Filed 11/18/20 P. v. Irvin CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT IRVIN,

Defendant and Appellant.

 B301745

 (Los Angeles County

 Super. Ct. No. ZM021280)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, Roger Ito, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal,

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney 

General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney 

General, and Allison H. Chung, Deputy Attorney General, for Plaintiff

and Respondent.
2

The day before a court trial commenced on a petition filed by the 

Los Angeles County District Attorney’s Office to determine whether

appellant Robert Irvin should serve an indeterminate term of 

commitment under the Sexually Violent Predator (SVP) Act (Welf. & 

Inst. Code, § 6600 et seq.),1 Irvin’s appointed defense counsel met with 

petitioner’s counsel and the trial judge in chambers for a trial status 

conference. During the off-the-record conference, as later confirmed in 

open court, defense counsel agreed to proceed with a court trial rather 

than a jury trial. Following trial, the court committed Irvin to an 

indeterminate term of commitment after it found beyond a reasonable 

doubt that Irvin was a sexually violent predator (§ 6600, subd. (a)(1)).

On appeal, Irvin challenges the constitutionality of section 6603, 

subdivision (f), which provides that if an SVP defendant or the 

petitioning attorney “does not demand a jury trial, the trial shall be 

before the court without a jury.” Irvin asserts that the statute violates

his federal and state due process “rights” to a judicial advisement and 

personal waiver of his right to a jury trial. He bases these rights on the 

reasoning set forth in People v. Blackburn (2015) 61 Cal.4th 1113

(Blackburn), People v. Tran (2015) 61 Cal.4th 1160 (Tran), and People v. 

McKee (2010) 47 Cal.4th 1172 (McKee), and the four-factor balancing 

test used for determining whether certain due process protections 

should be afforded to litigants in civil commitment proceedings. He also 

contends that section 6603 violates equal protection principles because 

1 Unspecified references to statutes are to the Welfare and Institutions 

Code.
3

the Mentally Disordered Offender (MDO) Act and the statutory scheme 

for extending involuntary commitment for persons who previously 

pleaded not guilty by reason of insanity (NGI), provide for similar civil 

commitment proceedings, and expressly provide for judicial advisement 

and personal waiver of the right to a jury trial.

The Attorney General disputes these contentions and asserts that 

Irvin forfeited his equal protection challenge for failing to raise it below. 

We agree with the Attorney General’s assertion, and conclude that 

Irvin has forfeited his equal protection challenge. To the extent Irvin 

asserts his trial counsel was ineffective for failing to raise that

challenge below, he has not demonstrated deficient performance or 

resulting prejudice (i.e. that he would have demanded a jury trial). 

With regard to Irvin’s due process challenge, we conclude that a 

judicial advisement and personal waiver of the right to a jury trial are 

not constitutionally mandated in SVP proceedings. We therefore affirm 

the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Petition and Pretrial Proceedings

On May 22, 2013, approximately four years before Irvin was 

scheduled to be released from prison after committing a lewd or 

lascivious act on a child under the age of 14 years (Pen. Code, § 288, 

subd. (a)), a petition was filed petition seeking to commit Irvin as a 

sexually violent predator. The petitioner alleged that Irvin had been 

convicted on two separate occasions of committing lewd and lascivious 

acts on a child under the age of 14; that Irvin has a diagnosed mental 
4

disorder; and that Irvin poses a danger to the health and safety of 

others.2 

With the assistance of appointed counsel, Irvin waived reading of 

the petition and statement of rights, and denied the allegations in the 

petition. On May 9, 2014, the court found probable cause to believe that 

Irvin was likely to engage in sexually violent predatory criminal 

behavior upon his release, and ordered him to remain in custody 

pending trial. 

According to a minute order dated September 25, 2019 (there is no 

transcript), the court held a trial status conference “in-chambers with 

the people and [Irvin’s] counsel present, off the record.” “Both sides

announce[d] ready and agree[d] to a court trial,” which the court set for 

the next day. 

The next day, September 26, 2019, in open court and before the 

petitioner called its first trial witness, the court addressed Irvin as 

follows: “Mr. Irvin previously—the matter had been sent to this court 

and we had an in chambers conference regarding the procedure with 

which the case is going to be conducted. I’m sure that your attorney’s 

already spoke[n] to you about that.” Irvin replied, “Yes.” The court 

then asked the petitioner to call its first witness. Prior to resuming 

2 A “‘[s]exually violent predator’ means a person who has been convicted 

of a sexually violent offense against one or more victims and who has a 

diagnosed mental disorder that makes the person a danger to the health and 

safety of others in that it is likely that he . . . will engage in sexually violent 

criminal behavior.” (§ 6600, subd. (a)(1).) A sexually violent offense includes 

a felony conviction under Penal Code section 288, subdivision (a). (§ 6600.1.)
5

trial the next day, Irvin personally waived his appearance for the 

remainder of trial. 

II. The Petitioner’s Case

In 1991, Irvin paid a six-year-old boy $1 to orally copulate his

penis for two minutes. Following a guilty plea, Irvin was sentenced to 

three years imprisonment for committing a lewd act upon a child (Pen. 

Code, § 288, subd. (a)). 

Within three months of being paroled in 1995, Irvin placed his 

hands inside the clothing and touched the genitals of a four-year-old girl 

and her six-year-old brother, and he exposed his erect penis and 

masturbated in front of the children. Irvin again pleaded guilty to 

committing a lewd act upon a child, and he admitted a five-year serious 

felony enhancement. He was sentenced to 21 years imprisonment. 

During an SVP evaluation with the Department of State Hospitals 

(DSH) in 2013, Irvin denied committing the 1991 and 1995 offenses. He 

admitted, however, that he was addicted to sex, and had molested a 

female child in 1989 when he was 19 years old. Following the 

interview, the DSH evaluator believed Irvin had sexual fantasies of 

children. 

Two SVP evaluators, Drs. Michael Musacco and Christopher

North (both psychologists) testified regarding Irvin’s diagnosed mental

disorder.3 Both evaluators concluded that Irvin suffered from a 

3 “‘Diagnosed mental disorder’ includes a congenital or acquired 

condition affecting the emotional or volitional capacity that predisposes the 
6

diagnosable mental disorder that predisposes Irvin to the commission of 

criminal sexual acts: pedophilic disorder, with sexual attraction to both 

males and females. Dr. Musacco scored Irvin on a Static-99R risk 

assessment as average to above average.

4 Despite the score, Dr. 

Musacco believed Irvin posed a substantial risk of reoffending because 

he had not participated in any treatment, he had denied the 

commitment offenses, and he could not be safely treated in the 

community. Dr. North also believed Irvin was likely to reoffend if 

released,5 and posed a substantial danger to the health and safety of 

others. 

III. Irvin’s Case

Deborah Cotterman, an art therapist at Coalinga State Hospital, 

began treating Irvin in 2017. She testified that Irvin had improved his 

behavior through coping skills, including walking, watching television, 

and crocheting. 

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).)

4 The Static–99R identifies and assigns “numerical weights to 

established facts about a particular offender, such as his or her age and 

history of sexual convictions, as bases for predicting the likelihood he or she 

will commit new sex offenses.” (People v. Shazier (2014) 60 Cal.4th 109, 119.)

5 Dr. North also interviewed Irvin, who stated that he used to think of 

himself as a pedophile. Irvin stated he did not participate in the Sex 

Offender Treatment Program during his incarceration because he did not 

think it would lead to his release, and he had outgrown his pedophilia.
7

Following his own interview with Irvin, defense evaluator Dr. 

Christopher Fisher concluded that Irvin’s pedophilic disorder was in the 

past despite the fact that the disorder was not in remission. Dr. Fischer 

scored Irvin in the average category of risk in a Static-99R risk 

assessment. In Dr. Fisher’s opinion, Irvin did not have serious 

difficulty controlling his sexual behavior that would make him likely to 

reoffend. 

IV. Court Finding and Commitment

Following trial, the court found beyond a reasonable doubt that

Irvin was a sexually violent predator within the meaning of the SVP 

Act. The court issued an order committing Irvin to the custody of the 

DSH for an indeterminate term. 

Irvin filed a timely notice of appeal. 

DISCUSSION

I. The SVP Act 

When the Legislature enacted the SVP Act in 1995, “it ‘“expressed 

concern over a select group of criminal offenders who are extremely 

dangerous as the result of mental impairment, and who are likely to 

continue committing acts of sexual violence even after they have been 

punished for such crimes. . . . The [SVP] Act provides treatment for 

mental disorders from which [these offenders] currently suffer and 

reduces the threat of harm otherwise posed to the public. No punitive 

purpose was intended.”’ (People v. Otto (2001) 26 Cal.4th 200, 205 

(Otto).) Civil commitment under the SVP Act ‘can only commence if, 
8

after a trial, either a judge or a unanimous jury finds beyond a 

reasonable doubt that the person is an SVP’ (Cooley v. Superior Court

(2002) 29 Cal.4th 228, 243 (Cooley))—that is, an individual who has 

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

and who has a diagnosable mental disorder that makes it likely that he 

or she will engage in sexually violent criminal conduct of a predatory 

nature if released. (Id. at p. 236; see § 6600, subd. (a)(1).)” (People v.

Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1008.)

The trial to determine whether a person should be civilly 

committed as a sexually violent predator “is the last stage of a complex 

administrative and judicial process.” (Cooley, supra, 29 Cal.4th at 

p. 244.) The administrative process includes an extensive screening,

referral, and examination to determine whether the person meets the

criteria as an SVP. (See § 6601, subds. (a)-(i).)

Once a petition has been filed with the superior court, the judge

must review the petition to determine if probable cause exists to believe

the person is likely to engage in sexually violent predatory criminal

behavior upon his release. (§ 6602, subd. (a).) A failure to find probable 

cause leads to dismissal of the petition, whereas a finding of probable 

cause requires a trial on the merits of the petition. (Ibid.)

In the event of a trial, an SVP defendant “is entitled to a trial by

jury, to the assistance of counsel, to the right to retain experts or

professional persons to perform an examination on the person’s behalf,

and to have access to all relevant medical and psychological records and

reports.” (§ 6603, subd. (a).) The attorney “petitioning for commitment”

also “has the right to demand that the trial be before a jury.” (§ 6603,
9

subd. (b).) “If the person subject to [the SVP Act] or the petitioning

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

without a jury.” (§ 6603, subd. (f).) The court or jury (by unanimous

verdict) must determine beyond a reasonable doubt whether the person 

is a sexually violent predator. (§§ 6603, subd. (f), 6604; see Cooley, 

supra, 29 Cal.4th at p. 236.) The remaining provisions of the SVP Act 

provide procedures for periodic review, treatment, and conditional or 

unconditional release in the event the individual no longer meets the 

criteria of a sexually violent predator. (§§ 6604.9–6609.3.)

I. An SVP Defendant Is Not Constitutionally Entitled to a Judicial 

Advisement and Personal Waiver of the Right to a Jury Trial

Irvin challenges the constitutionality of section 6603, which 

provides an SVP defendant with the right to a jury trial (subd. (a)), but 

does not require the trial court to advise or obtain from the SVP 

defendant a personal waiver of the right to a jury trial. Irvin does not 

contend that an SVP defendant possesses a federal or state due process 

right to a jury trial—the right is purely statutory. Instead, he contends 

that an SVP defendant possesses federal or state due process “rights” to 

(1) a judicial advisement of the statutory right to a jury trial, and (2) a 

personal waiver of that right. He asserts a judicial advisement and 

waiver are required by the reasoning of the California Supreme Court 

decisions in Blackburn, supra, 61 Cal.4th 1113, Tran, supra, 61 Cal.4th 

1160, and McKee, supra, 47 Cal.4th 1172. He alternatively asserts 

entitlement to these rights based on the four-factor test used to 
10

determine what due process procedures are due in civil commitment 

proceedings. We disagree.

A. Blackburn, Tran, and McKee Do Not Compel A Judicial

Advisement and Personal Waiver of the Statutory Right to a 

Jury Trial in SVP Proceedings

As has been long recognized, a judicial advisement of a right, and 

a personal waiver of that right, are procedural safeguards designed to 

ensure that the person understands the right and can make an 

intelligent decision whether to waive it. These safeguards are not 

themselves inherent aspects of the right involved. (See People v. 

Sivongxxay (2017) 3 Cal.5th 151, 173, fn. 8 [waiver colloquy is a “‘a 

procedural device; it is not a constitutional end or a constitutional 

“right”’”]; Blackburn, supra, 61 Cal.4th at p. 1125 [“[t]he purpose of an

advisement is to inform the defendant of a particular right so that he or

she can make an informed choice about whether to waive that right”].)

Whether a personal waiver of the right to a jury trial is compelled 

as a matter of constitutional procedure depends on whether the right is 

constitutional or statutory in nature. “The requirement of an express 

waiver applies to the constitutional right to a jury trial, but not to jury 

trial rights that are established only by statute.” (People v. French

(2008) 43 Cal.4th 36, 46.) If an express waiver of the right to a jury 

trial is not required, a judicial advisement of that right is also not 

required. (See Blackburn, supra, 61 Cal.4th at p. 1125, quoting People

v. Barrett (2012) 54 Cal.4th 1081, 1105 [“‘absent any requirement of a
11

personal waiver, the person facing commitment has no need for an

express court advisement of the right to request a jury trial’”].)

The right to a jury trial in an SVP proceeding is a statutory right,

not a constitutional right. (People v. Rowell (2005) 133 Cal.App.4th 447, 

452 (Rowell)) In particular, the constitutional right to a jury trial does

not apply to proceedings under the SVP Act, because those proceedings

are special proceedings that are civil in nature and unknown to the

common law. (Id. at pp. 451-452; accord, Corder v. Corder (2007) 41 

Cal.4th 644, 656, fn. 7 [constitutional right to jury trial does not apply 

to actions in equity or to special proceedings, though the Legislature 

may provide for a jury trial in these types of actions]; People v. Montoya

(2001) 86 Cal.App.4th 825, 829, disapproved on another ground in 

Blackburn, supra, 61 Cal.4th 1113.) Thus, because an SVP defendant’s 

right to a jury trial is based only on statute (§ 6603, subd. (a)), the

defendant is not constitutionally entitled to the safeguards of a judicial

advisement and a personal waiver. (Rowell, supra, 133 Cal.App.4th at 

p. 452; cf. Blackburn, supra, 61 Cal.4th at p. 1147 (dis. opn. of CantilSakauye, C.J.) [“advisement and waiver errors are simply procedural

errors of a statutory nature”].) 

The decisions in Blackburn, Tran, and McKee, on which Irvin 

relies, do not compel a different result. We begin with the companion 

cases of Blackburn and Tran. 

Both Blackburn and Tran involved civil commitment proceedings

under the Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 

et seq.) and proceedings for extending the involuntary commitment of a 
12

person originally committed after pleading not guilty by reason of 

insanity (NGI) (id., § 1026 et seq.). In both decisions, the Court focused 

on the “statutory scheme[s]” of the MDO Act and NGI statutes, which 

(unlike the SVP Act) expressly require “the trial court to ‘advise the 

person of his or her right to be represented by an attorney and of the 

right to a jury trial’ and to hold a jury trial ‘unless waived by both the 

person and the district attorney.’” (Blackburn, supra, 61 Cal.4th at 

p. 1116, quoting Pen. Code, § 2972, subds. (a)(1) & (a)(2); see Tran, 

supra, 61 Cal.4th at p. 1163 [“we address the meaning of nearly

identical language in the statutory scheme for extending the

involuntary commitment” of NGI defendants].)6 Recognizing that some

MDO and NGI defendants may lack the capacity to make a knowing

and voluntary waiver, the Court crafted an exception to the statutory

requirements of an advisement and personal waiver: courts must

judicially advise and obtain a personal waiver from MDO defendants

unless “the trial court finds substantial evidence that the defendant

lacks the capacity to make a knowing and voluntary waiver.”

(Blackburn, supra, 61 Cal.4th at pp. 1116, 1130; accord, Tran, supra, 61

Cal.4th at pp. 1163, 1167.)7

6 “The NGI statute provides that in a commitment extension proceeding,

‘the court shall advise the person named in the petition of the right to be

represented by an attorney and of the right to a jury trial,’ . . . and ‘[t]he trial

shall be by jury unless waived by both the person and the prosecuting

attorney.’” (Tran, supra, 61 Cal.4th at p. 1163, quoting Pen. Code, § 1026.5, 

subds. (b)(3) & (b)(4).) 

7 The Court based the exception on the approach taken in People v.

Masterson (1994) 8 Cal.4th 965 (Masterson), which considered who may
13

Thus, the requirement of an advisement and waiver of the right to 

a jury trial (absent substantial evidence of incapacity) established in 

both Blackburn and Tran derives not from constitutional principles, but 

from the express language of the MDO and NGI statutes, which 

requires an advisement and personal waiver. (See, e.g. Blackburn, 

supra, 61 Cal.4th at pp. 1117, 1121, 1124; Tran, supra, 61 Cal.4th at 

pp. 1163, 1165, 1166.) By contrast, the express language of the SVP Act 

does not require a judicial advisement or personal waiver of the 

statutory right to a jury trial in SVP proceedings. “If the person subject

to [the SVP Act] or the petitioning attorney does not demand a jury

trial, the trial shall be before the court without a jury” (§ 6603, subd. (f),

italics added). If the Legislature had intended to “‘judicially ensure 

that “the person” knows that he or she has the right to a jury trial’” 

(Blackburn, supra, 61 Cal.4th at p. 1124), it would have included

statutory provisions similar to the MDO Act and NGI statutes.8 

waive the right to a jury trial in a mental competency hearing. In Masterson,

the Court found the statutes governing mental competency hearings (Pen.

Code, §§ 1368, 1369) provided a “statutory, not constitutional” right to a jury

trial, and did not require a judicial advisement or address the issue of waiver. 

(See Masterson, supra, at p. 969.) In light of that statutory right and the

nature of mental competency hearings (i.e. to determine a defendant’s

present mental competence), the Masterson Court held that defense counsel

may waive the right to a jury trial even over the defendant’s objection or

wishes to proceed by jury trial. (Id. at pp. 971-972, 974.) 

8 Similar express statutory provisions requiring judicial advisement and 

personal waiver of the right to a jury trial appear in conservatorship 

proceedings under the Lanterman-Petris-Short Act. (See Conservatorship of 

Heather W. (2016) 245 Cal.App.4th 378, 383-384 [“Probate Code section 1828,

subdivision (a)(6) provides: ‘. . . the court shall inform the proposed

conservatee of all of the following . . . . The proposed conservatee has the 
14

Like Blackburn and Tran, the third case on which Irvin relies, 

McKee, is inapposite. In McKee, an SVP defendant raised several 

constitutional challenges to provisions within the SVP Act, none of 

which is at issue in this case. (See McKee, supra, 47 Cal.4th at 

pp. 1188-1192.) Irvin relies on the court’s mention of a possible due 

process issue in light of section 6608 not providing an SVP defendant

with access to experts whenever he or she petitions for release without 

approval from the DSH. (Id at p. 1192.)9 However, the Court did not 

reach the due process challenge to section 6608, and instead 

“reasonably inferred” from another provision in the SVP Act (former

§ 6605, subd. (a)) that section 6608 provided for the appointment of

experts. (McKee, supra, at p. 1192 [“Although section 6605, subdivision

(a) does not explicitly provide for the appointment of the expert in

conjunction with a section 6608 petition, such appointment may be

reasonably inferred”].)

Irvin fails to explain how the reasoning of McKee applies here, and

we are unable to find one. There is no gap in section 6603, subdivisions

(a), (b), and (f) to be filled by some other provision of the SVP Act (and

right to oppose the proceeding, to have the matter of the establishment of the

conservatorship tried by jury . . . .’”].)

9 The issue arose out of inconsistent provisions for the appointment of 

experts. The SVP Act did not provide for the appointment of experts in

connection with a petition for release without authorization from the DSH

(§ 6608); but did provide for such appointment if the petition was made with

authorization from the DSH (former § 6605, subd. (d)). (See McKee, supra, at

pp. 1192-1193.) 
15

Irvin has identified no such provision even if there were a gap). The

language of the SVP act is clear: an SVP defendant “is entitled to a

trial by jury” (§ 6603, subd. (a)), and the petitioning attorney “has the

right to demand that the trial be before a jury” (§ 6603, subd. (b)), as

does he, but “[i]f the person subject to [the SVP Act] or the petitioning

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

without a jury” (§ 6603, subd. (f)).

B. Due Process Does Not Require a Judicial Advisement of the

Right to a Jury Trial, and a Personal Waiver in SVP Cases

Irvin asserts that the judicial advisement preceding a personal 

waiver of the right to a jury trial is required under the four-factor 

balancing test in Moore v. Superior Court (2010) 50 Cal.4th 802 (Moore)

and Otto, supra, 26 Cal.4th 200, for determining what process is due in 

civil commitment proceedings. We disagree.

Like other individuals subject to involuntary civil commitment, 

SVP defendants are “entitled to certain due process protections.” 

(Moore, supra, 50 Cal.4th at p. 818.) To determine what those

protections are, courts have weighed the following four factors: “(1) the

private interest that will be affected by the official action; (2) the risk of

an erroneous deprivation of such interest through the procedures used,

and the probable value, if any, of additional or substitute procedural

safeguards; (3) the government’s interest, including the function

involved and the fiscal and administrative burdens that the additional

or substitute procedural requirement would entail; and (4) the dignitary

interest in informing individuals of the nature, grounds, and
16

consequences of the action and in enabling them to present their side of

the story before a responsible government official.” (Moore, supra, 50

Cal.4th at p. 819, citing Allen, supra, 44 Cal.4th at pp. 862–863, Otto,

supra, 26 Cal.4th at p. 210.)

Weighing the four factors above, we conclude that SVP defendants 

are not entitled to the additional safeguards of a judicial advisement 

and personal waiver of the right to a jury trial. Only the first factor 

weighs in favor of adding these procedures, as the “‘private interests at 

stake’” involve an SVP defendant’s “liberty, reputation, and freedom 

from unwanted treatment.” (Moore, supra, 50 Cal.4th at pp. 821-822.) 

The remaining factors do not weigh in favor of adding the requested

procedures. 

With regard to the second factor, Irvin has not suggested how the

current procedures used in SVP trials—including the burden of proof

beyond a reasonable doubt before a jury or the judge; an SVP

defendant’s entitlement to the effective assistance of counsel; and the

ability to present relevant and admissible evidence (§§ 6603 subds. (a),

(e), (f), 6604)—pose a risk of an erroneous deprivation of liberty,

reputation, or unwanted treatment. As discussed, a judicial advisement

and personal waiver are safeguards to ensure that defendants are able 

to fully understand their right to a jury trial so that they can make an 

informed choice about whether to waive that right. Irvin has provided 

no authority, and we are aware of none, to suggest that factfinding by a 

judge is somehow less reliable and more prone to injustice than

factfinding by a jury. (See e.g., People v. Deere (1985) 41 Cal.3d 353, 

360 (Deere) [“[i]n light of the heinous nature of defendant’s crimes, 
17

counsel may reasonably have believed that an experienced trial judge 

would be more capable than a jury of viewing the facts dispassionately 

and possibly exercising mercy on defendant’s behalf”], disapproved on

another ground in People v. Bloom (1989) 48 Cal.3d 1194 (Bloom).)10 

The third factor, which focuses on the government’s interest in the

fiscal and administrative burdens the additional procedures would

entail, weighs against requiring the requested procedures. (See

Blackburn, supra, 61 Cal.4th at p. 1129 [“we are mindful of ‘the 

“‘administrative burdens’” and “practical difficulties” of demanding new 

procedures’”].) SVP proceedings, like other civil commitment 

proceedings, may involve defendants who lack the capacity to make a 

knowing and voluntary waiver. (See Moore, supra, 50 Cal.4th at p. 825

[“we can reasonably assume that significant potential overlap exists 

between those mental disorders that qualify someone for commitment 

as an SVP, on the one hand, and those that produce an inability to 

comprehend the proceedings or assist in one’s defense on the other”].)

10 See also Raymond LaMagna, (Re)Constitutionalizing Confrontation: 

Reexamining Unavailability and the Value of Live Testimony, 79 S. Cal. L. 

Rev. 1499, 1507 (2006) [“there is no evidence to suggest that bench trials

would be less effective at generating accurate outcomes than jury trials”], and

Keith N. Hylton & Vikramaditya Khanna, A Public Choice Theory of

Criminal Procedure, 15 Sup. Ct. Econ. Rev. 61, 92-93, fn. 110 (2007) [“it is a 

little difficult to believe that jury trials are likely to be more accurate (i.e., 

less error prone) than bench trials. One doubts there is any empirical 

evidence to support this result and our legal system also seems to suggest 

that jury trials may be more prone to errors than bench trials. . . . Much of 

the law of evidence seems to try to protect the jury from misperceptions and 

bias, whereas we seem less concerned with these matters for bench trials”].)
18

As discussed above, to address this issue in the context of the 

statutorily required advisement and waiver of the right to a jury trial in 

MDO and NGI proceedings, Blackburn and Tran require an advisement 

and personal waiver, unless there is substantial evidence that the 

defendant lacks the capacity to make a knowing and voluntary waiver. 

(Blackburn, supra, 61 Cal.4th at p. 1116.) By analogy to Blackburn and

Tran, were an advisement and personal waiver of the right to a jury 

trial required in SVP proceedings, then the additional procedure of 

determining the defendant’s capacity to waive the right might be 

required in some cases. Given that the SVP Act (unlike the MDO and 

NGI statutes) does not require an advisement and personal waiver of 

the right to a jury trial, the requirement of an additional analysis of the 

defendant’s competence to waive, and a proceeding at which that 

evidence is considered prior to any advisement and waiver, would 

impose a fiscal and administrative burden not tethered to the statutory 

right involved. (Cf. Indiana v. Edwards (2008) 554 U.S. 164, 175 

[“[m]ental illness itself is not a unitary concept. It varies in degree. It 

can vary over time. It interferes with an individual’s functioning at 

different times in different ways”]; People v. Ford (2020) __ Cal.App.5th 

__ [2020 WL 6255338, p. *3] [pretrial hearing to determine NGI 

defendant’s competence “provides an opportunity for meaningful 

interaction between the defendant and the court on the topic of the 

defendant’s right to a jury”].)11 

11 Irvin asserts that the government’s interests could have been readily 

ameliorated in this case, because he “personally waived his right to be 

present and he could have been advised of his jury trial right at the same 
19

The final factor focuses on “informing [SVP defendants] of the 

nature, grounds, and consequences of the action,” and “enabling them to 

present their side of the story.” (People v. Allen (2008) 44 Cal.4th 843, 

862.) These concerns do not support imposition of a judicial advisement 

and personal waiver. There is no reason to believe that counsel for SVP 

defendants do not adequately inform them of the right to a jury trial, as 

well as the nature, grounds, and consequences of an SVP proceeding.12 

(See Blackburn, supra, 61 Cal.4th at p. 1124; Conservatorship of Mary 

K. (1991) 234 Cal.App.3d 265, 272.) Moreover, an advisement and 

waiver of the right to a jury trial have no bearing on a defendant’s 

ability to personally present his or her own theories of defense or

testimony at trial. (Compare Allen, supra, 44 Cal.4th at p. 869 [denial

of right to testify over objection of trial counsel “would impair the

defendant’s ability to be heard” by the trier of fact]; Otto, supra, 26

Cal.4th at pp. 214-215 [admission of multiple hearsay statements did

not preclude SVP defendant from presenting his own witnesses and

cross-examining any prosecution witness].) 

Considering the relevant factors, we conclude SVP defendants are

not entitled, as a matter of due process, to a judicial advisement and

personal waiver of their right to a jury trial.

time.” But he misses the point. The relevant due process analysis does not 

hinge on the peculiar facts of his case, but on the application of the relevant 

due process principles in SVP proceedings generally.

12 Irvin’s response to the trial court’s inquiry in this case confirmed that 

he had spoken with counsel about how trial would proceed. 
20

II. Irvin Has Forfeited His Equal Protection Challenge

Irvin contends that section 6603 violates equal protection

principles, because SVP defendants are not entitled to judicial

advisements preceding a personal waiver of the right to a jury trial,

whereas persons similarly situated to SVP defendants (i.e. MDO and

NGI defendants) are entitled to those safeguards.

The Attorney General contends that Irvin has forfeited this 

contention for failure to raise an equal protection violation or 

requesting a judicial advisement and personal waiver of Irvin’s right to 

a jury trial. We agree. (People v. Alexander (2010) 49 Cal.4th 846, 880, 

fn. 14; People v. Rogers (2006) 39 Cal.4th 826, 854; People v. Burgener

(2003) 29 Cal.4th 833, 861; People v. Carpenter (1997) 15 Cal.4th 312, 

362, overruled on another ground in People v. Diaz (2015) 60 Cal.4th 

1176.)

Anticipating this result, Irvin argues we should address the 

merits because the contention is “based on a newly announced 

constitutional principle that could not reasonably have been anticipated 

at the time of trial”; the claimed error affects his fundamental 

constitutional rights; and his trial counsel rendered constitutionally 

ineffective assistance of counsel. 

Our discussion above largely dispenses with Irvin’s first two 

arguments. In any event, we decline to exercise our discretion to 

address the equal protection issue because it does not hinge on a pure 

question of law based on undisputed facts. (See In re Spencer S. (2009) 

176 Cal.App.4th 1315, 1323; In re York (1995) 9 Cal.4th 1133, 1152.) 
21

The petitioner was not afforded an opportunity below to set forth 

reasons and possibly produce evidence justifying any disparate 

treatment in MDO or NGI proceedings on the one hand, and SVP 

proceedings on the other. 

With regard to Irvin’s final argument—that he received ineffective 

assistance of counsel—he has not demonstrated that his trial counsel 

rendered ineffective assistance. (See § 6603, subd. (a) [“A person 

subject to this article is entitled to . . . the assistance of counsel”]; In re 

Wright (2005) 128 Cal.App.4th 663, 674 [analyzing statutory right to 

effective assistance of counsel under Strickland].) “When challenging a 

[commitment] on grounds of ineffective assistance, the defendant must 

demonstrate counsel’s inadequacy. To satisfy this burden, the 

defendant must first show counsel’s performance was deficient, in that 

it fell below an objective standard of reasonableness under prevailing 

professional norms. Second, the defendant must show resulting 

prejudice, i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been different.” 

(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) 

When examining an ineffective assistance claim, we defer to 

counsel’s “reasonable tactical decisions, and there is a presumption 

counsel acted within the wide range of reasonable professional 

assistance. . . . On direct appeal, a [commitment] will be reversed for 

ineffective assistance only if (1) the record affirmatively discloses 

counsel had no rational tactical purpose for the challenged act or 

omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other 
22

claims of ineffective assistance are more appropriately resolved in a 

habeas corpus proceeding.” (Mai, supra, 57 Cal.4th at p. 1009.)

Irvin has failed to show that his trial counsel engaged in deficient 

performance by failing to request—whether on equal protection grounds 

or more generally—a judicial advisement and personal waiver of Irvin’s 

right to a jury trial. The record suggests a reasonable tactical decision: 

given the nature of his crimes and the issue whether he remained a 

danger, counsel might well have believed that the judge would be better 

able to dispassionately evaluate the evidence and apply the law. (See 

Deere, supra, 41 Cal.3d at p. 360, disapproved on another ground in 

Bloom, supra, 48 Cal.3d 1194.)

Irvin has also failed to establish a reasonable probability that, but 

for counsel’s failure to request a judicial advisement and personal 

waiver of Irvin’s right to a jury trial, Irvin would have demanded a jury 

trial. There is nothing to suggest that Irvin would not have waived his 

right to a jury trial, had he been advised of the right and asked for a 

waiver by the court. 

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23

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.