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C.A. Panel Questions Constitutionality of SVPA Provision
Justice Feuer Says Prosecution Would Have Difficult Time Squaring Procedure With Equal Protection
By a MetNews Staff Writer
Div. Seven of the Court of Appeal for this district on Friday expressed doubt that the People would be able to show justification for persons being adjudged to be sexually violent predators, and institutionalized, without being advised of the right to a jury trial and a knowing waiver being obtained, but has remanded a case to the Los Angeles Superior Court to permit such a showing to be attempted.
The opinion notes that those involuntarily committed for treatment as mentally disordered offenders (“MDO”s) and defendants who have pled not guilty by reason of insanity (“NGI”) must be given such an advisement, under statutes, but the Sexually Violent Predator Act (“SVPA”) does not contain such a requirement in committing sexually violent predators (“SVP”s). Justice Gail Ruderman Feuer wrote:
“We question whether the People will be able to show the dangerousness of SVP’s is a constitutionally valid justification for differential treatment of alleged SVP’s with respect to procedural protections of their right to a jury trial, as asserted by the People at oral argument, but we remand to the trial court to allow Washington to assert his equal protection challenge and the People to present this or another justification for the differential treatment of SVP’s.”
The People were represented at oral argument by the Office of Attorney General while the Los Angeles County District Attorney’s Office would assume the prosecutorial role on remand. If its present acquiescence in habeas corpus matters is an indicator, it could choose not to oppose a bid by the defendant, Clayborn Washington, for a trial by jury as to whether he is a SVP.
Arnold Grants Petition
Washington was convicted of five sexually violent offenses committed in 1984 and a petition was filed on May 14, 2014, prior to the expiration of his prison term, to declare him an SVP, to be institutionalized for an indefinite period. Los Angeles Superior Court Judge Mark S. Arnold granted the petition after a bench trial.
Welfare and Institutions Code §6603(a), a part of the SVPA, provides that “[a] person subject to this article is entitled to a trial by jury,” but subsection (f) specifies:
“If 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.”
Feuer said the statute plainly does not require an advisement of the right to a jury trial and ab express waiver of that right, and declared that there was no due process violation because, when Arnold recited that there was no demand for a jury, Washington, who attended the hearing by telephone, could have spoken up and indicated that he did want a jury.
No Forfeiture
The appeals court opted not to deem Washington’s equal protection claim forfeited based on not having been made in the trial court. Feuer explained:
“The only way Washington could have asserted an equal protection challenge in the trial court would have been for his attorney to request the trial court advise Washington of his right to a jury trial and take a personal waiver of that right. Then, if the court declined to do so based on the absence of a requirement in the SVPA, Washington’s attorney could have argued not doing so would violate equal protection principles. But presumably, Washington’s attorney believed Washington wanted to proceed with a court trial (which may or may not have been the case), and thus, counsel would have been unlikely to demand the court advise Washington of his jury trial right and take a personal waiver.”
She noted:
“This leaves us in the untenable situation that Washington has not forfeited his equal protection claim, but given the lack of a record in the trial court, we are ill equipped to address Washington’s equal protection claim on appeal.”
Conditionally Affirmed
The opinion sets forth this disposition:
“The order declaring Washington to be an SVP and committing him to the California Department of State Hospitals for an indeterminate term is conditionally affirmed. We remand for Washington to have an opportunity to raise an equal protection challenge to the SVPA’s jury waiver provisions. If the trial court determines there is an equal protection violation, the court shall vacate the order declaring Washington to be an SVP and set the matter for a jury trial, unless Washington provides a knowing and intelligent waiver of his right to a jury trial after being personally advised of that right.”
The case is People v. Washington, 2021 S.O.S. 6490.
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