Karlssons testimony. First, Dr. Karlsson testified on direct examination that “various neuropsychological tests ․ suggest[ ] that [defendant] still has various kinds of impairments,” a consideration Dr. Karlsson factored into his evaluation. Then, on cross-examination, Dr. Karlsson confirmed that he relied on Dr. Dinishaks neuropsychological testing, and that Dr. Dinishak, in his 2017 assessments, “discuss[ed] [defendants] impairments and [found] him apparently more impaired than Dr. Dempsey.” We find neither error nor prejudice.
Under the SVPA, state evaluators such as Dr. Karlsson are called upon to conduct updated evaluations of the offender, which “shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order.” (§ 6603, subd. (d)(1).) This rule is consistent with standard rules of evidence. Evidence Code section 801, subdivision (b) allows an expert to render an opinion “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” Evidence Code section 802, in turn, allows an expert to “state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.”
Here, Dr. Karlsson complied with these statutory rules in reviewing Dr. Dinishaks test findings, along with defendants other medical records, as part of his evaluation. (§ 6603, subd. (d)(1).) Dr. Karlsson also confirmed that his own opinions regarding defendant were based on his analysis of all the information that he reviewed, including defendants treatment records and test findings. As such, Dr. Karlsson did not run afoul of Sanchez. (People v. Leon (2015) 61 Cal.4th 569, 603, 189 Cal.Rptr.3d 703, 352 P.3d 289 [“testimony relating the testifying experts own, independently conceived opinion is not objectionable, even if that opinion is based on inadmissible hearsay․ The hearsay problem arises when an expert simply recites portions of a report prepared by someone else”].)
Moreover, the record reflects that the trial court excluded and struck any reference to the results of Dr. Dinishaks neuropsychological testing on the grounds that it was a case-specific fact. This ruling reflects that the court was well aware of the Sanchez rule. And, even aside from this ruling, the law requires that we presume the trial court properly performed its judicial duty, including its duty while acting as trier of fact to “ ‘ “ignore material it knows is incompetent, irrelevant, or inadmissible.” [Citation.] “Only proof that the evidence actually figured in the courts decision will overcome these presumptions. [Citations.] Clearly, the mere fact that the court heard or read the evidence is not sufficient to overcome the presumptions.” ’ ” (People v. Presley (2021) 65 Cal.App.5th 1131, 1143, 280 Cal.Rptr.3d 632.) Defendant points to nothing in the record indicating the trial court violated this rule.
III. Equal Protection Challenge.
Last, defendant contends his constitutional right to equal protection was violated by the courts 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 defendants 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 defendants equal protection rights.
A. No Forfeiture.
We first address the Peoples 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. Defendants 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 Washingtons 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, Washingtons attorney could have argued not doing so would violate equal protection principles. But presumably, Washingtons 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 SVPs are similarly situated to MDOs and NGIs 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 [“MDOs and SVPs 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 states 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 individuals 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 defendants 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 individuals 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 individuals 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 Legislatures 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 defendants 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 courts 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 opinions 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”].)
8
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 systems 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 states 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 respondents brief for this legislative difference: (1) the Legislature could have determined that SVPs as a class pose a greater safety risk to society than MDOs or NGIs, warranting weaker jury trial rights; and (2) the Legislature could have determined “an alleged SVPs 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.
9
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 courts finding that the People had met their burden to show SVPs pose a greater danger to society than MDOs and NGIs, 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 SVPs access to a fair trial. In defendants 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 defendants 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 SVPs 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 courts 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 Peoples 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 courts failure to properly advise an MDO defendant of the right to a jury trial does not by itself warrant automatic reversal. Instead, a trial courts acceptance of a defendants personal waiver without an express advisement may be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendants 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 defendants 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 defendants 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 defendants 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 SVPAs 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.
FOOTNOTES
1
. Unless otherwise stated, all statutory citations are to the Welfare and Institutions Code.
2
. This stipulation was subsequently admitted into evidence in defendants SVPA trial.
3
. A recording of this interview was admitted into evidence.
FOOTNOTE
. See footnote *, ante.
5
. The process for determining whether an offender is an SVP, including whether he or she has a diagnosed mental disorder making him or her a danger to the health and safety of others (§ 6600, subd. (a)(1)), takes place in several stages, both administrative and judicial. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145, 81 Cal.Rptr.2d 492, 969 P.2d 584.) Here, we are concerned with the determination that defendant is an SVP, made by the trial judge acting as trier of fact after a trial on the Peoples commitment petition. (§§ 6602, 6604.)
6
. Dr. Miculian had reached negative diagnoses in about 92 percent of his evaluations.
7
. The SVPA also contains “ ‘provisions for the evaluations to be updated or replaced after the commitment petition is filed in order “to obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is based on a ‘current’ mental disorder.” ’ [Citation.]” (In re Butler (2020) 55 Cal.App.5th 614, 628, 269 Cal.Rptr.3d 649.) “After commitment, an SVP is evaluated every year to consider ‘whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative, pursuant to Section 6608, or an unconditional discharge, pursuant to Section 6605, is in the best interest of the person and conditions can be imposed that would adequately protect the community.’ (§ 6604.9.) Under certain circumstances, an SVP may petition the court for either conditional release (§ 6608) or unconditional discharge (§ 6605).” (In re Butler, at pp. 628–629, 269 Cal.Rptr.3d 649.)
8
. 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 SVPs a greater burden than is imposed on MDOs and NGIs 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 NGIs as compared to MDOs 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.)
9
. 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.”
Jackson, P. J.
WE CONCUR:
Simons, J.
Burns, J.