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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

R OBERT 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

G eneral

, 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 f or 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 co mmitment 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 a n SVP defendant or the

petitio ning attorney “ d oes not demand a jury trial, the trial shall be

before the court without a jury

. ” Irvin asserts that the statute violate s

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

personal waiver of his right to a jury trial. He bases these right s 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 judi cial 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 aff irm

the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Petition and Pre t rial Proceedings

On May 22, 2013, approximately f our 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 mental4

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 denie d 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 side s

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

the next day.

The next day, September 2 6

, 2019, in open court and b efore 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 enga ge 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 t he 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 genita ls of a four

- year

- old girl

and her six

- year

- old brother , and he expos ed his erect penis and

masturbat ed 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 a n SVP evaluation with the Department of State Hospitals

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

. He

admitted , however, that h e 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 psy chologists) testified regarding Irvin’s diagnosed mental

disorder. 3 Both evaluators concluded that Irvin suffered from a

3 “‘Diagnosed mental disorder’ i ncludes a congenital or acquired

cond ition affecting the emotional or volitional capacity that predisposes the6

diagnosable mental disorder that predisposes Irvin to the commission of

criminal sexual acts: pedophilic disorder

, with s exual attract ion 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 I rvin 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 , a n art therapist at Coalinga State Hospital,

began treat ing 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 wa s in the

pas t 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 behavio r 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 hav e 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 jud ge 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 p rocess 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 t he 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).) “ 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).) The court or jury (by una nimous

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 Defend ant Is Not Constitutional ly Entitle d 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

ri ght to a jury tria l

— the right is purely statutory . Instead , he contends

that an SVP defendant possess es federal or state due process “ right s ” 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 to10

determine what d ue 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 understand s 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. 11 25 [ “ [t] he purpose of an

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

she can mak e 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 no t 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 [ “‘ a bsent any requirement of a11

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, t he 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. ( I

d . 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 ; c f. Blackburn

, supra , 61 Cal.4th at p. 1147 (dis. opn. of Cantil

Sakauye, 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 proceeding s

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

et seq.) and proceedings f or extending the involuntary commitment of a12

person originally committed after pleading not guilty by reason of

insanity (NGI) ( id. , § 1026 et seq.). In both decisions, t he 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 b y 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 defendant s ].) 6 Recognizing that some

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

and voluntary waiver, t he 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 “T he 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 waiv ed 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 may13

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

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

b oth 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 p p. 1117, 1121, 1124 ; Tran

, supra , 61 Cal.4th at

p p

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

does not require a judicial advisement or personal waiver of the

statutory right to a jury trial in SVP proceedings

. “ 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)

,

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 include d

statutory provision s 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” righ t 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 the14

Like Blackburn and Tran, t he 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 petition s for release without

approval from the DSH . ( Id at p. 1192.) 9 However, the C ourt 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 660 5, 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 pe tition 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 i f ther e 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 C ases

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 weigh ed 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 procedu ral

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 n ature, grounds, and16

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 o f adding these procedures, as the “ ‘ private interests at

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

from unwanted treat ment.” ( Moore

, supra , 50 Cal.4th at p p. 82 1

- 82 2 .)

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 pro o f

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

defendant’s entitlement to t he 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

[ “ w e 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

comp rehend 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 outc omes 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

defe ndant lacks the capacity to make a knowing and voluntary waiver

.

( Blackburn

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

Tran, w ere 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 a nd

NG I 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 advisemen t and waiver, would

impose a fiscal and administrative burden not tethered to the statutory

right involved. ( Cf. I

ndiana 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

__ [202 0 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 same19

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 the m 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 a dvisement 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 defendant s 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 t his 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

principle s, 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

NG I 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 con stitutionally

ineffective assistance of counsel.

Our discussion above largely dispenses with Irvin’s first two

argument s

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

address the equal protection issu e 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

T he petitioner was not afforded an opportunity below to set forth

reasons and possibly p roduce 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 rig ht 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 acte d 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 ac t or

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

or (3) there simply could be no satisfactory explanation. All other22

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 whet h er he remained a

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

able to dispassionately evaluate the evidence and apply the la w. (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.

//

//

//

//

//

//

//23 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA

, P. J.

COLLINS, J.