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. B30 8627

(Los Angel es 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
mod ified 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 Mo ye 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 Angel es County Super. Ct. No. ZM050339

- 01)

APPEAL from a n 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 Ro dri quez , Atto r ney General, Lance E. Winters,
Chief Assistant Attorn e y General, Susan Sullivan Pithey,2 Assistant Attorney General, Jaime L. Fuster and Jo seph P. Lee

, Deputy Attorney s General , for Plain tiff and Respondent

. * * * * * * As pert inent here, C al ifornia has tw o statutory mechanisms for detaining , evaluating

, and tre at ing persons who have been declared incompetent to stand trial for a felony that
entail ed a threat of bodily harm

, and who conti nue to pose a danger to others. What pro mpts the use of one mechanism over another is the reason wh y the person is dangerous: When the
reason is a “de velopmental disability,” t he applicable mechanism
is civil commitment under Welfare and Institutions Code section 6500; 1 when the reason is a “mental disease, d efect

, or di so rder,” the applicable mechanism is a so

- called Murphy conservatorship
und er the Lanterman

- Petris

- Short Act ( LPS Act ) ( § 5000 et seq

. )

, § 5008, subd ivision (h)(1)(B)

. 2 Each type of commitment may be renewed annually, but th e end date for th e one

- year

r e com mit me nt period under each mechanism differs: Under

s ection 650 0 , the one

- year period en ds on the anniversary of the
dat e of the re commitment order (§ 6500, subd. (b)(1)); for a Murphy conservatorship, the one

- year period ends on the
annive rs ary of th e dat e of the in itial commitment order (§ 536 1). Because, as is common, re commitment orders un der section 6500
are not ful ly litigated (and hence not issued) until after the anniversary of the date of the initial commitment or der, the end
date s f or sectio n 650 0 re comm it ments typically get pushed out

1 All f urt her statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 The name “Murphy conservatorship” comes from the legislat or who sponsored the statutory amendment creating them. ( Pe ople v. Quiroz (2016) 24 4 Cal.App.4t h 13 71, 1376.)3 further and further with each re commitment. Do es th is “creep”
of the end d ate under section 6500 violate equal protection vis

- à

vis Murphy conservatorships? We conclude th at it d o es not, and
accord in gly a ff ir m the end date for the sec tion 6500

re commitment 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 dev eloped a mental illnes s as we ll

— name ly , a “major depressive disorder” with “psychotic features” that include s hearing and seeing
hallucinations. On May 5, 2017, Nolasco whipped a belt a t police officers
who had arrived on s ce ne to detain him for a poss ibl e mental
health hold an d then tried t o get away by running into oncoming
traf fic. The People charged Nolasco with resisting an executive officer as a felony (Pen. Code, § 69). The criminal charges w er e suspended once t he trial court
referred Nolasco to m ental health court t o evalua te his

c ompetency to stand trial. The mental health court found him incompetent to stand trial. After two years, Nolsaco had not regaine d his competency
to stand trial , and the criminal court’s jurisdict ion was
terminated

. I I. Procedural Backgro un d
A. Initial commitment under section 6500 On June 6, 2019, the People petitioned the mental health

court to commit Nola sc o under section 6500 on the ground that he was a “developmentally disabled person who is danger ous to [him]se lf or others.”4 In s up port o f its pe tition, the People produced expert testimony regarding Nolasco’s mental illness and his developme nt al disability, along with expert opinio n that his developmental disability exacerbated his ment al illness by depriving h im of “the coping ski ll s ” nec essary t o manage his
mental illness. The People also introduced e vi dence of Nolas co’s juvenile adjudicatio ns for assault with a deadly weapon and battery as well as his prior arrests for animal cruelty and domestic battery. Following an evidenti ar y hear ing on A ugust 20, 201 9 , the
mental health court found Nolasco to be an “intellectual ly or deve lopmentally disabled person who is a danger to [h im]self and/or others,” found that his disability was a “substantial factor
in causi ng serious difficulty i n cont rolling [his] dangerous behavior,” and found that th ere was “no alternative to judicial

com mitment.” The court then com mitted defendant to the custody of the State for one year.
B. Re commitment proceedings On August 14, 202 0, the People petitio ne d the mental
h ealth cou rt to re comm it Nolasco for an additional year. At an evidentiary hearing on O ctober 13, 2020, the People produced expert testimony that the “psychiatric regime” Nolasco
received while committed had resulted i n “significant improv em ent” o f h is me ntal ill ness, but that his developme ntal 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 f ellow cons er vatee in
Ju ly 202 0 becaus e Nolsaco got upset when the conservatee asked
Nolasco to come ove r 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
th at Nolasco contin ued to p ose a danger to other s and or dered
hi m re committed to the “least restrictive placement” for one year starting on October 13, 2020, and ending on October 13, 2021.
C. Appeal
Nol a s co filed this timely appeal.
DI SCUSSIO N Nolasco argues that the mental he alth court’s

re commit me nt ord er unde r section 6500 violates equal protection
because it ends on the one

- year anniversary of the date of the

re commitment order (October 13). Had he been re committed i n a Murphy conserv atorship, Nolasco continues, the end da te for his

re commitme nt would hav e be en nearly two months earlier on the anniversary of the date of his initial commitment (August 20).
Because section 6500 commitments and Murphy conservatorship s both apply to pers ons who are found incompetent to stand t rial and who pose a d an ger to oth ers, Nolasco concludes, the differential treatment in the end dates for

re commitment orders violates equal protection. We independently examine whether statutory c lassificati ons off end equal protection , particularly where, as here, they rest o n undisp ute d fac ts

. ( 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.) A s th e P eople poin t out
, Nolasco ’ s c hallenge is forfeited because he did not o bject on e q ual

p r otection 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.” N ot hing in the recor d supports Nolas co ’s casual aspe rsion that6 Nevertheless, we exercise o ur discreti on 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. S up erior Co urt (1 988 ) 200 Cal.App.3d 491, 497 ( Clements ) .) In doing so, any cl aim that his counsel’s forfeiture of the issue

const itutes ineffective assistance is obviated

. I. Pertinent Law on Involuntary Commitment
California has sever al mechanisms for t he involun tary

c ommitment of individuals deemed to prese nt 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 indiv iduals who qualify as mentall y diso rdered offenders (Pen. Code, § 296 0 et s eq

. ),
individua ls 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, § 1 026 et seq

. ). The tw o mechan isms a t issue here

— s ection 6500 commit ments and Murphy conservator sh ips

— differ fr om the se others because they apply to individuals who have been found incompetent to stand trial for assaultive felonies but have yet to be convic ted of them

. The s pe cific co ntours of these pre conviction mechani sms are discussed next.
A. Se ction 6500 commitments
A n individual may be civi l ly committe d under section 6500 only if the People prove that (1) he has a “developmental disability” (§ 6500, subd. (b)(1)), (2) h e poses a “dan ger to [him]self or others,” w hich can be established by a p rior “finding of incompetence to stand trial” duri ng 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 wh ich poses a serious t hreat of bodil y harm to another person” ( id. , subds. (a)(1) & (b)(1)), a n d (3) his developmental disability played a “substa ntial factor” in “causing
him

. . . serious difficulty in controlling his

. . . dangerous behavior” ( People v. Cuevas (2013) 213 C al .App.4th 94, 1 05

- 106). For this purpose, a developmental disability is a “disabil i t y that originates before an individual attains 18 years of age, continues, or can be expected to continue indefinitely , and
constitutes a substantial disability for tha t individu al.” (§ § 6500, subd. (a)(2), 4512

, su bd. (a).) It includes intellectual disabilities. ( Ibid. )
W hen 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 indiv idual is re commit t ed (that is, committed for a subsequent, t e mporally cont iguous 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 th e re commitment expires on the one

- year anniversary of
the date o f the o rder of re commitment.
B. Murphy conservatorships Murphy conservatorships are just one of the many types of
civil commitments authorized by the LP S Act fo r pers ons who are “dangerous or gravely disabled” by virtue of mental illness. 4 (§

4 The other types reach persons who ar e (1) “gravely disabled” because they are “unable to provide for [their] bas ic

pe rsonal nee ds for food, clo th ing

, or sh elte r” due to “a mental health disorder” (§ 5008, subd. (h)(1)(A)), or due to “impairment by chronic alcoholism” ( id. , subd. (h)(2)) , or (2) “imminently8 5008, sub d. (h); Conserv atorship of John L. (2010) 48 Cal.4th 131, 142 [“The LPS Act governs the involuntary detention, evaluation

, and treatme nt of persons who, as a resul t of m ental disorder, are
da ngerous o r gravely disabled

. ”].) An individual may b e placed in a Mu rphy conserv atorship only if the People prove that (1) he suffers from a “mental disease, defect, or disorder,” (2) he has been “fo und mentally
incom pe tent” dur ing a prosecution for “a fel ony involving death, great bodily harm, or a serious threat to the p hysical well

- being of another person” after “[t]here has been a finding of probable cause” regarding that felony, and (3) his “ment al disease, defect

, or disord er” i s why he “represent s 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

a nd similar commitm en t schemes have sought to fill thi s gap” by defining “mental illness and related disor ders” as “cond it ions that

ma y arise suddenly and, for the first time, in adulthood.” ( People
v. Barrett (2012) 54 Cal.4th 1081, 1108 ( Barrett ).) The term excludes “per so ns with i ntell ectual disabilities ” (that is, persons who are developmentally disabled ) unless the se p ersons also suffer from mental illness. (§ 5008, subd. (h)(3).) When an individual is initially committed under a Murphy

conservators hip, the conservat or ship “sha ll au tomatically
termina te one year after” the order “appoint[ing ] . . . the
conservator” is made. (§ 5 361.) When that individual is

re committed (that is, committed for a subsequent, temporally contiguous period of time), the mental health cou rt may exte nd

dang erous” ( id. , § 5300 ; In re Smith (2008) 42 Cal.4th 1251, 1 26 5 ( Smith ))

.9 th e conservatorship “for a succeeding one

- year period,” which
means the re commitment te rminates on the anniversary of the order of initial commitment . ( Id. ; accord, Conservatorship of Jose
B. (2020) 50 Cal.App.5th 963, 968

- 969 [applying thes e dates].)
II. A nalysis
A. Equal protection principles
Both the federal and California Constituti on s 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 pr otect ion of the law is violated when “ the government . . . treat [s] a [similarly situated ] group of p eople unequally without some justification.” ” ’ ( In re Murr ay (2021) 63
Cal. App.5th 184, 190 .) Equal protection analysis cons equentl y has two s te ps. The first , threshold step is to determine whether there are

tw o 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.4t h at p. 1107, quot in g In re G ary W

. (1971) 5 Cal.3d 296, 303.) “If the two

groups are not similarly situated or are not being treated
di fferently, then there can be no equal protection violation.” ( People v. Castel (2017) 12 Cal.App.5th 1321, 1326.)
H owever, if the fir st step is satis fied, the second step is to ascertain whether the Leg islature has a constitutionally sufficient justi fi cation for the differential treatment of the similarly situated groups. ( In re Marriage Cases (2008) 43 Cal.4th 757, 8 31

- 832

. ) What con st itutes su ffici ent justification
varies. “If the law t reats people differently on the b asis of their membership in certa in ‘suspect class[es]’ (such as their race) or if
the differential treatment ‘affect [ s ] a fundamental right,’ then t he10 government must s atisfy [s o

- cal led] [‘]strict[] scrutiny[’] by
demonstr ating that the differential treatme nt

. . . is necessary to serve a compel li ng interest.” ( People v. Love (2020) 55 Cal.App.5th 27 3 , 287, review granted Dec . 16, 2020, S265 445
, quot ing People v. Chat ma n (2018) 4 Cal .5th 277, 288. ) 5
Otherwise

, the challenger must show that the law f ails so

- called
“rational basis ” scrutiny by demonstrating that “there is no ‘rational relationship be tween the disparity of t r eatment and some legitimate government purpose .” ’ ( Peopl e v. Turnage (2012) 55 Cal.4th 62, 74.) Rational basis scrutiny is “exc eedingly deferential: A law will be upheld as long as a court can ‘speculat[e]’ any rational reason fo r the resulting differ en t ial treatment, regardless o f whether the ‘spe cu lation ha s “a foundation in the record,”’ regardless of whether it can be ‘empiri cally substantiated,’ and regardless of whether the Legislature ever ‘articulated’ that reason when ena cting the law.” ( Love

, a t p. 28 7 , quoting Turnage

, at pp. 74

- 75.)
B

. A pplicatio n Be cause there can be no dispute section 6500 commitments and Murph y conservatorships fix different dates for when a

re commitment ends, the equal protection analysis in thi s case turns on two qu es t ions: (1) Are individuals c ivilly committe d

u nd er sectio n 650 0 and Murphy conservatorships similarly situated for purposes of fixing the end date for a re commitment,

5 There is al so an interm edia te level of scrutiny that applies the differential treatment is based on membership in other suspect classes (such as gender or ille gitimacy) ( C hatman

, supra , 4 Cal.5th at p. 288)

, but such membership

— and hence th is level of s cr utiny

— is not a t issue in thi s case.11 and if so, (2) is there a sufficient justification for t his dif ferential
treatment?

1

. Similarly situated?
To be s imilarly situa ted, t he groups that the Legislature treats differently need not

— and, indeed, can not

— 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.A pp .5th 1, 14

- 15 .) It i s enou gh that the two gr oups have “common features” that render them similar “for [ the ] purposes of the law [being] challenged.” ( Id. at p. 1 2 02 .)
Because a person is eligible for commitment under both
section 6500 and a Mu rphy conservatorsh ip onl y if he ha s been charged with a n assaultive felony, if he has been found incompetent to stand trial, and if he poses a danger to others by
virtue of his mental defici ency, what differentiates these two
mechanisms for civil commit men t is the type of m en tal de fic iency
that renders the committed person dangerous : Section 6500 commitments apply to persons with developmental disabilities,
while Murphy conservatorships appl y to persons suffering from mental illness. (Compare § 6500 wi th § 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 provid e for commi tm en t of the men ta lly ill (r athe r than, as is the case here, o ne mechanism provides for commitment of persons with mental illness and the other for persons with dev elopmental disabilities) . These purposes include whether the period of civil com mitment may b e indefinite r at her than h ave a fixed end date (e.g., McKee

, supra , 47 Cal.4th at p. 1184 [sexually violent predators and mentally disorder ed offenders are simil arly situated]), and whether the individual12 Are developmental disabilities and mental illnes s 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 adu lthood.” ( Barrett

, supr a , 54 Cal. 4th at p. 1108 .) Many forms of mental illne ss are treatable, such that “need for treatment may be temporary, ” and
the mental illness itself may be “interm ittent or short lived.” ( Id. ) ‘ “ [ M ] ental illness [also] “ of ten st rikes only limited a reas o f
f

uncti oning, leaving o ther areas unimpaired, an d 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 (201 5 ) 61 Cal.4th 1113, 1128 ( Blackbu rn ) .) Developmental dis abilit ies , by contrast and by definition, “appear

may refuse to testify during the comm itment proce edi ng s (e.g., Pe op le v. Dunl ey ( 2016) 247 Ca l.App.4th 1438, 144 2

- 1443 [mentally disordered offenders and persons found not guilty by reason of insanity are similar ly situated]; People v. Curlee (2015) 237 Cal.App.4th 709, 721

- 723 [sexually vio lent predato rs , an d

persons fo und not gui lty by reason of insanity are simil arly situated]; People v. Alsafar (2017) 8 Cal.App.5th 880, 887 [mentally disordered offenders, sexu ally violent predators and persons found not guilty by reason of insanity are sim ilarly situa ted ] ; Conservat or ship of J.Y

. ( 2020) 49 Cal. App.5th 220, 229, 2 31, review granted A ug. 19, 2020 , S26304 4 [LPS Act conservatees and persons found no t guilty by reason of insanity are similarly situated]; Conservatorship v. E.B. ( 2020) 45 Cal.App.5th 986, 99 5

- 9 96 [sa me] , r ev iew granted Ju ne 2 4, 2020, S261812 ; but see Conse rvatorship of Bryan S. (2019) 42 Cal.App.5th 190, 197

- 198 [LPS Act conservatees are not similarly situated to mentally disordered offenders, sex ually violent predators and persons found not guilt y by reaso n of insanity ]).13 early in life ,” “never recede,” and involve one or more deficienc ies
in “ cognitive and inte llectual functioning ” that “affect [one’s] ability to ‘ma ke the basic decisions’” re garding l egal proceedings
and o ther matters. ( Barrett , at p p. 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 incomp etence is different from th e menta l disor der 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 fr om them are civilly commi tt ed? It d epend s. Our Supreme C ourt has “assumed” that persons with mental illness and persons with developmental disabilities are
si milarly situated when it comes to the right to a jury
determination of whether the Peo ple have proven t he prerequisites f o r commitme nt. ( Barret t , supra , 54 Cal.4th at p. 1108; accord, People v. Sweeney (2009) 175 Cal.App.4th 210, 216

- 221 [rejecting e qual protection challenge only after concluding that both groups have a right to a jury det ermination of the prerequisites].) O stensibly , thi s 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 he ld that persons with
mental illnes s and persons wit h devel opmental di sa bilities a re

n ot 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 neces sary. ( Barrett

, supra , 54 Cal.4th a t pp. 1108

- 1109 .) Tha t is becaus e persons w i th
d evelopmental disabilities

— unlike persons with mental illness

—14 lack “cogniti ve and intellectual functioning ,” and because their more “reduced ability to understand, and make decisions about,
the conduct of t he proceedings” m akes it appropriat e 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 w hen it comes

to the ti metable for t erminatin g a o ne

- year period for a

re commitment? In our view, yes. By definition, mental illness is more fleeting. As noted above, it comes on in adulthood; it can be “intermitten t” and
“short lived”; and it is of te n treatable. ( B arrett , supra , 54 Ca l.4th

at p. 11 08.) Because an individual’s mental illness can come and go, there is a great er danger that delay in evaluating his
condition

— and delay in his release arising from the time it takes to litigate re commit me nt

— could result i n the unnecessary

co mmitmen t 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 re commitmen t sooner rather than later. By con tr ast, developmental dis abilities are no t flee tin g. B y definition, they come on during childhood or adolescence and they “never r ecede.” ( Barrett , at pp. 1103, 1109.)
Chances are scant that a person will “recover” from a
develo pm ental disability and h ence there is less dan ger of their

unnec es sarily pr olong ed 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 rathe r than later.
Nolasco’s sole response is to a ssert that he is b ot h mentall y ill and developmentally disabled and that “almost everyone” has15 a similar dual d iagnosis

, such that the different end dat es for period of re commitment unde r section 6500 and a Mur phy conservatorship em power the People to arbi trarily elect whic h
mechanism to u se. This response lacks merit both factually and leg ally. Factually, Nolasco offers no evidence to support his
broa d generalization that “almost every on e” who suffers from

me ntal illness also suff ers from a developmental disability and
vi ce versa; t he ex istence of two different mechanisms to address
civil commitment for each tends to refute the notion that a Venn diagr am of the popula tions of the mental ly ill and the developme ntally disabled would be mostly overlapping an d
shaded

. Further mo re, if No lasco i s indeed a member of both classes, persons wh o suffer from a dual d iagnosis are likely to be more dangerous than persons who suffer from mental illness alone because, as the expert in this case testified, persons who
als o have developm ent al disabili ties lack “ the coping s kills necessary to man age [their] mental ill ness.” 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,
whi ch justifies a les s strict en d da t e f or re commitment. Legally, the gist of Nolasco’s argument

— namely, that there is an equal protection violation merely because the government is allowed to
ch oose between two statutes when it pros ec utes and thereby

co mm it s a person to the St ate’s cus tody

— h a s 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 justificati on ?
Even if we assume th at perso ns civ illy co mmitted under section 6500 and in a Murphy conservatorship are similarly16 situated for purposes of the timetable for terminating a one

- year period for a re commitment, we must next ask whether there is a
suffici en t j ustification for th at d iffere ntial treatm ent.

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 j us tif ied” ( McKee

, supra , 4 7 Cal.4t h at p . 120 9; 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.
Unf ortunately, the law in this area app ea rs to be in a state
of f lu x. Tr aditi o nally , 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; Hoff erb er , supra , 28 Ca l. 3d at p. 1 71, 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

ap pr opriat e beca use the committed person’s “fundamental liberty
i nterest is at stake.” ( Ho fferber , at p. 171, fn. 8; Smith , at p. 1263.) More recently, McKee applied what purpor ted to be a form of “heightened scrutiny” that appears to be less rigorous th an

s trict scruti ny but more onerous than rational basis scrutin y. ( McKee

, supra , 47 Cal.4t h at pp. 12 06

- 1207, 1210

- 1211 & fns. 13 & 14.) McKee explained that it was not applying the “usual judicial deference to legislative findings” co nsonant with ration al
b asis s crutin y ( id. at p. 1206), while simultaneously insist in g that17 it was also not app lying stric t 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 fac ts to

asce rtain whether the legislative body ‘“has drawn reas on able
inferences based on substantial evidence.”’ [Citation.]” ( Id. at p. 1206.) Most recently, Barrett applied rational basis scrutiny when
evaluatin g whether equal protec tion required perso ns in

comm itment proceedings under section 6500 and Murphy

co ns ervatorships both to be personally in formed and to personally waive the right to a jury trial. ( Barrett

, supra , 5 4 Cal.4th at p. 1111, fn. 21.)
Becaus e the more recent deci sions in McKee and Ba rrett do

not e xpressly overrule

— or, for that matter, addres s

— the older cases applying strict scrut iny, the co existence of the three lines of
cases has created confusion in th e Court of Appeal. (Compare Dunley

, s upra , 247 Cal.App.4th a t pp. 1451

- 1452 [ci ti ng cases follo wing traditional rule and applying strict sc ru tiny]; People v.
Field (2016) 1 Cal.A pp.5th 174, 195

- 196 [same]; Conservatorship of J.Y.

, supra , 49 Cal.App.5 th at p. 232 [same] with People v.
Rosalind a C. (2014) 224 Cal.App .4th 1, 13

- 14 [ citi ng Barrett and

a pplying rational basis scrutiny]; Landau v. Su perior Court (2019) 32 Cal.App.5th 10 72, 1085 [applying rational basis scrutiny].) Here, we cho o se to follow Barrett

— and hence to apply
rational basis s crutiny

— because Barret t is the most r ecen t

pronounc ement by our Supreme Court as to the pertinent lev el of scrutiny to apply when comparing divergent civil commitment procedures. ( See Samara v. Matar (201 8) 5 Cal.5th 322, 332 [following “[t]he weight of more recent authority”] .) Furt hermore,18 Ba rr ett is t he aut hority most on point t o this case . ( Com pa re Barrett

, supra , 54 Cal.4th at 1106

- 1107 [ analyzing s ection 6500 compared with LPS A ct ] with McKee

, sup ra , 47 Cal.4t h at 1196

- 1198 [ analyzing Sexually Viol en t Predator Act compa red wit h Mentally D is ordered Sex Of fender Ac t, not guilty by reason of
ins an ity committees, and LPS Act ]

. )
b. Has that justification been met?
The differential treatment between the end date for the period of re commitment under section 6500 and under a Mu rphy

conservator sh ip withs tands rational basis scrutiny. As explai ne d 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 conservat ors hips rationally ti ed the e nd dat e for re commitment to the annivers ar y of the initial date of commitment f or persons suffering from
mental illness alone

, but did not do so fo r persons suffering from developmental disabilities under section 6500. The Leg i slature’s recognit io n of the diffe rence between these two populatio ns is legit imate and is rationally rela ted to its selection of different end dates for periods of re commitm ent. ( Turnage

, supra , 55 Cal.4th at p. 74.) Nolasco’s chief response is to urge that Barrett is wr on gly
deci ded an d to implore us to follow the t ra ditional rule applying
strict scrutin y. Of course, it is not our place to overrule Barrett ( Auto Equity S ales v. Superior Court (1962) 57 Cal.2d 450, 456),
and we have elected to follow B arrett because of i ts recency and

s ubject matter relevancy

.19 DISPOS IT ION
The order is affirmed.
CERTIFIED FOR PUBLICATION

.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

________________ _

________, J.
CHA VE Z