People v. Nolasco

Filed 8/23/21 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. ZM050339-01)
JOSE NOLASCO, ORDER MODIFYING
OPINION AND
Defendant and Appellant. DENYING REHEARING
NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 29, 2021, be
modified as follows:
1. On page 16, at the beginning of the fourth full
paragraph, after “More recently, McKee,” add the words
“seems to have.” The sentence should now read:
More recently, McKee seems to have applied
what purported to be a form of “heightened
scrutiny” that appears to be less rigorous than
strict scrutiny, but more onerous than rational
basis scrutiny. (McKee, supra, 47 Cal.4th at pp.
1206-1207, 1210, 1211 & fns. 13 & 14.)
2. On page 17, at the end of the same paragraph
mentioned above, add the following sentence:
Although McKee ultimately ordered a remand
for the trial court to “apply[] the equal
protection principles articulated in [In re] Moye
[(2009) 22 Cal.3d 457] and related cases
discussed in the present opinion” (id. at p.
1209), and Moye applied strict scrutiny (In re
Moye, supra, 22 Cal.3d at p. 465), Moye’s
application of that standard rested on a
concession (ibid.), and McKee’s discussion of
related cases, as noted above, was not clear as
to which level of scrutiny to apply.
* * *
2
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
3
Filed 7/29/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308627
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM050339-
v. 01)
JOSE NOLASCO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James N. Bianco, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
******
As pertinent here, California has two statutory
mechanisms for detaining, evaluating, and treating persons who
have been declared incompetent to stand trial for a felony that
entailed a threat of bodily harm, and who continue to pose a
danger to others. What prompts the use of one mechanism over
another is the reason why the person is dangerous: When the
reason is a “developmental disability,” the applicable mechanism
is civil commitment under Welfare and Institutions Code section
6500; 1 when the reason is a “mental disease, defect, or disorder,”
the applicable mechanism is a so-called Murphy conservatorship
under the Lanterman-Petris-Short Act (LPS Act) (§ 5000 et seq.),
§ 5008, subdivision (h)(1)(B). 2 Each type of commitment may be
renewed annually, but the end date for the one-year
recommitment period under each mechanism differs: Under
section 6500, the one-year period ends on the anniversary of the
date of the recommitment order (§ 6500, subd. (b)(1)); for a
Murphy conservatorship, the one-year period ends on the
anniversary of the date of the initial commitment order (§ 5361).
Because, as is common, recommitment orders under section 6500
are not fully litigated (and hence not issued) until after the
anniversary of the date of the initial commitment order, the end
dates for section 6500 recommitments typically get pushed out
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The name “Murphy conservatorship” comes from the
legislator who sponsored the statutory amendment creating
them. (People v. Quiroz (2016) 244 Cal.App.4th 1371, 1376.)
2
further and further with each recommitment. Does this “creep”
of the end date under section 6500 violate equal protection vis-à-
vis Murphy conservatorships? We conclude that it does not, and
accordingly affirm the end date for the section 6500
recommitment in this case.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Since his teen years, Jose Nolasco (Nolasco) has had a mild
“developmental disability.” In his early 20s, Nolasco developed a
mental illness as well—namely, a “major depressive disorder”
with “psychotic features” that includes hearing and seeing
hallucinations.
On May 5, 2017, Nolasco whipped a belt at police officers
who had arrived on scene to detain him for a possible mental
health hold and then tried to get away by running into oncoming
traffic. The People charged Nolasco with resisting an executive
officer as a felony (Pen. Code, § 69).
The criminal charges were suspended once the trial court
referred Nolasco to mental health court to evaluate his
competency to stand trial. The mental health court found him
incompetent to stand trial.
After two years, Nolsaco had not regained his competency
to stand trial, and the criminal court’s jurisdiction was
terminated.
II. Procedural Background
A. Initial commitment under section 6500
On June 6, 2019, the People petitioned the mental health
court to commit Nolasco under section 6500 on the ground that
he was a “developmentally disabled person who is dangerous to
[him]self or others.”
3
In support of its petition, the People produced expert
testimony regarding Nolasco’s mental illness and his
developmental disability, along with expert opinion that his
developmental disability exacerbated his mental illness by
depriving him of “the coping skills” necessary to manage his
mental illness. The People also introduced evidence of Nolasco’s
juvenile adjudications for assault with a deadly weapon and
battery as well as his prior arrests for animal cruelty and
domestic battery.
Following an evidentiary hearing on August 20, 2019, the
mental health court found Nolasco to be an “intellectually or
developmentally disabled person who is a danger to [him]self
and/or others,” found that his disability was a “substantial factor
in causing serious difficulty in controlling [his] dangerous
behavior,” and found that there was “no alternative to judicial
commitment.” The court then committed defendant to the
custody of the State for one year.
B. Recommitment proceedings
On August 14, 2020, the People petitioned the mental
health court to recommit Nolasco for an additional year.
At an evidentiary hearing on October 13, 2020, the People
produced expert testimony that the “psychiatric regime” Nolasco
received while committed had resulted in “significant
improvement” of his mental illness, but that his developmental
disability still rendered him “[un]able to cope with some of his
psychotic symptoms” and meant he still posed a danger to himself
or others. Specifically, Nolasco had struck a fellow conservatee in
July 2020 because Nolsaco got upset when the conservatee asked
Nolasco to come over to him, and Nolasco would pick his nose and
skin until he bled.
4
At the end of the hearing, the mental health court found
that Nolasco continued to pose a danger to others and ordered
him recommitted to the “least restrictive placement” for one year
starting on October 13, 2020, and ending on October 13, 2021.
C. Appeal
Nolasco filed this timely appeal.
DISCUSSION
Nolasco argues that the mental health court’s
recommitment order under section 6500 violates equal protection
because it ends on the one-year anniversary of the date of the
recommitment order (October 13). Had he been recommitted in a
Murphy conservatorship, Nolasco continues, the end date for his
recommitment would have been nearly two months earlier on the
anniversary of the date of his initial commitment (August 20).
Because section 6500 commitments and Murphy
conservatorships both apply to persons who are found
incompetent to stand trial and who pose a danger to others,
Nolasco concludes, the differential treatment in the end dates for
recommitment orders violates equal protection. We
independently examine whether statutory classifications offend
equal protection, particularly where, as here, they rest on
undisputed facts. (California Grocers Assn. v. City of Los Angeles
(2011) 52 Cal.4th 177, 208; Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 912.) As the People point out,
Nolasco’s challenge is forfeited because he did not object on equal
protection grounds before the mental health court. 3
3 We reject Nolasco’s assertion that he did not forfeit his
challenge because, in his view, presenting the challenge to the
mental health court “would [not] have change[d] . . . the result.”
Nothing in the record supports Nolasco’s casual aspersion that
5
Nevertheless, we exercise our discretion to address Nolasco’s
challenge because it presents an important question of public
concern. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; People
v. Superior Court (1988) 200 Cal.App.3d 491, 497 (Clements).) In
doing so, any claim that his counsel’s forfeiture of the issue
constitutes ineffective assistance is obviated.
I. Pertinent Law on Involuntary Commitment
California has several mechanisms for the involuntary
commitment of individuals deemed to present a danger to
themselves or others. Several of these mechanisms apply to
individuals who suffer from mental illness and who have been
previously convicted of crimes, such as individuals who qualify as
mentally disordered offenders (Pen. Code, § 2960 et seq.),
individuals who meet the definition of a sexually violent predator
(Welf. & Inst. Code, § 6600 et seq.), and individuals found not
guilty by reason of insanity (Pen. Code, § 1026 et seq.). The two
mechanisms at issue here—section 6500 commitments and
Murphy conservatorships—differ from these others because they
apply to individuals who have been found incompetent to stand
trial for assaultive felonies but have yet to be convicted of them.
The specific contours of these preconviction mechanisms are
discussed next.
A. Section 6500 commitments
An individual may be civilly committed under section 6500
only if the People prove that (1) he has a “developmental
disability” (§ 6500, subd. (b)(1)), (2) he poses a “danger to
[him]self or others,” which can be established by a prior “finding
of incompetence to stand trial” during a prosecution for several
the mental health court would have failed to consider his
challenge on its merits.
6
felonies, including any “felony involving death, great bodily
injury, or an act which poses a serious threat of bodily harm to
another person” (id., subds. (a)(1) & (b)(1)), and (3) his
developmental disability played a “substantial factor” in “causing
him . . . serious difficulty in controlling his . . . dangerous
behavior” (People v. Cuevas (2013) 213 Cal.App.4th 94, 105-106).
For this purpose, a developmental disability is a “disability
that originates before an individual attains 18 years of age,
continues, or can be expected to continue indefinitely, and
constitutes a substantial disability for that individual.” (§§ 6500,
subd. (a)(2), 4512, subd. (a).) It includes intellectual disabilities.
(Ibid.)
When an individual is initially committed under section
6500, that commitment expires “automatically one year after the
order of commitment is made.” (§ 6500, subd. (b)(1)(A).) When
that individual is recommitted (that is, committed for a
subsequent, temporally contiguous period of time), the mental
health court is to “follow[]” “the same” “procedures” as for an
“initial petition for commitment” (id., § 6500, subd. (c)(1)), which
means the recommitment expires on the one-year anniversary of
the date of the order of recommitment.
B. Murphy conservatorships
Murphy conservatorships are just one of the many types of
civil commitments authorized by the LPS Act for persons who are
“dangerous or gravely disabled” by virtue of mental illness. 4 (§
4 The other types reach persons who are (1) “gravely
disabled” because they are “unable to provide for [their] basic
personal needs for food, clothing, or shelter” due to “a mental
health disorder” (§ 5008, subd. (h)(1)(A)), or due to “impairment
by chronic alcoholism” (id., subd. (h)(2)), or (2) “imminently
7
5008, subd. (h); Conservatorship of John L. (2010) 48 Cal.4th 131,
142 [“The LPS Act governs the involuntary detention, evaluation,
and treatment of persons who, as a result of mental disorder, are
dangerous or gravely disabled.”].)
An individual may be placed in a Murphy conservatorship
only if the People prove that (1) he suffers from a “mental
disease, defect, or disorder,” (2) he has been “found mentally
incompetent” during a prosecution for “a felony involving death,
great bodily harm, or a serious threat to the physical well-being
of another person” after “[t]here has been a finding of probable
cause” regarding that felony, and (3) his “mental disease, defect,
or disorder” is why he “represents a substantial danger of
physical harm to others.” (§ 5008, subd. (h)(1)(B).)
The LPS Act does not define what it means by “mental
disease, defect, or disorder,” but “[c]ourts applying the LPS Act
and similar commitment schemes have sought to fill this gap” by
defining “mental illness and related disorders” as “conditions that
may arise suddenly and, for the first time, in adulthood.” (People
v. Barrett (2012) 54 Cal.4th 1081, 1108 (Barrett).) The term
excludes “persons with intellectual disabilities” (that is, persons
who are developmentally disabled) unless these persons also
suffer from mental illness. (§ 5008, subd. (h)(3).)
When an individual is initially committed under a Murphy
conservatorship, the conservatorship “shall automatically
terminate one year after” the order “appoint[ing] . . . the
conservator” is made. (§ 5361.) When that individual is
recommitted (that is, committed for a subsequent, temporally
contiguous period of time), the mental health court may extend
dangerous” (id., § 5300; In re Smith (2008) 42 Cal.4th 1251, 1265
(Smith)).
8
the conservatorship “for a succeeding one-year period,” which
means the recommitment terminates on the anniversary of the
order of initial commitment. (Id.; accord, Conservatorship of Jose
B. (2020) 50 Cal.App.5th 963, 968-969 [applying these dates].)
II. Analysis
A. Equal protection principles
Both the federal and California Constitutions guarantee
that no person shall be “den[ied] . . . the equal protection of the
laws.” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) ‘“The
right to equal protection of the law is violated when “the
government . . . treat[s] a [similarly situated] group of people
unequally without some justification.””’ (In re Murray (2021) 63
Cal.App.5th 184, 190.) Equal protection analysis consequently
has two steps.
The first, threshold step is to determine whether there are
two groups of individuals who are “‘“similarly situated with
respect to the legitimate purpose of the law”’” but are being
treated differently. (Barrett, supra, 54 Cal.4th at p. 1107,
quoting In re Gary W. (1971) 5 Cal.3d 296, 303.) “If the two
groups are not similarly situated or are not being treated
differently, then there can be no equal protection violation.”
(People v. Castel (2017) 12 Cal.App.5th 1321, 1326.)
However, if the first step is satisfied, the second step is to
ascertain whether the Legislature has a constitutionally
sufficient justification for the differential treatment of the
similarly situated groups. (In re Marriage Cases (2008) 43
Cal.4th 757, 831-832.) What constitutes sufficient justification
varies. “If the law treats people differently on the basis of their
membership in certain ‘suspect class[es]’ (such as their race) or if
the differential treatment ‘affect[s] a fundamental right,’ then the
9
government must satisfy [so-called] [‘]strict[] scrutiny[’] by
demonstrating that the differential treatment . . . is necessary to
serve a compelling interest.” (People v. Love (2020) 55
Cal.App.5th 273, 287, review granted Dec. 16, 2020, S265445,
quoting People v. Chatman (2018) 4 Cal.5th 277, 288.) 5
Otherwise, the challenger must show that the law fails so-called
“rational basis” scrutiny by demonstrating that “there is no
‘rational relationship between the disparity of treatment and
some legitimate government purpose.”’ (People v. Turnage (2012)
55 Cal.4th 62, 74.) 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.”
(Love, at p. 287, quoting Turnage, at pp. 74-75.)
B. Application
Because there can be no dispute section 6500 commitments
and Murphy conservatorships fix different dates for when a
recommitment ends, the equal protection analysis in this case
turns on two questions: (1) Are individuals civilly committed
under section 6500 and Murphy conservatorships similarly
situated for purposes of fixing the end date for a recommitment,
5 There is also an intermediate level of scrutiny that applies
the differential treatment is based on membership in other
suspect classes (such as gender or illegitimacy) (Chatman, supra,
4 Cal.5th at p. 288), but such membership—and hence this level
of scrutiny—is not at issue in this case.
10
and if so, (2) is there a sufficient justification for this differential
treatment?
1. Similarly situated?
To be similarly situated, the groups that the Legislature
treats differently need not—and, indeed, cannot—be “identical.”
(People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee),
superseded on other grounds by section 6608 as stated in People
v. McCloud (2021) 63 Cal.App.5th 1, 14-15.) It is enough that the
two groups have “common features” that render them similar “for
[the] purposes of the law [being] challenged.” (Id. at p. 1202.)
Because a person is eligible for commitment under both
section 6500 and a Murphy conservatorship only if he has been
charged with an assaultive felony, if he has been found
incompetent to stand trial, and if he poses a danger to others by
virtue of his mental deficiency, what differentiates these two
mechanisms for civil commitment is the type of mental deficiency
that renders the committed person dangerous: Section 6500
commitments apply to persons with developmental disabilities,
while Murphy conservatorships apply to persons suffering from
mental illness. (Compare § 6500 with § 5008, subd. (h)(1)(B).) 6
6 Several cases have held that individuals subject to different
civil commitment mechanisms are similarly situated for the
purpose of various procedural protections when the mechanisms
at issue all provide for commitment of the mentally ill (rather
than, as is the case here, one mechanism provides for
commitment of persons with mental illness and the other for
persons with developmental disabilities). These purposes include
whether the period of civil commitment may be indefinite rather
than have a fixed end date (e.g., McKee, supra, 47 Cal.4th at p.
1184 [sexually violent predators and mentally disordered
offenders are similarly situated]), and whether the individual
11
Are developmental disabilities and mental illness different?
Yes.
As our Supreme Court has repeatedly held, “[m]ental
illness and related disorders are . . . conditions that may arise
suddenly and, for the first time, in adulthood.” (Barrett, supra,
54 Cal.4th at p. 1108.) Many forms of mental illness are
treatable, such that “need for treatment may be temporary,” and
the mental illness itself may be “intermittent or short lived.”
(Id.) ‘“[M]ental illness [also] “often strikes only limited areas of
functioning, leaving other areas unimpaired, and consequently . .
. many mentally ill persons retain the capacity to function in a
competent manner.”’” (In re Qawi (2004) 32 Cal.4th 1, 17; accord,
People v. Blackburn (2015) 61 Cal.4th 1113, 1128 (Blackburn).)
Developmental disabilities, by contrast and by definition, “appear
may refuse to testify during the commitment proceedings (e.g.,
People v. Dunley (2016) 247 Cal.App.4th 1438, 1442-1443
[mentally disordered offenders and persons found not guilty by
reason of insanity are similarly situated]; People v. Curlee (2015)
237 Cal.App.4th 709, 721-723 [sexually violent predators, and
persons found not guilty by reason of insanity are similarly
situated]; People v. Alsafar (2017) 8 Cal.App.5th 880, 887
[mentally disordered offenders, sexually violent predators and
persons found not guilty by reason of insanity are similarly
situated]; Conservatorship of J.Y. (2020) 49 Cal.App.5th 220, 229,
231, review granted Aug. 19, 2020, S263044 [LPS Act
conservatees and persons found not guilty by reason of insanity
are similarly situated]; Conservatorship v. E.B. (2020) 45
Cal.App.5th 986, 995-996 [same], review granted June 24, 2020,
S261812; but see Conservatorship of Bryan S. (2019) 42
Cal.App.5th 190, 197-198 [LPS Act conservatees are not similarly
situated to mentally disordered offenders, sexually violent
predators and persons found not guilty by reason of insanity]).
12
early in life,” “never recede,” and involve one or more deficiencies
in “cognitive and intellectual functioning” that “affect [one’s]
ability to ‘make the basic decisions’” regarding legal proceedings
and other matters. (Barrett, at pp. 1103, 1109; Blackburn, at p.
1128.) (Accord, Baqleh v. Superior Court (2002) 100 Cal.App.4th
478, 487 [“The developmental disability that may result in
mental incompetence is different from the mental disorder that
may also have that result.”].)
But do these differences between developmental disabilities
and mental illness justify treating them differently when it comes
to the procedures by which persons suffering from them are
civilly committed? It depends.
Our Supreme Court has “assumed” that persons with
mental illness and persons with developmental disabilities are
similarly situated when it comes to the right to a jury
determination of whether the People have proven the
prerequisites for commitment. (Barrett, supra, 54 Cal.4th at p.
1108; accord, People v. Sweeney (2009) 175 Cal.App.4th 210, 216-
221 [rejecting equal protection challenge only after concluding
that both groups have a right to a jury determination of the
prerequisites].) Ostensibly, this is because the differences in the
type of mental ailment are irrelevant as to whether commitment
should be found by a judge or a jury.
However, our Supreme Court has held that persons with
mental illness and persons with developmental disabilities are
not similarly situated when it comes to whether they are entitled
to a personal advisement of the right to a jury trial and whether
a personal waiver of that right is necessary. (Barrett, supra, 54
Cal.4th at pp. 1108-1109.) That is because persons with
developmental disabilities—unlike persons with mental illness—
13
lack “cognitive and intellectual functioning,” and because their
more “reduced ability to understand, and make decisions about,
the conduct of the proceedings” makes it appropriate to “limit the
personal and procedural role they play” during the commitment
proceedings. (Id. at p. 1109.)
But do the differences between developmental disabilities
and mental illness justify treating them differently when it comes
to the timetable for terminating a one-year period for a
recommitment? In our view, yes.
By definition, mental illness is more fleeting. As noted
above, it comes on in adulthood; it can be “intermittent” and
“short lived”; and it is often treatable. (Barrett, supra, 54 Cal.4th
at p. 1108.) Because an individual’s mental illness can come and
go, there is a greater danger that delay in evaluating his
condition—and delay in his release arising from the time it takes
to litigate recommitment—could result in the unnecessary
commitment of a person who no longer suffers from a mental
illness that poses a danger. Put differently, with mental illness,
it makes sense to fix a termination date for recommitment sooner
rather than later. By contrast, developmental disabilities are not
fleeting. By definition, they come on during childhood or
adolescence and they “never recede.” (Barrett, at pp. 1103, 1109.)
Chances are scant that a person will “recover” from a
developmental disability and hence there is less danger of their
unnecessarily prolonged commitment. Put differently, with
developmental disabilities, time is far less of the essence and
there is less need to fix a termination date for recommitment
sooner rather than later.
Nolasco’s sole response is to assert that he is both mentally
ill and developmentally disabled and that “almost everyone” has
14
a similar dual diagnosis, such that the different end dates for
period of recommitment under section 6500 and a Murphy
conservatorship empower the People to arbitrarily elect which
mechanism to use. This response lacks merit both factually and
legally. Factually, Nolasco offers no evidence to support his
broad generalization that “almost everyone” who suffers from
mental illness also suffers from a developmental disability and
vice versa; the existence of two different mechanisms to address
civil commitment for each tends to refute the notion that a Venn
diagram of the populations of the mentally ill and the
developmentally disabled would be mostly overlapping and
shaded. Furthermore, if Nolasco is indeed a member of both
classes, persons who suffer from a dual diagnosis are likely to be
more dangerous than persons who suffer from mental illness
alone because, as the expert in this case testified, persons who
also have developmental disabilities lack “the coping skills
necessary to manage [their] mental illness.” Thus, persons with
such a dual diagnosis will likely need more time to address their
mental illness than those who suffer from mental illness alone,
which justifies a less strict end date for recommitment. Legally,
the gist of Nolasco’s argument—namely, that there is an equal
protection violation merely because the government is allowed to
choose between two statutes when it prosecutes and thereby
commits a person to the State’s custody—has been rejected by
both the United States Supreme Court and our Supreme Court.
(United States v. Batchelder (1979) 442 U.S. 114, 124-125; People
v. Wilkinson (2004) 33 Cal.4th 821, 838.)
2. Sufficient justification?
Even if we assume that persons civilly committed under
section 6500 and in a Murphy conservatorship are similarly
15
situated for purposes of the timetable for terminating a one-year
period for a recommitment, we must next ask whether there is a
sufficient justification for that differential treatment.
a. What level of justification is needed?
Because our Legislature “may adopt more than one
procedure for isolating, treating, and restraining dangerous
persons” and the “differences will be upheld if justified” (McKee,
supra, 47 Cal.4th at p. 1209; Conservatorship of Hofferber (1980)
28 Cal.3d 161, 171-172 (Hoffeber)), it is critical to know the
degree of justification needed to uphold the different procedures.
Unfortunately, the law in this area appears to be in a state
of flux.
Traditionally, the California courts have applied strict
scrutiny to “claims of disparate treatment in civil commitment.”
(Smith, supra, 42 Cal.4th at p. 1263; Hubbart v. Superior Court
(1999) 19 Cal.4th 1138, 1153, fn. 20; Hofferber, supra, 28 Cal.3d
at p. 171, fn. 8; In re Moye (1978) 22 Cal.3d 457, 465, superseded
on other grounds by Penal Code section 1026.5 as stated in People
v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 663.)
Under this line of precedent, strict scrutiny is deemed
appropriate because the committed person’s “fundamental liberty
interest is at stake.” (Hofferber, at p. 171, fn. 8; Smith, at p.
1263.)
More recently, McKee applied what purported to be a form
of “heightened scrutiny” that appears to be less rigorous than
strict scrutiny but more onerous than rational basis scrutiny.
(McKee, supra, 47 Cal.4th at pp. 1206-1207, 1210-1211 & fns. 13
& 14.) McKee explained that it was not applying the “usual
judicial deference to legislative findings” consonant with rational
basis scrutiny (id. at p. 1206), while simultaneously insisting that
16
it was also not applying strict scrutiny (id. at p. 1210, fn. 13).
Instead, McKee appears to have applied something in between by
“exercis[ing its own] independent judgment of the facts to
ascertain whether the legislative body ‘“has drawn reasonable
inferences based on substantial evidence.”’ [Citation.]” (Id. at p.
1206.)
Most recently, Barrett applied rational basis scrutiny when
evaluating whether equal protection required persons in
commitment proceedings under section 6500 and Murphy
conservatorships both to be personally informed and to
personally waive the right to a jury trial. (Barrett, supra, 54
Cal.4th at p. 1111, fn. 21.)
Because the more recent decisions in McKee and Barrett do
not expressly overrule—or, for that matter, address—the older
cases applying strict scrutiny, the coexistence of the three lines of
cases has created confusion in the Court of Appeal. (Compare
Dunley, supra, 247 Cal.App.4th at pp. 1451-1452 [citing cases
following traditional rule and applying strict scrutiny]; People v.
Field (2016) 1 Cal.App.5th 174, 195-196 [same]; Conservatorship
of J.Y., supra, 49 Cal.App.5th at p. 232 [same] with People v.
Rosalinda C. (2014) 224 Cal.App.4th 1, 13-14 [citing Barrett and
applying rational basis scrutiny]; Landau v. Superior Court
(2019) 32 Cal.App.5th 1072, 1085 [applying rational basis
scrutiny].)
Here, we choose to follow Barrett—and hence to apply
rational basis scrutiny—because Barrett is the most recent
pronouncement by our Supreme Court as to the pertinent level of
scrutiny to apply when comparing divergent civil commitment
procedures. (See Samara v. Matar (2018) 5 Cal.5th 322, 332
[following “[t]he weight of more recent authority”].) Furthermore,
17
Barrett is the authority most on point to this case. (Compare
Barrett, supra, 54 Cal.4th at 1106-1107 [analyzing section 6500
compared with LPS Act] with McKee, supra, 47 Cal.4th at 1196-
1198 [analyzing Sexually Violent Predator Act compared with
Mentally Disordered Sex Offender Act, not guilty by reason of
insanity committees, and LPS Act].)
b. Has that justification been met?
The differential treatment between the end date for the
period of recommitment under section 6500 and under a Murphy
conservatorship withstands rational basis scrutiny. As explained
above, time is more of the essence for persons who suffer from
mental illness alone given the transitory nature of such illness;
thus, our Legislature with regard to Murphy conservatorships
rationally tied the end date for recommitment to the anniversary
of the initial date of commitment for persons suffering from
mental illness alone, but did not do so for persons suffering from
developmental disabilities under section 6500. The Legislature’s
recognition of the difference between these two populations is
legitimate and is rationally related to its selection of different end
dates for periods of recommitment. (Turnage, supra, 55 Cal.4th
at p. 74.)
Nolasco’s chief response is to urge that Barrett is wrongly
decided and to implore us to follow the traditional rule applying
strict scrutiny. Of course, it is not our place to overrule Barrett
(Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 456),
and we have elected to follow Barrett because of its recency and
subject matter relevancy.
18
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
19