1

Filed 11/29/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM JOSEPH CANNON,

Defendant and Appellant.

 A163083

 (Mendocino County

 Super. Ct. No.

 SCUK-CRCR-2010-14869-2)

Defendant William Joseph Cannon appeals from a postjudgment 

commitment order in a proceeding under the Sexually Violent Predator Act

(SVPA or Act) (Welf. & Inst. Code, § 6600 et seq.).1 Defendant challenges this 

commitment order on three grounds: (1) the lack of substantial evidence to 

support the trial court’s finding that he qualified as a sexually violent 

predator (SVP), (2) the admission of prejudicial hearsay expert testimony, 

and (3) the violation of his constitutional right to equal protection based on 

the court’s failure to advise him of his right to a jury trial and to obtain his 

personal waiver of this right. We agree with defendant this matter should be 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts I and II of the 

discussion.

1 Unless otherwise stated, all statutory citations are to the Welfare and 

Institutions Code.
2

remanded to the trial court to provide him an opportunity to raise his equal 

protection challenge. We otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Defendant’s 2010 Criminal Conviction.

On December 16, 2010, defendant was convicted by plea of assault with 

intent to commit rape and dissuading a witness. On March 15, 2011, 

defendant was sentenced to a total term of seven years, representing the 

four-year middle term on the assault count, running consecutively to the 

three-year middle term on the dissuading count.

According to the stipulated basis for the plea,

2 on October 3, 2010, 

defendant, wearing a face mask, grabbed the victim, Jane Doe, and 

attempted to drag her off the street to sexually assault her. As Jane 

struggled, defendant warned he would “ ‘F’ing kill her’ ” if she called the 

police. Jane, assisted by two bystanders, was able to escape. Defendant ran 

away but was later apprehended by police. During his subsequent police 

interview, defendant admitted that he was out that day “ ‘hunting females to 

sexually assault them.’ ” He also admitted that when he grabbed Jane, he 

intended to drag her to a secluded area to rape her but was thwarted by two 

passersby.

II. 2016 Petition to Commit Defendant Under the SVPA.

On August 30, 2016, the district attorney filed a petition to commit 

defendant under the SVPA. On October 3, 2016, after the parties submitted 

on expert reports prepared by Drs. Sanders and Miculian, the trial court 

made a finding of probable cause.

2 This stipulation was subsequently admitted into evidence in 

defendant’s SVPA trial.
3

Defendant’s SVPA trial was subsequently continued several times, and 

the court ordered new evaluation reports. The updated evaluations were 

prepared in 2018, revealing a split in opinion among the experts as to 

whether defendant qualified as an SVP.

On February 7, 2018, at a pretrial conference unattended by defendant, 

his counsel waived his right to a jury trial.

III. Defendant’s 2020 SVPA Bench Trial.

Following several additional continuances, defendant’s bench trial 

began October 5, 2020.

A. Investigator Kevin Bailey.

Investigator Kevin Bailey, who interviewed3 defendant after his 

October 2, 2010 arrest, testified for the prosecution. Defendant told Bailey 

about two traumatic brain injuries that preceded his crimes. In 2007 and 

again in 2009, defendant suffered traumatic injury to the prefrontal lobes of 

his brain. In the first incident, defendant fell from a roof while on a trip to 

Guatemala. He lost consciousness. Afterward, defendant became obsessed 

with sex and began consuming large amounts of pornography.

Defendant’s behavioral changes caused conflict with his family, who 

sent him to Utah to live with his aunt. In 2009, while living there, defendant 

was hit by a truck while riding his bike. This second injury enhanced 

defendant’s obsessions with sex and pornography and increased his sexual 

disinhibition. Soon, his aunt had enough and defendant went to live with his 

grandfather. Defendant’s grandfather also became overwhelmed with 

defendant’s sexual tendencies, and he eventually went to live with a 

coworker. This coworker then forced defendant to leave after defendant 

made sexually inappropriate comments to his wife.

3 A recording of this interview was admitted into evidence.
4

Defendant acknowledged to Bailey that following his injuries, he “made 

some pretty irrational decisions . . . .” For example, defendant got into 

trouble with his college administration after getting caught viewing 

pornography in the library. After Bailey confronted defendant with his 

camera, defendant acknowledged there was a video on it that he made of 

himself masturbating.

Defendant also pursued a relationship with his 15-year-old next-door 

neighbor. Initially, the pair developed a mutual interest. However, 

defendant “just got kind of aggressive with her . . . .” One night, defendant 

entered her home through an unlocked window and attempted to “lure her 

out” to have sex. His conduct scared the young girl, and her mother told him 

to stay away. However, defendant returned one day to the girl’s home and 

tried unsuccessfully to enter through a door. Defendant acknowledged to 

Bailey that had the door been unlocked, he “might’ve [pulled her out of the 

house and] raped her . . . .” Instead, the girl’s mother called the police and 

obtained a restraining order against him.

Later, defendant began hunting girls to have sex with, ultimately 

finding and attempting to rape the 16-year-old victim that was the subject of 

his arrest. As defendant told Bailey, he acquired a backpack in which he 

carried a hat and mask that he intended to use to commit rape. For about a 

week prior to his crime, he went out “just looking for a girl that was walking 

by.” Asked to explain, defendant said, “I mean I guess, um, I have like sexual 

urges.” Defendant added that he formulated a plan to commit rape if the 

opportunity presented itself, even though his conduct was “wrong” and would 

harm his victim. “Maybe it was a bad time or something.”

Defendant also told Bailey that on the day of his crime, he went to 

church carrying his bag packed with a hat, mask, and a pen, which he hoped 
5

to use to dupe his prospective victim into thinking he had a knife. 

Defendant’s plan was to force his victim into a “darkened area,” show her the 

pen/faux weapon, “cover her mouth,” “push her down,” “drop her pants” and 

“force her” “[t]o have sex with me.” When Bailey asked what he would have 

been willing to do to avoid getting caught, defendant responded, “I guess 

maybe as far as it’ll take.” While his plan only included rape, defendant 

admitted, “I guess in some way probably [he was prepared to kill his victim if 

necessary].”

Defendant left church within minutes and began walking around. He 

“happened to see this girl” who appeared to be about 16 years old. Defendant 

made sure he could put on his mask “without kinda being seen by other 

people” before running toward the girl from behind. Defendant was surprised 

at how quickly he closed in on her without attracting her attention. However, 

soon after defendant grabbed the girl, a car stopped and two people got out. 

Had that not happened, defendant admitted, “I probably would have had sex 

with the girl and taken her down, um, down into the shed, done my business 

and tried to shut her up, I guess.” Asked how far he would have gone if the 

girl had threatened to call the police, defendant responded, “I mean like I 

said, I never thought about killing someone, but I suppose maybe in the 

moment, it’s possible, yes. I suppose it could happen.”

B. Expert Witnesses.4

Three expert psychologists, each of whom evaluated defendant several 

times, also testified at trial. Drs. Karlsson and Miculian, appearing for the

prosecution, opined that defendant met the qualifications for an SVP and, as 

4 The expert testimony is the subject of several issues raised on appeal. 

Accordingly, the relevant testimony is discussed in much greater detail post

(pp. 9–12).
6

such, needed to stay in custody under treatment (pp. 9–11, post). Dr. 

Dempsey, in turn, testified for the defense that defendant no longer qualified 

as an SVP and should be released to pursue outpatient treatment

(p. 12, post).

IV. The Commitment Order and Appeal.

On December 15, 2020, the trial court issued a written order finding 

that the prosecution met its burden to prove that defendant qualified as an 

SVP. Accordingly, defendant was committed to the State Department of 

State Hospitals–Coalinga (Coalinga) for an indefinite term. Defendant’s 

timely appeal followed.

DISCUSSION

Defendant contends the trial court’s commitment order must be 

vacated because (1) the prosecution failed to prove beyond a reasonable doubt 

that he was an SVP; (2) the court erroneously admitted expert testimony 

consisting of case specific hearsay; and (3) his constitutional right to equal 

protection was violated by the court’s failure to advise him of his right to a 

jury trial or to elicit his personal waiver of this right. We address each issue 

in turn post.

I. The prosecutor proved defendant was an SVP beyond a 

reasonable doubt.

The SVPA provides for the indefinite civil commitment of a convicted 

sexual offender upon completion of his or her prison term if, after trial, he or 

she is found beyond a reasonable doubt to be an SVP.5 (§ 6600 et seq.; People 

5 The process for determining whether an offender is an SVP, including 

whether he or she has a diagnosed mental disorder making him or her a 

danger to the health and safety of others (§ 6600, subd. (a)(1)), takes place in 

several stages, both administrative and judicial. (Hubbart v. Superior Court

(1999) 19 Cal.4th 1138, 1145.) Here, we are concerned with the 

determination that defendant is an SVP, made by the trial judge acting as 
7

v. Williams (2003) 31 Cal.4th 757, 764.) “The purpose of the SVPA is to use a 

civil commitment to treat SVP’s for their current mental disorders and to 

reduce the threat of harm otherwise posed to the public. [Citation.] No 

punitive purpose was intended. (Stats. 1995, ch. 763, § 1.)” (People v. 

Buffington (1999) 74 Cal.App.4th 1149, 1152.)

An offender qualifies as an SVP for purposes of the Act if he or she “has 

been convicted of a sexually violent offense against one or more victims and 

. . . has a diagnosed mental disorder that makes [him or her] a danger to the 

health and safety of others in that it is likely that he or she will engage in 

sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) A “ ‘[d]iagnosed 

mental disorder’ ” is “a congenital or acquired condition affecting the 

emotional or volitional capacity that predisposes the person to the 

commission of criminal sexual acts in a degree constituting the person a 

menace to the health and safety of others.” (§ 6600, subd. (c).)

Thus, under the SVPA, the prosecutor must prove beyond a reasonable 

doubt that the offender (1) has been convicted of a sexually violent offense; 

(2) has a diagnosed mental disorder; (3) as a result of this mental disorder, is 

a danger to the health and safety of others in that he or she is likely to 

engage in acts of sexual violence; and (4) it is necessary to keep him or her in 

a secure facility to ensure others’ safety. (People v. Superior Court (George) 

(2008) 164 Cal.App.4th 183, 194–195; CALCRIM No. 3454.) Here, defendant 

contends the prosecution did not meet its burden as to the third and fourth 

prongs of this standard.

trier of fact after a trial on the People’s commitment petition. (§§ 6602, 

6604.)
8

A. Standard of Review.

Where a defendant challenges the sufficiency of the evidence 

supporting his or her commitment under the Act, courts apply the same test 

that applies in reviewing the sufficiency of the evidence supporting a criminal 

conviction. (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088.) 

Accordingly, we examine the entire record in the light most favorable to the 

commitment order to determine whether it contains substantial evidence 

from which the trier of fact could find the underlying facts true beyond a 

reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576–577.) 

“Substantial evidence” means “ ‘ “evidence which is reasonable, credible, and 

of solid value . . . .” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 396 (Maury).)

As the reviewing court, we accept all logical inferences the trier of fact 

might have drawn from the evidence, both direct and circumstantial. 

(Maury, supra, 30 Cal.4th at p. 396.) “Conflicts and even testimony which is

subject to justifiable suspicion do not justify the reversal of a judgment, for it

is the exclusive province of the trial judge or jury to determine the credibility

of a witness and the truth or falsity of the facts upon which a determination

depends. [Citation.] We resolve neither credibility issues nor evidentiary

conflicts; we look for substantial evidence.” (Id. at p. 403.) Ultimately, it is 

the trier of fact, not the appellate court, that must be convinced of the 

findings beyond a reasonable doubt. “ ‘ “If the circumstances reasonably 

justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also be reasonably reconciled with a contrary finding 

does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 

Cal.3d 919, 933.)
9

B. Evidentiary Record.

1. Prosecutorial Experts.

The prosecution presented testimony from two forensic psychologists 

with the State Department of State Hospitals, Drs. Karlsson and Miculian, to 

opine on defendant’s qualifications as an SVP.

Dr. Karlsson had completed over 500 SVP evaluations for the State 

Department of State Hospitals. Dr. Karlsson evaluated defendant in 2017 

and again in 2019. Both times, he diagnosed defendant with major or mild 

neurocognitive disorder due to traumatic brain injury. Further, Dr. Karlsson 

opined in 2019 that defendant remained a “likely risk” to engage in sexually 

violent predatory conduct due to his diagnosed mental disorder unless he 

remained in custody to complete his sex offender treatment program. While 

defendant had been actively engaged in this program, he had not yet 

completed it.

In reaching these opinions, Dr. Karlsson evaluated defendant with

several actuarial instruments designed to assess a person’s risk factors 

associated with sexual reoffending. Defendant scored a five on the Static-99 

instrument, placing him in the above average group of offenders: 14–17 

percent likely to reoffend within five years based on various static factors. 

Based on the SRA-FV instrument, which considers dynamic factors, 

defendant fell within the “routine group of sex offenders.” However, Dr. 

Karlsson identified defendant as an “outlier” in that neither the Static-99 nor 

the SRA-FV instrument was designed for people, such as defendant, with a 

frontal lobe brain defect. In Dr. Karlsson’s opinion, due to the nature of 

defendant’s injury, his recidivism rate was, in fact, higher (greater than 15 

percent) compared to his reference sex offender group.
10

One of Dr. Karlsson’s primary concerns in reaching this opinion was 

defendant’s current use of pornography at Coalinga and his preference for 

pornography depicting sexually naïve young women ages 18 to 20, which 

defendant labeled the “ ‘school-girl type.’ ” This demographic closely matched 

that of defendants’ victims. To Dr. Karlsson, this fact indicated defendant 

had not yet matured in his sexual interests.

Of further concern was defendant’s admission to Dr. Karlsson that he 

used pornography while in custody to cope with his sexual urges. Yet, 

defendant acknowledged in 2017 that pornography had been a trigger for 

committing his offenses and that, if released, he would need to avoid it.

In addition, defendant had not yet completed the final two modules of 

his treatment program. In the final two modules, defendant would have the 

opportunity to learn and practice tools for dealing with his triggers in the 

community that might otherwise increase his chance of recidivism. Due to 

defendant’s brain injury, Dr. Karlsson opined that defendant required more 

time to absorb the treatment materials and engage in individualized 

treatment (including “neuro-rehab”) before being released. Until defendant 

completes “the entire [sex offender treatment] program at Coalinga,” he 

would not be ready for release.

Lastly, Dr. Karlsson acknowledged defendant had not acted out 

sexually in the last three years and had progressed in therapy. However, he 

cautioned defendant remained emotionally impaired due to his injury. And, 

while defendant is “doing really well when he’s in a structured environment 

like Coalinga,” it is not yet clear that he would have the same success in an 

uncontrolled environment.
11

Dr. Miculian, a psychologist with the State Department of State 

Hospitals who had conducted over 1,000 SVP evaluations,

6 evaluated 

defendant in 2016, 2017 and 2019. He diagnosed defendant each time with 

major mental neurocognitive disorder due to a traumatic brain injury, one 

aspect of which “could be an inability to control one’s sexual impulses.”

Similarly to Dr. Karlsson, Dr. Miculian opined defendant was likely to 

reoffend if released. Dr. Miculian identified two major risk factors that 

increased the likelihood of his reoffending: (1) “spending time with teenagers 

whom he thought looked older than they were” and (2) regularly looking at 

pornography. At Coalinga, defendant continued to watch pornography three 

to four times weekly for one to two hours, which Dr. Miculian found very

problematic. Dr. Miculian also identified as risk factors defendant’s lack of 

any long-term intimate relationship and his poor problem-solving ability due 

to his injury. Thus, while “[defendant is] less of a risk than he was in 

2010 . . . , still he’s a serious well-founded risk given the nature of his 

disorder.” Similarly to Dr. Karlsson, Dr. Miculian assigned defendant a score 

of five on the Static-99 test, placing him in the above average group for 

reoffending.

Lastly, Dr. Miculian opined that defendant continued to have impulse 

control issues, explaining, “[T]here’s going to be issues with understanding 

social situations and persistence and not being apathetic.” As such, 

“[defendant] still continues to need to be in custody so he can persist through 

more parts of treatment before he is released. I anticipate that after he gets 

through the treatment in the hospital, that he will comply with the 

requirements when he is released.”

6 Dr. Miculian had reached negative diagnoses in about 92 percent of 

his evaluations.
12

2. Defense Expert.

Dr. Dempsey, a forensic neuropsychologist, testified for the defense and

disagreed with many of the opinions and methods of Drs. Karlsson and 

Miculian. Dr. Dempsey agreed with Drs. Karlsson and Miculian that 

defendant scored a five on the Static-99 test and, as such, was an above 

average risk for reoffending. Similarly, her dynamic testing placed defendant 

at moderate risk for committing another sexual offense. Yet, while defendant 

was still in the moderate range for reoffense with regard to static and 

dynamic factors, Dr. Dempsey opined that “with regard to neuropsychological 

factors he’s in a much lower range.”

Dr. Dempsey, who first evaluated defendant in 2011 in prison, was 

“astounded” with his improvement when she reevaluated him in 2019. She 

still diagnosed defendant with neurocognitive disorder for head injury 

“because he still does have . . . some deficits.” However, based on several 

neuropsychological tests, Dr. Dempsey found defendant significantly less 

impaired in executive areas of functioning that included inhibition, impulse 

control, cognitive flexibility and perseveration. While defendant was not fully 

healed, he tested in the average range in 2019, while previously “he was in 

the borderline and impaired levels . . . .”

Dr. Dempsey also disagreed with Dr. Karlsson’s decision to “override” 

his clinical testing in order to assign defendant a higher rate of recidivism

based on his injury. According to Dr. Dempsey, his opinion failed to account 

for the fact defendant’s brain had healed significantly in the past few years. 

Dr. Dempsey believed that defendant was no longer volitionally impaired and 

that his use of porn was “healthy” and not a fixation. Defendant would “do 

well” in outpatient treatment, in part because he had a stable family life and

a large peer group and was intellectually functioning prior to his injury.
13

C. Substantial evidence proved defendant was likely to 

reengage in acts of sexual violence.

Based on this record, we reject defendant’s contention that the 

prosecution failed to prove beyond a reasonable doubt that, due to his 

diagnosed mental disorder, he was likely to reoffend.

Under the Act, an offender cannot qualify as an SVP “based on prior 

offenses absent relevant evidence of a currently diagnosed mental disorder 

that makes the person a danger to the health and safety of others in that it is 

likely that he or she will engage in sexually violent criminal behavior.” 

(§ 6600, subd. (a)(3).) However, the statute “does not require proof of a recent 

overt act while the offender is in custody.” (Id., subd. (d).)7 For purposes of 

the SVPA, the phrase “ ‘likely to engage in acts of sexual violence’ (italics 

added), as used in section 6601, subdivision (d), . . . requires a determination 

that, as the result of a current mental disorder which predisposes the person 

to commit violent sex offenses, he or she presents a substantial danger—that 

is, a serious and well-founded risk—of reoffending in this way if free.” 

(People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916 (Ghilotti); 

7 The SVPA also contains “ ‘provisions for the evaluations to be updated

or replaced after the commitment petition is filed in order “to obtain up-todate evaluations, in light of the fact that commitment under the SVPA is

based on a ‘current’ mental disorder.” ’ [Citation.]” (In re Butler (2020) 55

Cal.App.5th 614, 628.) “After commitment, an SVP is evaluated every year to

consider ‘whether the committed person currently meets the definition of a

sexually violent predator and whether conditional release to a less restrictive

alternative, pursuant to Section 6608, or an unconditional discharge,

pursuant to Section 6605, is in the best interest of the person and conditions

can be imposed that would adequately protect the community.’ (§ 6604.9.)

Under certain circumstances, an SVP may petition the court for either

conditional release (§ 6608) or unconditional discharge (§ 6605).” (In re

Butler, at pp. 628–629.)
14

People v. Williams, supra, 31 Cal.4th at p. 772 [“ ‘there must be proof of

serious difficulty in controlling behavior’ ”].)

Here, all three experts testified defendant had a qualifying mental 

disorder and posed an above average or moderate risk of reoffending based on

various actuarial instruments, including the Static-99, SRA-FV and Stable2007. The two prosecution experts, Drs. Karlsson and Miculian, further 

agreed defendant remained likely to reoffend if released before completing his 

treatment program. They found it particularly troublesome that defendant 

continued to view pornography three or four times a week for one to two 

hours at a time and that he preferred the “ ‘school-girl type,’ ” meaning 

sexually inexperienced young women. Defendant’s victims were similarly 

young in age, and he acknowledged that viewing porn contributed to his 

predatory behavior. Dr. Karlsson and Dr. Miculian’s shared opinion, 

supported by the record, constitutes substantial evidence that defendant

currently presents a serious and well-founded risk of reoffending. (Ghilotti, 

supra, 27 Cal.4th at p. 916.)

In so concluding, we acknowledge defense expert, Dr. Dempsey,

disagreed with Drs. Karlsson and Miculian and insisted defendant was no 

longer volitionally impaired. However, this issue was resolved against

defendant by the court, acting as trier of fact. It is not our role on appeal to

reweigh or reinterpret the experts’ testimony. (People v. Mercer (1999) 70

Cal.App.4th 463, 466–467 [“the jury could reasonably believe the evidence of 

the prosecution witnesses and reject that of the defense witness [that 

defendant could not control his sexually violent behavior and would likely 

reoffend if released]”].) Reading the relevant testimony in a light favorable to

the trial court’s judgment as the law requires (ibid.), there is no cause to

favor Dr. Dempsey’s opinion over theirs.
15

We also acknowledge defendant’s point that neither prosecution expert

was an expert in the field of neuropsychology, as was Dr. Dempsey. Based on 

this fact, defendant argues the prosecution failed to offer admissible evidence 

that he was currently neurocognitively impaired, leaving undisputed Dr. 

Dempsey’s testimony that he was not currently neurocognitively impaired. 

This argument confuses our legal standard. The SVPA required proof that 

defendant currently had a diagnosed mental disorder. (§ 6600, subd. (a)(1).) 

There is no dispute that he did. However, the SVPA did not require proof 

that he was currently neurocognitively impaired. (See People v. Williams, 

supra, 31 Cal.4th at p. 773 [“ ‘the science of psychiatry, which informs but 

does not control ultimate legal determinations, is an ever-advancing science, 

whose distinctions do not seek precisely to mirror those of the law’ ”].)

Accordingly, for the reasons stated, we affirm the trial court’s finding 

that defendant currently presented a serious and well-founded risk of 

reoffending if released from custody. (Ghilotti, supra, 27 Cal.4th at p. 916.)

D. Substantial evidence proved it was necessary to keep 

defendant in custody to ensure the health and safety of 

others.

Defendant contends substantial evidence also failed to support the 

court’s finding that it was necessary to keep him in custody to ensure the 

health and safety of others. Defendant’s argument is based primarily on his 

“track record” in the hospital of not committing any sexually unacceptable 

acts. This argument fails for several reasons.

First, as stated ante, the SVPA “does not require proof of a recent overt 

act while the offender is in custody.” (§ 6600, subd. (d).) Second, 

notwithstanding the lack of evidence of any recent sexual misconduct, our

record contains substantial evidence supporting the court’s finding that 
16

defendant required further in-custody treatment before he could be safely 

released into the community. (See CALCRIM No. 3454.)

Dr. Karlsson testified defendant’s continued porn use, with a 

preference for “the schoolgirl-type,” was concerning because he “had sex 

offenses in the past with a certain kinds of girls that he has interest in.· To 

me, this shows that he hasn’t really moved on maturely into woman in his 

own age.” (Sic.) In Dr. Karlsson’s opinion, defendant also required

individualized treatment to address his particular traumatic brain injury, 

which hindered him from absorbing his treatment materials. And, both Dr. 

Karlsson and Dr. Miculian opined defendant needed to complete the third 

and fourth modules of his treatment program in order to learn necessary 

tools for dealing with his “triggers” once he leaves the institutional setting. 

Without doing so, defendant’s impulsivity remained a concern.

Finally, there was evidence defendant had, in the past, declined to 

participate in certain aspects of his treatment, once because he deemed it 

unnecessary and another time because he preferred to sleep in. Dr. Dempsey 

dismissed these incidents. Nonetheless, a “patient’s refusal to cooperate in 

any phase of treatment may therefore support a finding that he ‘is not 

prepared to control his untreated dangerousness by voluntary means if 

released unconditionally to the community.’ ” (People v. Sumahit (2005) 128 

Cal.App.4th 347, 354–355.)

Defendant interprets the record as showing that Drs. Karlsson and 

Miculian preferred he remain in custodial treatment, not that it was 

necessary. (See Ghilotti, supra, 27 Cal.4th at p. 929 [the SVPA does not 

require an individual “to complete a prescribed program of treatment under 

the Director’s supervision in order to be eligible for outright release”].)

Defendant also notes the prosecution’s failure to offer a neurological 
17

assessment that “could constitute substantial evidence that custodial 

treatment was necessary.”

Defendant again misconstrues our standard. As stated, we draw all 

reasonable inferences in favor of the court’s judgment. (People v. Mercer,

supra, 70 Cal.App.4th at pp. 466–467.) Viewed in this light, we reasonably 

interpret Dr. Karlsson’s and Dr. Miculian’s testimony to support the finding 

that due to defendant’s diagnosed mental disorder, he currently presents “a

serious and well-founded risk . . . of criminal sexual violence unless 

maintained in an appropriate custodial setting which offers mandatory 

treatment for the disorder.” (Ghilotti, supra, 27 Cal.4th at p. 895.) The fact 

that Dr. Dempsey opined defendant would “do well” in outpatient treatment 

does not alter our conclusion. The trial court was entitled to reject this 

position. (Mercer, supra, at p. 467.)

Thus, we conclude defendant’s failure to complete treatment, 

considered in light of his ongoing pornography use and the nature of his 

mental disorder and its impact on his volitional capacity, provides 

substantial evidence that he will, if released, “represent a substantial danger

of committing similar new crimes . . . .” (Ghilotti, supra, 27 Cal.4th at p. 924, 

italics omitted.)

II. The court did not erroneously admit expert testimony that 

included case-specific hearsay.

Defendant next contends the trial court erred by admitting Dr. 

Karlsson’s testimony regarding “conclusions purportedly reached by 

neuropsychologist Dr. Dinishak after he evaluated [defendant].” He relies on 

People v. Sanchez (2016) 63 Cal.4th 665, which held: “When any expert

relates to the jury case-specific out-of-court statements, and treats the

content of those statements as true and accurate to support the expert’s

opinion, the statements are hearsay. It cannot logically be maintained that
18

the statements are not being admitted for their truth.” (Sanchez, supra, 63

Cal.4th at pp. 686, 670; see Evid. Code, § 801, subd. (b).) An expert therefore

“cannot . . . relate as true case-specific facts asserted in hearsay statements,

unless they are independently proven by competent evidence or are covered

by a hearsay exception.” (Sanchez, at p. 686.)

Whether a trial court erred in admitting hearsay expert testimony in 

violation of Sanchez is reviewed for abuse of discretion. (Bennett v. Superior 

Court (2019) 39 Cal.App.5th 862, 876.) Under this standard, the trial court’s 

ruling will not be disturbed “ ‘ “ ‘unless the trial court exercised its discretion 

in an arbitrary, capricious, or patently absurd manner that resulted in a 

manifest miscarriage of justice.’ ” ’ ” (People v. Rogers (2013) 57 Cal.4th 296, 

326.) Trial court error that rests on an error of law is an abuse of discretion. 

(Bennett, at p. 876.)

Here, defendant points to two supposedly problematic statements 

during Dr. Karlsson’s testimony. First, Dr. Karlsson testified on direct 

examination that “various neuropsychological tests . . . suggest[] that 

[defendant] still has various kinds of impairments,” a consideration Dr. 

Karlsson factored into his evaluation. Then, on cross-examination, Dr. 

Karlsson confirmed that he relied on Dr. Dinishak’s neuropsychological 

testing, and that Dr. Dinishak, in his 2017 assessments, “discuss[ed] 

[defendant’s] impairments and [found] him apparently more impaired than 

Dr. Dempsey.” We find neither error nor prejudice.

Under the SVPA, state evaluators such as Dr. Karlsson are called upon 

to conduct updated evaluations of the offender, which “shall include review of 

available medical and psychological records, including treatment records, 

consultation with current treating clinicians, and interviews of the person 

being evaluated, either voluntarily or by court order.” (§ 6603, subd. (d)(1).) 
19

This rule is consistent with standard rules of evidence. Evidence Code 

section 801, subdivision (b) allows an expert to render an opinion “[b]ased on 

matter (including his special knowledge, skill, experience, training, and

education) perceived by or personally known to the witness or made known to 

him at or before the hearing, whether or not admissible, that is of a type that 

reasonably may be relied upon by an expert in forming an opinion upon the 

subject to which his testimony relates, unless an expert is precluded by law 

from using such matter as a basis for his opinion.” Evidence Code section 

802, in turn, allows an expert to “state on direct examination the reasons for 

his opinion and the matter (including, in the case of an expert, his special 

knowledge, skill, experience, training, and education) upon which it is based, 

unless he is precluded by law from using such reasons or matter as a basis for 

his opinion.”

Here, Dr. Karlsson complied with these statutory rules in reviewing Dr. 

Dinishak’s test findings, along with defendant’s other medical records, as 

part of his evaluation. (§ 6603, subd. (d)(1).) Dr. Karlsson also confirmed 

that his own opinions regarding defendant were based on his analysis of all 

the information that he reviewed, including defendant’s treatment records

and test findings. As such, Dr. Karlsson did not run afoul of Sanchez. 

(People v. Leon (2015) 61 Cal.4th 569, 603 [“testimony relating the testifying

expert’s own, independently conceived opinion is not objectionable, even if

that opinion is based on inadmissible hearsay. . . . The hearsay problem 

arises when an expert simply recites portions of a report prepared by 

someone else”].)

Moreover, the record reflects that the trial court excluded and struck

any reference to the results of Dr. Dinishak’s neuropsychological testing on 

the grounds that it was a case-specific fact. This ruling reflects that the court 
20

was well aware of the Sanchez rule. And, even aside from this ruling, the law 

requires that we presume the trial court properly performed its judicial duty, 

including its duty while acting as trier of fact to “ ‘ “ignore material it knows 

is incompetent, irrelevant, or inadmissible.” [Citation.] “Only proof that the

evidence actually figured in the court’s decision will overcome these

presumptions. [Citations.] Clearly, the mere fact that the court heard or

read the evidence is not sufficient to overcome the presumptions.” ’ ” (People 

v. Presley (2021) 65 Cal.App.5th 1131, 1143.) Defendant points to nothing in 

the record indicating the trial court violated this rule.

III. Equal Protection Challenge.

Last, defendant contends his constitutional right to equal protection 

was violated by the court’s failure to advise him of his right to a jury trial or 

to elicit his personal waiver of this right. Defendant reasons (1) he is 

similarly situated to defendants facing involuntary civil commitment as a 

mentally disordered offender (MDO) (Pen. Code, § 2960 et seq.) and those 

who plead not guilty by reason of insanity (NGI) (Pen. Code, § 1026.5), yet 

(2) he is treated less favorably than those groups because commitment under 

the SVPA does not require the personal waiver of a jury trial.

“Decisions by this court and the United States Supreme Court . . . have 

used the equal protection clause to police civil commitment statutes to ensure 

that a particular group of civil committees is not unfairly or arbitrarily 

subjected to greater burdens.” (People v. McKee (2010) 47 Cal.4th 1172, 1199 

(McKee I) [collecting cases].) Relevant here, the SVPA affords an offender 

facing involuntary civil commitment the right to a jury trial. (§ 6603, subd. 

(a).) However, “[i]f the person subject to this article or the petitioning 

attorney does not demand a jury trial, the trial shall be before the court 

without a jury.” (§ 6603, subd. (f).) Thus, there is no requirement that the 
21

offender personally waive his or her right to a jury trial after being advised 

by the court of the implications of doing so. (People v. Washington (2021) 72 

Cal.App.5th 453, 463 (Washington) [“the SVPA does not contain language 

requiring a jury trial advisement or a personal waiver of that right, evincing 

a legislative intent not to provide these procedural protections”].)

In contrast, an offender facing involuntary civil commitment under 

either the MDO or the NGI statute is entitled to a jury trial unless he or she, 

having been advised by the court of this right, personally waives it. (Pen. 

Code, §§ 2972, subd. (a)(1) [“court shall advise the person of the right to be 

represented by an attorney and of the right to a jury trial”], (a)(2) [“trial shall 

be by jury unless waived by both the person and the district attorney”], 

1026.5, subd. (b)(3)–(4) [same].) Thus, as reflected in the statutory language, 

“the Legislature intentionally established a different framework for a 

defendant’s exercise of his or her right to a jury trial in an SVP proceeding, 

creating a presumption that the trial would be by the court unless demanded 

by the defendant.” (Washington, supra, 72 Cal.App.5th at p. 468.) The 

question raised is whether this legislative distinction violates defendant’s 

equal protection rights.

A. No Forfeiture.

We first address the People’s threshold argument that defendant 

forfeited his equal protection challenge by failing to bring it below. Several 

courts have rejected this argument based on reasoning with which we agree. 

While a constitutional right may be forfeited if not timely asserted in the

lower court (People v. McCullough (2013) 56 Cal.4th 589, 593), we have

discretion to consider the claim on the merits if it presents a pure question of

law and it is unclear whether the appellant had the opportunity to raise the

argument below. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)
22

Such is the case here. Defendant’s equal protection challenge raises a

pure question of law, and it does not appear he had the opportunity to raise it

below. (See People v. Nolasco (2021) 67 Cal.App.5th 209, 217 (Nolasco)

[exercising discretion to consider equal protection challenge to statute for 

civil commitment of developmentally disabled individual “because it presents 

an important question of public concern”]; People v. Magana (2022) 76 

Cal.App.5th 310, 321 (Magana).) As the Washington court aptly explained: 

“Although Washington’s attorney failed to argue that Washington was

entitled to a jury trial absent a personal waiver by Washington after a jury

trial advisement, it is hard to envision how counsel could have asserted this

claim. . . . The only way Washington could have asserted an equal protection

challenge in the trial court would have been for his attorney to request the

trial court advise Washington of his right to a jury trial and take a personal

waiver of that right. Then, if the court declined to do so based on the absence

of a requirement in the SVPA, Washington’s attorney could have argued not

doing so would violate equal protection principles. But presumably,

Washington’s attorney believed Washington wanted to proceed with a court

trial (which may or may not have been the case), and thus, counsel would

have been unlikely to demand the court advise Washington of his jury trial

right and take a personal waiver. Yet had the civil commitment proceeding

been under the MDO or NGI statutes, the court would have been required to

advise Washington of his right to a jury trial and to take his personal waiver

of that right, to ensure he was aware of and making a knowing, intelligent,

and voluntary waiver of that right. Under these unusual circumstances, we

decline to find forfeiture . . . .” (Washington, supra, 72 Cal.App.5th at pp. 

473–474.)
23

Similarly to the Washington court, we presume defense counsel

reasonably believed defendant wished to waive his right to a jury trial and, as

such, reasonably believed it was unnecessary to demand that the trial court

advise him of his jury trial rights before raising an equal protection claim. 

(Conservatorship of John L. (2010) 48 Cal.4th 131, 156–157 [“in the absence 

of any contrary indication, the superior court may assume that an attorney is 

competent and fully communicates with the proposed [committee] about the 

entire proceeding”]; People v. Ngo (1996) 14 Cal.4th 30, 37 [an attorney 

admitted to the California State Bar is presumptively competent].) Under 

these circumstances, the forfeiture doctrine should not apply.

B. Equal Protection Principles.

“The constitutional guaranty of equal protection of the laws means 

simply that persons similarly situated with respect to the purpose of the law 

must be similarly treated under the law. [Citations.] If persons are not 

similarly situated for purposes of the law, an equal protection claim fails at 

the threshold. [Citation.] The question is not whether persons are similarly 

situated for all purposes, but ‘whether they are similarly situated for 

purposes of the law challenged.’ [Citation.]” (People v. Buffington, supra, 74 

Cal.App.4th at p. 1155.)

“Where classes of persons are similarly situated, ‘[t]he extent of 

justification required to survive equal protection scrutiny in a specific context 

depends on the nature or effect of the classification at issue.’ ” (Magana, 

supra, 76 Cal.App.5th at p. 322.)

C. Equal Protection Analysis.

The People concede SVP’s are similarly situated to MDO’s and NGI’s 

for purposes of the jury trial laws in question. (McKee I, supra, 47 Cal.4th 

1172, 1203 [“MDO’s and SVP’s are similarly situated for our present 
24

purposes”]; Magana, supra, 76 Cal.App.5th at p. 322.) Accordingly, we turn 

directly to whether the state has “some justification for this differential 

treatment.” (McKee I, at p. 1203.) The first step is deciding the appropriate 

level of scrutiny of the state’s proposed justification.

“Because of the fundamental interests at stake, equal protection 

principles are often invoked in civil commitment cases to ensure that the 

statutory scheme applicable to a particular class of persons has not treated 

them unfairly in comparison with other groups with similar characteristics.” 

(People v. Barrett (2012) 54 Cal.4th 1081, 1107 (Barrett).) Yet, decisions from 

the Courts of Appeal have reached differing conclusions about the level of 

scrutiny appropriate for assessing distinct claims of disparate treatment in 

civil commitments. (Compare Nolasco, supra, 67 Cal.App.5th at pp. 222–225 

[applying rational basis in the context of developmental disability 

commitment but acknowledging that “the law in this area appears to be in a 

state of flux”] and People v. Buffington, supra, 74 Cal.App.4th at p. 1156 

[“Strict scrutiny is the correct standard of review in California for disparate 

involuntary civil commitment schemes because liberty is a fundamental 

interest”].)

The common understanding is: “In ordinary equal protection cases not 

involving suspect classifications (such as race) or the alleged infringement of 

a fundamental interest (such as the right to vote or to pursue a lawful 

occupation), these legislative distinctions are upheld if they have a rational 

relationship to a legitimate state purpose. [Citation.] If the distinction, 

however, involves a suspect classification or infringes on a fundamental 

interest, it is strictly scrutinized and is upheld only if it is necessary to 

further a compelling state interest. . . . ([Citation]; Hubbart v. Superior

Court, supra, 19 Cal.4th at p. 1153, fn. 20.)” (People v. Buffington, supra, 74 
25

Cal.App.4th at pp. 1155–1156.) As one court recently noted, rational basis 

scrutiny is “ ‘exceedingly deferential: A law will be upheld as long as a court 

can “speculat[e]” any rational reason for the resulting differential treatment, 

regardless of whether the “speculation has ‘a foundation in the record,’ ”

regardless of whether it can be “empirically substantiated,” and regardless of 

whether the Legislature ever “articulated” that reason when enacting the 

law.’ [Citation.]” (Nolasco, supra, 67 Cal.App.5th at pp. 209, 220–221.)

Strict scrutiny, on the other hand, requires the state to prove it has “a

compelling interest that justifies the law and that the distinctions, or

disparate treatment, made by that law are necessary to further its purpose.

(Warden v. State Bar (1999) 21 Cal.4th 628, 641 [citations].) Alternatively

stated, applying the strict scrutiny standard, a law “is upheld only if it is

necessary to further a compelling state interest. [Citation.]” (People v. 

McKee (2012) 207 Cal.App.4th 1325, 1335 (McKee II).)

Several courts have recognized that, while civil commitments in 

general implicate an individual’s fundamental liberty interest, not all 

legislative enactments involving civil commitments directly impact this 

liberty interest. On the one hand, courts have considered equal protection 

challenges to civil commitment statutes governing who had the burden of

proof when the committed individual seeks release, and have found strict 

scrutiny appropriate. (E.g., McKee II, supra, 207 Cal.App.4th at p. 1348

[applying strict scrutiny review to reject defendant’s equal protection 

challenge to the SVPA provision placing the burden on the committed person

to prove he or she should be released, where the MDO provision provided for

a one-year commitment after which release was automatic unless the People 

proved beyond a reasonable doubt the person should be recommitted for 

another year].) On the other hand, courts have considered equal protection 
26

challenges to civil commitment statutes relating, as here, to secondary or 

ancillary trial procedures that do not necessarily impact the individual’s 

fundamental rights. Under these circumstances, rational basis review was 

applied. (Magana, supra, 76 Cal.App.5th at p. 324 [“Although the indefinite 

commitment of an alleged SVP affects the individual’s fundamental right to 

liberty, ensuring an alleged SVP has meaningful access to the statutory right 

to a jury trial, while essential to the exercise of that right, does not affect a 

fundamental right”]; Nolasco, supra, 67 Cal.App.5th at p. 225.)

In Barrett, similar to here, the California Supreme Court addressed the 

equal protection challenge of an intellectually disabled person to the 

Legislature’s failure to expressly authorize jury trials or require jury trial 

advisements in civil commitment proceedings under section 6500. (Barrett, 

supra, 54 Cal.4th at pp. 1088–1089.) Applying the rational basis standard of 

review, the court rejected the defendant’s claim that equal protection 

principles required that section 6500 proceedings involve the same jury trial 

safeguards that apply under the Lanterman-Petris-Short Act (§ 5000 et seq.)

to proceedings in which confined patients posing a “ ‘demonstrated danger’ as 

a result of ‘mental disorder or mental defect’ ” faced 180 days of civil 

commitment. (Barrett, supra, 54 Cal.4th at pp. 1106, 1111, fn. 21.) The 

court’s majority reasoned: “Contrary to what Barrett implies, she has not

been singled out for harsh and unfair treatment in this regard. Of the nine

commitment procedures we have listed above, a majority (including § 6500

et seq.) either do not reference jury trial matters at all (such that a right to

jury trial on request has been constitutionally implied), or they say nothing

about advisements or waivers of any jury trial right otherwise provided

therein. By the same token, variations in the other commitment schemes

suggest no uniform set of jury trial procedures exists or was withheld from
27

Barrett. There is nothing unusual or unconstitutional about the manner in 

which these statutes have evolved over time.” (Id. at p. 1110, fns. omitted; 

accord, McKee I, supra, 47 Cal.4th at pp. 1210, fn. 13 [“we strongly disagree 

with the concurring and dissenting opinion’s characterization of our view as 

being ‘that every detail of every civil commitment program is subject to strict 

scrutiny’ ”], 1223 (conc. & dis. opn. of Chin, J.) [“A person may have a 

fundamental interest in his or her liberty, but I question whether this 

fundamental interest extends to all procedures whereby decisions involving 

personal liberty are made. . . . [C]ourts from other states that have 

considered the question have overwhelmingly concluded that strict scrutiny 

does not apply to equal protection challenges to civil commitment 

programs”].)8

We agree with our appellate colleagues in Magana and Nolasco that 

Barrett, and its use of the rational basis standard, governs our case. 

8 The McKee I court held that “when certain due process protections for 

those civilly committed are guaranteed by statute, even if not constitutionally 

required, the denial of those protections to one group must be reasonably 

justified in order to pass muster under the equal protection clause.” 

(McKee I, supra, 47 Cal.4th at p. 1207.) The court then remanded the case for 

the trial court to decide in the first instance whether the People “can 

demonstrate the constitutional justification for imposing on SVP’s a greater 

burden than is imposed on MDO’s and NGI’s in order to obtain release from 

commitment.” (Id. at pp. 1208–1209.) In doing so, the court cited In re Moye

(1978) 22 Cal.3d 457, 465–466, which applied the strict scrutiny standard to 

an equal protection challenge based on the less favorable treatment afforded 

NGI’s as compared to MDO’s with respect to the statutory commitment 

period and burden of proof. (McKee I, at pp. 1208–1209.) The McKee I court 

did not expressly hold that the strict scrutiny standard should apply on 

remand. One appellate court that analyzed McKee I concluded that the

McKee I court in fact applied “a form of ‘heightened scrutiny’ that appears to 

be less rigorous than strict scrutiny but more onerous than rational basis 

scrutiny.” (Nolasco, supra, 67 Cal.App.5th at pp. 224–225.)
28

(Magana, supra, 76 Cal.App.5th at p. 324; Nolasco, supra, 67 Cal.App.5th at 

p. 225 [“we choose to . . . apply rational basis scrutiny—because Barrett is the 

most recent pronouncement by our Supreme Court as to the pertinent level of 

scrutiny to apply when comparing divergent civil commitment procedures”].) 

However, in doing so, we do not suggest that the rights to a jury trial 

advisement and personal jury trial waiver are only marginally significant or 

that the rational basis standard is toothless. As powerfully explained by 

Justice Liu in his Barrett concurrence/dissent: “Whether or not an 

advisement alters the ultimate choice to proceed with or without a jury, it 

expresses the legal system’s respect for the individual as a participant in, and 

not a mere object of, the commitment proceedings. For those who are capable 

of understanding it, an advisement by the court recognizes their dignity as 

well as their ability to comprehend and possibly participate in an important 

aspect of a proceeding that may adversely and irreversibly shape the rest of 

their lives. Having extended this recognition to some persons with mental 

[disorders], the Legislature must have an actual, considered rationale for not 

extending it to others.” (Barrett, supra, 54 Cal.4th at p. 1149 (conc. & dis. 

opn. of Liu, J.).)

With this in mind, we return to the record to determine whether it 

contains a constitutional justification for the state’s failure to grant SVPA 

defendants the same rights to a jury advisement and personal jury trial 

waiver as the MDO and NGI statutes. Because defendant did not raise his 

equal protection claim below, the People were unaware of the need to make 

this showing in the appropriate venue. Nonetheless, the People identify two

possible rationales in their respondent’s brief for this legislative difference: 

(1) the Legislature could have determined that SVP’s as a class pose a greater 

safety risk to society than MDO’s or NGI’s, warranting weaker jury trial 
29

rights; and (2) the Legislature could have determined “an alleged SVP’s right 

to a fair trial would be best protected by a judge indisputably capable of 

examining such highly inflammatory evidence in an impartial [manner]” 

rather than a jury.9

Neither rationale is sufficient for purposes of rational basis review. 

First, as aptly stated by our appellate colleagues in Washington and Magana, 

“[W]e have difficulty seeing how the dangerousness of an SVP would justify 

denying an alleged SVP the procedural protections for the right to a jury trial 

afforded other civil committees, especially given the significant liberty 

interests at stake for an alleged SVP facing a potential indefinite 

commitment.” (Washington, supra, 72 Cal.App.5th at p. 474 [distinguishing 

McKee II, wherein the reviewing court affirmed the trial court’s finding that 

the People had met their burden to show SVP’s pose a greater danger to 

society than MDO’s and NGI’s, thereby justifying differential treatment as to 

the commitment term and burden to obtain release from commitment]; 

Magana, supra, 76 Cal.App.5th at p. 352.)

Moreover, given the central role of the jury trial in our legal system, we 

also have difficulty accepting that our Legislature would deem it necessary or 

appropriate to discourage jury trials in order to protect an alleged SVP’s

access to a fair trial. In defendant’s words, “[s]uch a cynical view of juries is 

9 The People rely on the fact that the SVPA expressly provides that if a 

jury trial is demanded, “[j]urors shall be admonished that they may not find a 

person a sexually violent predator based on prior offenses absent relevant 

evidence of a currently diagnosed mental disorder that makes the person a 

danger to the health and safety of others in that it is likely that he or she will 

engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(3).) 

According to the People, this jury admonishment requirement “reflects 

legislative awareness that a judge might approach an SVP case more 

objectively and dispassionately than a jury given the subject matter at 

issue—a sexually violent offense.”
30

contrary to the long line of authority holding that the right to a jury trial is 

‘fundamental to the American scheme of justice.’ (See, e.g., Ramos v. 

Louisiana (2020) __ U.S. __ [140 S.Ct. 1390, 1397].)”

However, while rejecting these arguments, we nonetheless conclude in 

light of defendant’s delay in raising his equal protection claim that remand is 

necessary to give the People a meaningful opportunity to demonstrate a valid

constitutional justification for the SVP’s differential legislative treatment. 

(See McKee I, supra, 47 Cal.4th at pp. 1208–1210; see also Magana, supra, 76 

Cal.App.5th at p. 324.) There may indeed be differences between individuals

facing commitment under the SVPA and individuals facing commitment 

under the MDO/NDI statutes that warrant categorical distinctions among

these groups with respect to these jury trial rights. (See Barrett, supra, 54 

Cal.4th at p. 1110 [“an equal protection violation does not occur merely

because different statutory procedures have been included in different civil

commitment schemes”].) Given the importance of this issue, we decline to 

decide it on an incomplete factual record. In the meantime, we conditionally

affirm the trial court’s order declaring defendant to be an SVP and

committing him to the State Department of State Hospitals for an

indeterminate term.

D. Any error would not be harmless.

Last, we reject the People’s claim that remand is not necessary because 

any failure of the trial court to advise defendant of his rights to a jury trial 

and to obtain a personal waiver of this right was harmless error.

The Magana court, relying on Blackburn (2015) 61 Cal.4th 1113, 1134–

1136, held that a trial court complying with a statutory jury trial waiver

requirement would commit reversible error unless the record affirmatively 

showed a valid waiver. (Magana, supra, 76 Cal.App.5th at p. 327; Blackburn, 
31

supra, at p. 1136 [“trial court’s failure to properly advise an MDO defendant 

of the right to a jury trial does not by itself warrant automatic reversal. 

Instead, a trial court’s acceptance of a defendant’s personal waiver without

an express advisement may be deemed harmless if the record affirmatively

shows, based on the totality of the circumstances, that the defendant’s waiver

was knowing and voluntary”].) Because the record there was silent on the 

issue, the Magana court reversed and remanded to the trial court to litigate 

the defendant’s equal protection claim. (Magana, at p. 327.)

The same circumstances exist here. The record reflects that, on 

February 7, 2018, the trial court asked whether either side wished to waive a 

jury trial, even though the SVPA did not require the court to make this 

inquiry. In response, defense counsel waived a jury trial on defendant’s 

behalf, and the court accepted it. At a subsequent pretrial conference on 

March 22, 2018, which defendant did not attend, defense counsel “confirm[ed] 

it is a court trial, not a jury trial,” before adding defendant was “wavering if 

he even wants to come to court at this point.”

Nothing in this record affirmatively demonstrates that defendant was 

fully advised of his rights to a jury trial or that he made a knowing and 

intelligent waiver of such right. To the contrary, he was not present when his 

counsel offered a waiver on his behalf. As such, following Blackburn and 

Magana, we decline to find harmless error on a silent record and, instead,

remand to the trial court to litigate defendant’s constitutional challenge.

DISPOSITION

The order declaring defendant to be an SVP and committing him to the 

State Department of State Hospitals for an indeterminate term is 

conditionally affirmed. The matter is remanded to the trial court to provide 

defendant an opportunity to raise his equal protection challenge to the
32

SVPA’s jury trial provisions. If, on remand, the trial court determines there 

is an equal protection violation, the court shall vacate the order declaring 

defendant to be an SVP and set the matter for a jury trial unless, after a full 

advisement by the court, he knowingly and intelligently waives his right to 

have a jury decide his case.

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Burns, J.

A163083/People v. William Joseph Cannon
33

A163083/People v. Cannon

Trial Court: Superior Court of the County of Mendocino

Trial Judge: Ann Moorman

Counsel: Jeremy Price and Rachel Belden, under appointment by 

the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters and 

Charles C. Ragland, Assistant Attorneys General, 

Arlene A. Sevidal and James H. Flaherty III, Deputy 

Attorneys General, for Plaintiff and Respondent.