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,

Plaintiff and Respondent,

v.

JOSE NOLASCO,

Defendant and Appellant.

 B308627

 (Los Angeles County

 Super. Ct. No.

 ZM050339-01)

 ORDER MODIFYING 

 OPINION AND 

 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:
2

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. 

* * *
3

There is no change in the judgment. 

Appellant’s petition for rehearing is denied. 

——————————————————————————————

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
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,

Plaintiff and Respondent,

v.

JOSE NOLASCO,

Defendant and Appellant.

 B308627

 (Los Angeles County

 Super. Ct. No. ZM050339-

 01)

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, 
2

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.)
3

further and further with each recommitment. Does this “creep” 

of the end date under section 6500 violate equal protection vis-àvis 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.” 
4

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. 
5

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 
6

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.
7

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 
8

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)).
9

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 
10

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.
11

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 
12

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]).
13

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—
14

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 
15

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 
16

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 
17

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, 
18

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.
19

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ