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 a ppeal s 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 th is matter sh ould 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, d efendant 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 ter m 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, d efendant admitted that he was out that day “ ‘hunting females to

sexually assault them.’ ” He also ad mitted t hat 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 , 20 16 , 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 findi ng of probable cause.

2 This stipulation was subsequently admitted into evidence in defendant’s SVP A 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 qual ified as a n 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 O ctober 5, 2020.

A. Investigator Kevin Bailey.

Investigator Kevin Bailey , who interviewed 3 defendant after his

October 2 , 2010 arrest, testified for the prosecution. Defendant told Bail e y 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

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

coworker . This coworker then forced defendant to leave after defendant

made sexually inappropriat e 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 scare d the young girl, and her mother told him

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

tried unsuccessfully to enter through a door. Defendant acknowledged to

Bail e y that had the door been unlocked, he “might’ve [pulled her ou t of the

house and] raped her

. . . .” Instead, t he 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 d efendant told Bail e y , 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 victi m. “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 hoped5

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 g etting 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 beg an walking around. He
“happened to see this girl” who appeared to be about 16 years old. D efendant
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 q uickly 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 lik e 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

Th ree expert psychologists , each of whom evaluated defendant several

times, also testified at trial

. D rs. Karlsson and Miculian , appearing for the

prosecution , opined that defendant met the qualifications for a n 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 defen dant no longer qualified

as an SVP and s hould be releas e d 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. According ly , 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 a n SVP ; (2) the court erroneously admitted exper t testimony

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

protection was violated by the court ’s fail ure 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 a n SVP beyond a reasonable doubt.
The SVPA provides for the indefinite civil commitment o f 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 a n SVP. 5 (§ 6600 et seq. ; People

5 T he 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 conc erned with the determination that defendant is an SVP

, made by the trial judge acting as7

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, 11 52 .)

A n offender qualifies as a n SVP for purposes of th e 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

sexual ly 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 de gree constituting the person a
menace to the health and safety of others.” (§ 6600, subd. (c).)

Thus, under th e SVP A

, the prosecutor must prove beyond a reasonable

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

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

a danger to the health and safety of others in that h e 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 o the rs’ safety. ( People v. Superior Court ( George )

(2008) 164 Cal.App.4th 183, 194

– 195 ; CALCRIM No. 3454.) Here, d efendant

contends the prosecut ion did not meet i ts 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.

W here 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. ( Peop le 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 fa cts 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 th e 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 r easonably

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, 9 33.)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 qualifi cations 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

remain ed in custody to complete his sex offender treatment program

. While

defendant h a d been actively engaged in this program, he had not yet
completed it

. In reaching these opinion s , 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,

de fendant fell within the “routine group of sex offenders

. ” However, Dr.

Karlsson i de ntified defendant as an “outlier” in that neither the Stati c

- 99 n or

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 wa s , 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 porn ography at Coalinga and his preference for

porn ography depicting sexually naïve young women ages 18 to 20, wh ich

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 D r. Karlsson that he

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

defendant acknowledged in 2017 that porn ography had been a trigger for

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

. In addition, defend ant 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 e ntire [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 traum atic brain injury, one
aspect of which “could be an inability to control one ’ s sexual impulses.”

Similar ly to Dr. Karlsson, Dr. Miculian opined defendant was likely to

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

increased th e likelihood of his reoffend ing : (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

a ny long

- term intimate relationship and his poor problem

- solving ability due

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

2010

. . . , still he’s a serious well

- founded risk given the nature of his

disorder.” Similar ly 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 c ustody 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 foren s ic neuropsychologist, testified for the defense and

disagree d with many of the opin ions and metho d s 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, w as 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 defe ndant 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 include d 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 high er rate of recidivism

based on his injury

. According to Dr. Dempsey, his opinion failed to account

for the fact defendant’s brain had healed signi ficantly 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 l ife 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 t his 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, a n 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 F or purposes of

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

added), as used in section 6601, subdivision (d),

. . . requires a determination

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

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

— that

is, a serious and well

- founded risk

— of reoffending in this way if free. ”

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

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

or replaced after the commitment petition is filed in order “to obtain up

- to

date evaluations, in light of the fact that commitment under the SVPA is based on a ‘ current ’ mental disorder.” ’ [Citation.]” ( In re Butler (2020) 55 Cal.App.5th 614, 628.) “After commitment, an SVP is evaluated every year to consider ‘ whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alte rnative, 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 actu arial instruments, including the Static

- 99

, SRA

- FV and Stable

2007

. T he two prosec ution experts , Drs. Karlsson and Miculian, further

agreed defendant remained likely to reoffend if released before completing his

treatment program. The y found it particularly troublesome that defendant

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

hours at a time and that he preferr ed the “ ‘ school

- girl type

, ’ ” meaning

sexually inexperienced young women

. D efendant ’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, constitute s substantial evidence that defendant

currently present s a serious and well

- founded risk of reoffending. ( Ghilotti

,

sup ra , 27 Cal.4th at p. 916 .)

In so conclu ding , 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 expert s’ 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 ]”].) R eading the relevant testimony in a light favorable to

the trial court’s judgment as the law requires ( i bi d .)

, the re is no cause to

favor Dr. Dempsey’s opinion over theirs

.15

We also acknowledge d efendant ’s point that neither prosecution expert

wa s an expert in the field of neuropsychology , as was Dr. Dempsey

. Based on

this fact, d efendant argues the prosecution failed to offer admissible evidence

that he was currently neurocognitively impaired

, leaving undisputed Dr.

Dempsey ’s testimony that he wa s not currently neurocognitively impaired

. This argument confuses our legal standard. The SVPA require d proof that

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

There is no dispute that he did. However, t he 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 di stinctions 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. ( Ghilot ti, 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 argu ment 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

recor d contains substantial evidence support ing the court’s finding that16

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 an d Dr. Miculian opined defendant needed to complete the third

and fourth modules of his treatment program in order to lear n necessary tools for dealing with his “triggers” once he leaves the institutional setting.

Without do ing so, defendant’s impulsivity remained a concern.

Finally, the re was evidence defendant had

, in the past

, declined to

participate in certain aspects o f his treatmen t, once because he deemed i t

un necessary 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.)

D efendant interprets th e 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 n eurological17

assessment that “could constitute substantial evidence that custodial

treatment was necessary.”

Defendant again misconstrues our standard. As st ated, we draw all
reasonable inferences in favor of the court’s judgment. ( People v. Mercer,

supra , 70 Cal.App.4th at pp. 466

– 467 .) V iewed 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 present s “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, su pra , 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 h is ongoing pornography us e 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 evaluat ed [de fendant].” 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 that18

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

Cal.4th at pp. 686, 670 ; see Evid. Code, § 801, subd. (b) .) A n 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 arb itrary, capricious, or patently absurd manner that resulted in a

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

326.) T rial 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 impairm ents,” a consideration Dr.

Karlsson factored into his evaluation. Then, on cross

- examination, Dr.

Karlsson confi rm ed that he relied on Dr. Dinishak’s neuropsychological

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

[defendant’s] im pairments and [ f ound] 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 o f

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 consisten t 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 wi tness 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

fr om 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 th e s e statutory rules in reviewing Dr.
Dinishak’s test findings, alo ng 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 , t he record reflects that the trial court excluded and struck

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

the ground s that it was a case

- specific fact. This ruling reflects that the court20

was well aware of the Sanchez rule. And

, even aside from this ruling, the law

requires that w e presume the trial court prop erly 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 indicat ing the trial court violated this rule

. III. E qual P rotection C hallenge

. Last, defendant contends his constitutional right to equal protection

w as 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

m entally d isordered o ffender (MD O ) (Pen. Code, § 2960 et seq. ) and those

who plead n ot g uilty by r eason of i ns anity (NGI) (Pen. Code, § 1026.5)

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

the SVP A d oes not require the personal wa iver of a jury trial

.

“ D ecisions 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).) Howe ver, “[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 the21

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 ) [“t he 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 s tatute is entitled to a jury trial unless he or she,

having been advise d 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 t he 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.) T he

question raised is whether th is legislative distinction violat es defendant ’s

equal protectio n rights

. A. No Forfeiture

.
W e first address the People’s threshold argument that defendant

forfeited his equal protection challenge by failing to bring it be low

. Several

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

W hile 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 t he 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 i t

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 ass erted 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 t hat 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 w anted 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

bee n 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 r ight. Under these unusual circumstances, we

decline to find forfeiture

. . . . ” ( Washington, supra , 72 Cal.App.5th at pp.

473

– 474 .)23

Similar ly to the Washington court, we presume defen se counsel

reasonably believed defendant wished to waive his right to a jury trial and, as
such, reasonably believe d it was un necessary to demand that the trial court

advise him of his jury trial rights before rais ing an equal protection claim

. ( Conservator ship of John L . (2010) 48 Cal.4th 131, 156

– 157 [“i n 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 o f 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

purpose s 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.

T he People concede SVP’s are similarly situated to MDO’s and NGI’s

for purposes of th e jury trial law s in qu estion

. ( McKee I, supra

, 47 Cal.4th

1172, 1203 [“MDO’s and SVP ’ s are similarly situated for our present24

purposes”]; Magana, supra , 76 Cal.App.5th at p. 322.) A ccordingly, 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, d ecisions 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 c ontext 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 d isparate

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 , 7425

Cal.App.4th at pp. 1155

– 1156 .) As one court recently noted, r ational 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 “ e mpirically 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 prov e 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

ch allenges to civil commitment statutes governing who had the burden of

proof when the committe d individual s eeks release , and have found strict

scrutiny appropriate . (E.g., McKee II, supra , 207 C a l.App.4th at p. 13 48

[applying strict scrutiny review to rej ect defendant’s equal protection

c hallenge to the SVPA provision plac ing the burden on the committed person

to prove he or she should be released, whe re 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 ].) O n the other hand, courts have considered equal protection26

challenges to civil commitment statutes relat ing, 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 [ “ A lthough 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 day s 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 wai vers 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 from27

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 p p . 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 pr ocedures 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

program s ”].) 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

. ” ( M cKee I, supra , 47 Ca l.4th at p. 1207.) The court then remanded the cas e 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. 1 208

– 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 sta tutory commitment period and burden of proof. ( McKee I , at pp. 1208

– 1209.) T he McKee I court did not expressly hold that the strict scrutiny standard should apply on remand. O ne 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 ri ghts 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 alte rs 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 re turn to the record to determi ne whether i t

contains a constitutional justifi cation 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 cl aim below , the People were unaware of the need to make

this showing in the a p p ropr iate venue

. Nonetheless, the People identify two

possible rationales in their respondent’s brief for this le gislative 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, warrant ing weaker jury trial29

right s ; 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 i s 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.)

Moreov er , 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 diag no sed 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 requirem ent “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 reject ing these arguments, we nonetheless conclude in

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

necessary to give the People a meaningful opportunity to demonstrate a v alid

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. ) T here may indeed be differences between individuals

facing commitment under the SVPA and individuals facing commitment

under the MDO / NDI statutes that warrant categorical distinction s among

the se groups with respect to the se jury trial right s

. (See Barrett, supra , 54

Cal.4th at p. 1110 [“a n 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

decid e it on an incomplete factual record. In the meantime, w e 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, re lying on Blackbu rn (2015) 61 Cal.4th 1113, 113 4

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

requirement would commit reversible error unless the record affirmatively

show ed 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 ad visement 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 remand ed 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, d efense counsel waived a jury trial on defendant’s

behalf, and the court accepted i t. A t a subsequent pretrial conference on

Marc h 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.”

N othing in th is 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 litigat e defendant’s constitutional challenge

. DISPOSITION

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

State Department of State Hospital s 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 the32

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 knowing ly and intelligent ly waive s hi s right to
have a jury decide his case

.

_________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Burns, J.

A163083/ People v. William Joseph Cannon33

A1 6 3083 / 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.