People v. Cannon ( 2022 )

Filed 11/29/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A163083
v.
WILLIAM JOSEPH CANNON, (Mendocino County
Defendant and Appellant. Super. Ct. No.
SCUK-CRCR-2010-14869-2)
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.).1 Defendant challenges this
commitment order on three grounds: (1) the lack of substantial evidence to
support the trial court’s finding that he qualified as a sexually violent
predator (SVP), (2) the admission of prejudicial hearsay expert testimony,
and (3) the violation of his constitutional right to equal protection based on
the court’s failure to advise him of his right to a jury trial and to obtain his
personal waiver of this right. We agree with defendant this matter should be
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*
opinion is certified for publication with the exception of parts I and II of the
discussion.
Unless otherwise stated, all statutory citations are to the Welfare and
1
Institutions Code.
1
remanded to the trial court to provide him an opportunity to raise his equal
protection challenge. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Defendant’s 2010 Criminal Conviction.
On December 16, 2010, defendant was convicted by plea of assault with
intent to commit rape and dissuading a witness. On March 15, 2011,
defendant was sentenced to a total term of seven years, representing the
four-year middle term on the assault count, running consecutively to the
three-year middle term on the dissuading count.
According to the stipulated basis for the plea,2 on October 3, 2010,
defendant, wearing a face mask, grabbed the victim, Jane Doe, and
attempted to drag her off the street to sexually assault her. As Jane
struggled, defendant warned he would “ ‘F’ing kill her’ ” if she called the
police. Jane, assisted by two bystanders, was able to escape. Defendant ran
away but was later apprehended by police. During his subsequent police
interview, defendant admitted that he was out that day “ ‘hunting females to
sexually assault them.’ ” He also admitted that when he grabbed Jane, he
intended to drag her to a secluded area to rape her but was thwarted by two
passersby.
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.
2This stipulation was subsequently admitted into evidence in
defendant’s SVPA trial.
2
Defendant’s SVPA trial was subsequently continued several times, and
the court ordered new evaluation reports. The updated evaluations were
prepared in 2018, revealing a split in opinion among the experts as to
whether defendant qualified as an SVP.
On February 7, 2018, at a pretrial conference unattended by defendant,
his counsel waived his right to a jury trial.
III. Defendant’s 2020 SVPA Bench Trial.
Following several additional continuances, defendant’s bench trial
began October 5, 2020.
A. Investigator Kevin Bailey.
Investigator Kevin Bailey, who interviewed3 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.
Defendant’s behavioral changes caused conflict with his family, who
sent him to Utah to live with his aunt. In 2009, while living there, defendant
was hit by a truck while riding his bike. This second injury enhanced
defendant’s obsessions with sex and pornography and increased his sexual
disinhibition. Soon, his aunt had enough and defendant went to live with his
grandfather. Defendant’s grandfather also became overwhelmed with
defendant’s sexual tendencies, and he eventually went to live with a
coworker. This coworker then forced defendant to leave after defendant
made sexually inappropriate comments to his wife.
3 A recording of this interview was admitted into evidence.
3
Defendant acknowledged to Bailey that following his injuries, he “made
some pretty irrational decisions . . . .” For example, defendant got into
trouble with his college administration after getting caught viewing
pornography in the library. After Bailey confronted defendant with his
camera, defendant acknowledged there was a video on it that he made of
himself masturbating.
Defendant also pursued a relationship with his 15-year-old next-door
neighbor. Initially, the pair developed a mutual interest. However,
defendant “just got kind of aggressive with her . . . .” One night, defendant
entered her home through an unlocked window and attempted to “lure her
out” to have sex. His conduct scared the young girl, and her mother told him
to stay away. However, defendant returned one day to the girl’s home and
tried unsuccessfully to enter through a door. Defendant acknowledged to
Bailey that had the door been unlocked, he “might’ve [pulled her out of the
house and] raped her . . . .” Instead, the girl’s mother called the police and
obtained a restraining order against him.
Later, defendant began hunting girls to have sex with, ultimately
finding and attempting to rape the 16-year-old victim that was the subject of
his arrest. As defendant told Bailey, he acquired a backpack in which he
carried a hat and mask that he intended to use to commit rape. For about a
week prior to his crime, he went out “just looking for a girl that was walking
by.” Asked to explain, defendant said, “I mean I guess, um, I have like sexual
urges.” Defendant added that he formulated a plan to commit rape if the
opportunity presented itself, even though his conduct was “wrong” and would
harm his victim. “Maybe it was a bad time or something.”
Defendant also told Bailey that on the day of his crime, he went to
church carrying his bag packed with a hat, mask, and a pen, which he hoped
4
to use to dupe his prospective victim into thinking he had a knife.
Defendant’s plan was to force his victim into a “darkened area,” show her the
pen/faux weapon, “cover her mouth,” “push her down,” “drop her pants” and
“force her” “[t]o have sex with me.” When Bailey asked what he would have
been willing to do to avoid getting caught, defendant responded, “I guess
maybe as far as it’ll take.” While his plan only included rape, defendant
admitted, “I guess in some way probably [he was prepared to kill his victim if
necessary].”
Defendant left church within minutes and began walking around. He
“happened to see this girl” who appeared to be about 16 years old. Defendant
made sure he could put on his mask “without kinda being seen by other
people” before running toward the girl from behind. Defendant was surprised
at how quickly he closed in on her without attracting her attention. However,
soon after defendant grabbed the girl, a car stopped and two people got out.
Had that not happened, defendant admitted, “I probably would have had sex
with the girl and taken her down, um, down into the shed, done my business
and tried to shut her up, I guess.” Asked how far he would have gone if the
girl had threatened to call the police, defendant responded, “I mean like I
said, I never thought about killing someone, but I suppose maybe in the
moment, it’s possible, yes. I suppose it could happen.”
B. Expert Witnesses.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
4The expert testimony is the subject of several issues raised on appeal.
Accordingly, the relevant testimony is discussed in much greater detail post
(pp. 9–12).
5
such, needed to stay in custody under treatment (pp. 9–11, post). Dr.
Dempsey, in turn, testified for the defense that defendant no longer qualified
as an SVP and should be released to pursue outpatient treatment
(p. 12, post).
IV. The Commitment Order and Appeal.
On December 15, 2020, the trial court issued a written order finding
that the prosecution met its burden to prove that defendant qualified as an
SVP. Accordingly, defendant was committed to the State Department of
State Hospitals–Coalinga (Coalinga) for an indefinite term. Defendant’s
timely appeal followed.
DISCUSSION
Defendant contends the trial court’s commitment order must be
vacated because (1) the prosecution failed to prove beyond a reasonable doubt
that he was an SVP; (2) the court erroneously admitted expert testimony
consisting of case specific hearsay; and (3) his constitutional right to equal
protection was violated by the court’s failure to advise him of his right to a
jury trial or to elicit his personal waiver of this right. We address each issue
in turn post.
I. The prosecutor proved defendant was an SVP beyond a
reasonable doubt.
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.5 (§ 6600 et seq.; People
5The 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.) Here, we are concerned with the
determination that defendant is an SVP, made by the trial judge acting as
6
v. Williams (2003) 31 Cal.4th 757, 764.) “The purpose of the SVPA is to use a
civil commitment to treat SVP’s 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.)
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; CALCRIM No. 3454.) Here, defendant
contends the prosecution did not meet its burden as to the third and fourth
prongs of this standard.
trier of fact after a trial on the People’s commitment petition. (§§ 6602,
6604.)
7
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.)
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.)
“Substantial evidence” means “ ‘ “evidence which is reasonable, credible, and
of solid value . . . .” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396 (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.) “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.) 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 fact’s 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.)
8
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 defendant’s 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 person’s 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. Karlsson’s opinion, due to the nature of
defendant’s injury, his recidivism rate was, in fact, higher (greater than 15
percent) compared to his reference sex offender group.
9
One of Dr. Karlsson’s primary concerns in reaching this opinion was
defendant’s 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 defendant’s 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
defendant’s 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 he’s in a structured environment
like Coalinga,” it is not yet clear that he would have the same success in an
uncontrolled environment.
10
Dr. Miculian, a psychologist with the State Department of State
Hospitals who had conducted over 1,000 SVP evaluations,6 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 one’s 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 defendant’s 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 he’s 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]here’s 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.”
6 Dr. Miculian had reached negative diagnoses in about 92 percent of
his evaluations.
11
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 he’s 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. Karlsson’s 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 defendant’s 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.
12
C. Substantial evidence proved defendant was likely to
reengage in acts of sexual violence.
Based on this record, we reject defendant’s 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).)7 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 (Ghilotti);
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.) “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.)
13
People v. Williams, supra, 31 Cal.4th at p. 772 [“ ‘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. Defendant’s victims were similarly
young in age, and he acknowledged that viewing porn contributed to his
predatory behavior. Dr. Karlsson and Dr. Miculian’s 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.)
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 [“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 court’s judgment as the law requires (ibid.), there is no cause to
favor Dr. Dempsey’s opinion over theirs.
14
We also acknowledge defendant’s 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.
Dempsey’s 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 [“ ‘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 court’s 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.)
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
court’s finding that it was necessary to keep him in custody to ensure the
health and safety of others. Defendant’s 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 court’s finding that
15
defendant required further in-custody treatment before he could be safely
released into the community. (See CALCRIM No. 3454.)
Dr. Karlsson testified defendant’s 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 hasn’t really moved on maturely into woman in his
own age.” (Sic.) In Dr. Karlsson’s 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, defendant’s 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 “patient’s 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.)
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 [the SVPA does not
require an individual “to complete a prescribed program of treatment under
the Director’s supervision in order to be eligible for outright release”].)
Defendant also notes the prosecution’s failure to offer a neurological
16
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 court’s judgment. (People v. Mercer,
supra, 70 Cal.App.4th at pp. 466–467.) Viewed in this light, we reasonably
interpret Dr. Karlsson’s and Dr. Miculian’s testimony to support the finding
that due to defendant’s 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.) 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.)
Thus, we conclude defendant’s 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,
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.
Karlsson’s testimony regarding “conclusions purportedly reached by
neuropsychologist Dr. Dinishak after he evaluated [defendant].” He relies on
People v. Sanchez (2016) 63 Cal.4th 665, 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 expert’s
opinion, the statements are hearsay. It cannot logically be maintained that
17
the statements are not being admitted for their truth.” (Sanchez, supra, 63
Cal.4th at pp. 686, 670; 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.)
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.) Under this standard, the trial court’s
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.) Trial court error that rests on an error of law is an abuse of discretion.
(Bennett, at p. 876.)
Here, defendant points to two supposedly problematic statements
during Dr. Karlsson’s 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. Dinishak’s neuropsychological
testing, and that Dr. Dinishak, in his 2017 assessments, “discuss[ed]
[defendant’s] 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).)
18
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.
Dinishak’s test findings, along with defendant’s 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 defendant’s treatment records
and test findings. As such, Dr. Karlsson did not run afoul of Sanchez.
(People v. Leon (2015) 61 Cal.4th 569, 603 [“testimony relating the testifying
expert’s 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. Dinishak’s neuropsychological testing on
the grounds that it was a case-specific fact. This ruling reflects that the court
19
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 court’s 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.) 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 court’s failure to advise him of his right to a jury trial or
to elicit his personal waiver of this right. Defendant reasons (1) he is
similarly situated to defendants facing involuntary civil commitment as a
mentally disordered offender (MDO) (Pen. Code, § 2960 et seq.) and those
who plead not guilty by reason of insanity (NGI) (Pen. Code, § 1026.5), yet
(2) he is treated less favorably than those groups because commitment under
the SVPA does not require the personal waiver of a jury trial.
“Decisions by this court and the United States Supreme Court . . . have
used the equal protection clause to police civil commitment statutes to ensure
that a particular group of civil committees is not unfairly or arbitrarily
subjected to greater burdens.” (People v. McKee (2010) 47 Cal.4th 1172, 1199
(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
20
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 (Washington) [“the SVPA does not contain language
requiring a jury trial advisement or a personal waiver of that right, evincing
a legislative intent not to provide these procedural protections”].)
In contrast, an offender facing involuntary civil commitment under
either the MDO or the NGI statute is entitled to a jury trial unless he or she,
having been advised by the court of this right, personally waives it. (Pen.
Code, §§ 2972, subd. (a)(1) [“court shall advise the person of the right to be
represented by an attorney and of the right to a jury trial”], (a)(2) [“trial shall
be by jury unless waived by both the person and the district attorney”],
1026.5, subd. (b)(3)–(4) [same].) Thus, as reflected in the statutory language,
“the Legislature intentionally established a different framework for a
defendant’s exercise of his or her right to a jury trial in an SVP proceeding,
creating a presumption that the trial would be by the court unless demanded
by the defendant.” (Washington, supra, 72 Cal.App.5th at p. 468.) The
question raised is whether this legislative distinction violates defendant’s
equal protection rights.
A. No Forfeiture.
We first address the People’s threshold argument that defendant
forfeited his equal protection challenge by failing to bring it below. Several
courts have rejected this argument based on reasoning with which we agree.
While a constitutional right may be forfeited if not timely asserted in the
lower court (People v. McCullough (2013) 56 Cal.4th 589, 593), 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.)
21
Such is the case here. Defendant’s equal protection challenge raises a
pure question of law, and it does not appear he had the opportunity to raise it
below. (See People v. Nolasco (2021) 67 Cal.App.5th 209, 217 (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 (Magana).) As the Washington court aptly explained:
“Although Washington’s attorney failed to argue that Washington was
entitled to a jury trial absent a personal waiver by Washington after a jury
trial advisement, it is hard to envision how counsel could have asserted this
claim. . . . The only way Washington could have asserted an equal protection
challenge in the trial court would have been for his attorney to request the
trial court advise Washington of his right to a jury trial and take a personal
waiver of that right. Then, if the court declined to do so based on the absence
of a requirement in the SVPA, Washington’s attorney could have argued not
doing so would violate equal protection principles. But presumably,
Washington’s attorney believed Washington wanted to proceed with a court
trial (which may or may not have been the case), and thus, counsel would
have been unlikely to demand the court advise Washington of his jury trial
right and take a personal waiver. Yet had the civil commitment proceeding
been under the MDO or NGI statutes, the court would have been required to
advise Washington of his right to a jury trial and to take his personal waiver
of that right, to ensure he was aware of and making a knowing, intelligent,
and voluntary waiver of that right. Under these unusual circumstances, we
decline to find forfeiture . . . .” (Washington, supra, 72 Cal.App.5th at pp.
473–474.)
22
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 [“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 [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.)
“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.)
C. Equal Protection Analysis.
The People concede SVP’s are similarly situated to MDO’s and NGI’s
for purposes of the jury trial laws in question. (McKee I, supra, 47 Cal.4th
1172, 1203 [“MDO’s and SVP’s are similarly situated for our present
23
purposes”]; Magana, supra, 76 Cal.App.5th at p. 322.) Accordingly, we turn
directly to whether the state has “some justification for this differential
treatment.” (McKee I, at p. 1203.) The first step is deciding the appropriate
level of scrutiny of the state’s proposed justification.
“Because of the fundamental interests at stake, equal protection
principles are often invoked in civil commitment cases to ensure that the
statutory scheme applicable to a particular class of persons has not treated
them unfairly in comparison with other groups with similar characteristics.”
(People v. Barrett (2012) 54 Cal.4th 1081, 1107 (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
[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
[“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.)” (People v. Buffington, supra, 74
24
Cal.App.4th at pp. 1155–1156.) 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.)
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 [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 (McKee II).)
Several courts have recognized that, while civil commitments in
general implicate an individual’s fundamental liberty interest, not all
legislative enactments involving civil commitments directly impact this
liberty interest. On the one hand, courts have considered equal protection
challenges to civil commitment statutes governing who had the burden of
proof when the committed individual seeks release, and have found strict
scrutiny appropriate. (E.g., McKee II, supra, 207 Cal.App.4th at p. 1348
[applying strict scrutiny review to reject defendant’s equal protection
challenge to the SVPA provision placing the burden on the committed person
to prove he or she should be released, where the MDO provision provided for
a one-year commitment after which release was automatic unless the People
proved beyond a reasonable doubt the person should be recommitted for
another year].) On the other hand, courts have considered equal protection
25
challenges to civil commitment statutes relating, as here, to secondary or
ancillary trial procedures that do not necessarily impact the individual’s
fundamental rights. Under these circumstances, rational basis review was
applied. (Magana, supra, 76 Cal.App.5th at p. 324 [“Although the indefinite
commitment of an alleged SVP affects the individual’s fundamental right to
liberty, ensuring an alleged SVP has meaningful access to the statutory right
to a jury trial, while essential to the exercise of that right, does not affect a
fundamental right”]; Nolasco, supra, 67 Cal.App.5th at p. 225.)
In Barrett, similar to here, the California Supreme Court addressed the
equal protection challenge of an intellectually disabled person to the
Legislature’s failure to expressly authorize jury trials or require jury trial
advisements in civil commitment proceedings under section 6500. (Barrett,
supra, 54 Cal.4th at pp. 1088–1089.) Applying the rational basis standard of
review, the court rejected the defendant’s claim that equal protection
principles required that section 6500 proceedings involve the same jury trial
safeguards that apply under the Lanterman-Petris-Short Act (§ 5000 et seq.)
to proceedings in which confined patients posing a “ ‘demonstrated danger’ as
a result of ‘mental disorder or mental defect’ ” faced 180 days of civil
commitment. (Barrett, supra, 54 Cal.4th at pp. 1106, 1111, fn. 21.) The
court’s majority reasoned: “Contrary to what Barrett implies, she has not
been singled out for harsh and unfair treatment in this regard. Of the nine
commitment procedures we have listed above, a majority (including § 6500
et seq.) either do not reference jury trial matters at all (such that a right to
jury trial on request has been constitutionally implied), or they say nothing
about advisements or waivers of any jury trial right otherwise provided
therein. By the same token, variations in the other commitment schemes
suggest no uniform set of jury trial procedures exists or was withheld from
26
Barrett. There is nothing unusual or unconstitutional about the manner in
which these statutes have evolved over time.” (Id. at p. 1110, fns. omitted;
accord, McKee I, supra, 47 Cal.4th at pp. 1210, fn. 13 [“we strongly disagree
with the concurring and dissenting opinion’s characterization of our view as
being ‘that every detail of every civil commitment program is subject to strict
scrutiny’ ”], 1223 (conc. & dis. opn. of Chin, J.) [“A person may have a
fundamental interest in his or her liberty, but I question whether this
fundamental interest extends to all procedures whereby decisions involving
personal liberty are made. . . . [C]ourts from other states that have
considered the question have overwhelmingly concluded that strict scrutiny
does not apply to equal protection challenges to civil commitment
programs”].)8
We agree with our appellate colleagues in Magana and Nolasco that
Barrett, and its use of the rational basis standard, governs our case.
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.) The court then remanded the case for
the trial court to decide in the first instance whether the People “can
demonstrate the constitutional justification for imposing on SVP’s a greater
burden than is imposed on MDO’s and NGI’s in order to obtain release from
commitment.” (Id. at pp. 1208–1209.) In doing so, the court cited In re Moye
(1978) 22 Cal.3d 457, 465–466, which applied the strict scrutiny standard to
an equal protection challenge based on the less favorable treatment afforded
NGI’s as compared to MDO’s with respect to the statutory commitment
period and burden of proof. (McKee I, at pp. 1208–1209.) 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.)
27
(Magana, supra, 76 Cal.App.5th at p. 324; Nolasco, supra, 67 Cal.App.5th at
p. 225 [“we choose to . . . apply rational basis scrutiny—because Barrett is the
most recent pronouncement by our Supreme Court as to the pertinent level of
scrutiny to apply when comparing divergent civil commitment procedures”].)
However, in doing so, we do not suggest that the rights to a jury trial
advisement and personal jury trial waiver are only marginally significant or
that the rational basis standard is toothless. As powerfully explained by
Justice Liu in his Barrett concurrence/dissent: “Whether or not an
advisement alters the ultimate choice to proceed with or without a jury, it
expresses the legal system’s respect for the individual as a participant in, and
not a mere object of, the commitment proceedings. For those who are capable
of understanding it, an advisement by the court recognizes their dignity as
well as their ability to comprehend and possibly participate in an important
aspect of a proceeding that may adversely and irreversibly shape the rest of
their lives. Having extended this recognition to some persons with mental
[disorders], the Legislature must have an actual, considered rationale for not
extending it to others.” (Barrett, supra, 54 Cal.4th at p. 1149 (conc. & dis.
opn. of Liu, J.).)
With this in mind, we return to the record to determine whether it
contains a constitutional justification for the state’s failure to grant SVPA
defendants the same rights to a jury advisement and personal jury trial
waiver as the MDO and NGI statutes. Because defendant did not raise his
equal protection claim below, the People were unaware of the need to make
this showing in the appropriate venue. Nonetheless, the People identify two
possible rationales in their respondent’s brief for this legislative difference:
(1) the Legislature could have determined that SVP’s as a class pose a greater
safety risk to society than MDO’s or NGI’s, warranting weaker jury trial
28
rights; and (2) the Legislature could have determined “an alleged SVP’s right
to a fair trial would be best protected by a judge indisputably capable of
examining such highly inflammatory evidence in an impartial [manner]”
rather than a jury.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 [distinguishing
McKee II, wherein the reviewing court affirmed the trial court’s finding that
the People had met their burden to show SVP’s pose a greater danger to
society than MDO’s and NGI’s, thereby justifying differential treatment as to
the commitment term and burden to obtain release from commitment];
Magana, supra, 76 Cal.App.5th at p. 352.)
Moreover, given the central role of the jury trial in our legal system, we
also have difficulty accepting that our Legislature would deem it necessary or
appropriate to discourage jury trials in order to protect an alleged SVP’s
access to a fair trial. In defendant’s words, “[s]uch a cynical view of juries is
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.”
29
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].)”
However, while rejecting these arguments, we nonetheless conclude in
light of defendant’s delay in raising his equal protection claim that remand is
necessary to give the People a meaningful opportunity to demonstrate a valid
constitutional justification for the SVP’s differential legislative treatment.
(See McKee I, supra, 47 Cal.4th at pp. 1208–1210; see also Magana, supra, 76
Cal.App.5th at p. 324.) 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 [“an equal protection violation does not occur merely
because different statutory procedures have been included in different civil
commitment schemes”].) Given the importance of this issue, we decline to
decide it on an incomplete factual record. In the meantime, we conditionally
affirm the trial court’s order declaring defendant to be an SVP and
committing him to the State Department of State Hospitals for an
indeterminate term.
D. Any error would not be harmless.
Last, we reject the People’s claim that remand is not necessary because
any failure of the trial court to advise defendant of his rights to a jury trial
and to obtain a personal waiver of this right was harmless error.
The Magana court, relying on Blackburn (2015) 61 Cal.4th 1113, 1134–
1136, 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; Blackburn,
30
supra, at p. 1136 [“trial court’s failure to properly advise an MDO defendant
of the right to a jury trial does not by itself warrant automatic reversal.
Instead, a trial court’s acceptance of a defendant’s personal waiver without
an express advisement may be deemed harmless if the record affirmatively
shows, based on the totality of the circumstances, that the defendant’s waiver
was knowing and voluntary”].) Because the record there was silent on the
issue, the Magana court reversed and remanded to the trial court to litigate
the defendant’s equal protection claim. (Magana, at p. 327.)
The same circumstances exist here. The record reflects that, on
February 7, 2018, the trial court asked whether either side wished to waive a
jury trial, even though the SVPA did not require the court to make this
inquiry. In response, defense counsel waived a jury trial on defendant’s
behalf, and the court accepted it. At a subsequent pretrial conference on
March 22, 2018, which defendant did not attend, defense counsel “confirm[ed]
it is a court trial, not a jury trial,” before adding defendant was “wavering if
he even wants to come to court at this point.”
Nothing in this record affirmatively demonstrates that defendant was
fully advised of his rights to a jury trial or that he made a knowing and
intelligent waiver of such right. To the contrary, he was not present when his
counsel offered a waiver on his behalf. As such, following Blackburn and
Magana, we decline to find harmless error on a silent record and, instead,
remand to the trial court to litigate defendant’s constitutional challenge.
DISPOSITION
The order declaring defendant to be an SVP and committing him to the
State Department of State Hospitals for an indeterminate term is
conditionally affirmed. The matter is remanded to the trial court to provide
defendant an opportunity to raise his equal protection challenge to the
31
SVPA’s jury trial provisions. If, on remand, the trial court determines there
is an equal protection violation, the court shall vacate the order declaring
defendant to be an SVP and set the matter for a jury trial unless, after a full
advisement by the court, he knowingly and intelligently waives his right to
have a jury decide his case.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A163083/People v. William Joseph Cannon
32
A163083/People v. Cannon
Trial Court: Superior Court of the County of Mendocino
Trial Judge: Ann Moorman
Counsel: Jeremy Price and Rachel Belden, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and
Charles C. Ragland, Assistant Attorneys General,
Arlene A. Sevidal and James H. Flaherty III, Deputy
Attorneys General, for Plaintiff and Respondent.
33