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California Supreme Court:
No Fundamental Interest in Personal Waiver of Jury Right
Majority Says Whether Statute, Providing Only On-Demand Entitlement for Sexually Violent Predators Facing Civil Commitment, Violates Equal Protection Is Not Subject to Heightened Review, Drawing Dissent
By Kimber Cooley, associate editor
A divided California Supreme Court held yesterday that the question of whether the Sexually Violent Predator Act violates equal protection principles by providing covered defendants with a right to a jury trial as to involuntary civil commitment decisions only if they demand it—unlike other competency statutory schemes that require a personal advisement and waiver—is only subject to rational basis review.
In an opinion by Justice Carol Corrigan, joined in by Chief Justice Patricia Guerrero and Justices Leondra Kruger, Joshua P. Groban, and Martin J. Jenkins, the high court reasoned that such defendants do have a fundamental right to a trial by jury, but not as to any particular procedures for asserting that entitlement, and as such strict scrutiny does not apply.
Justices Goodwin H. Liu and Kelli Evans dissented, arguing that the majority’s analysis conflates due process principles with those governing equal protection challenges.
At issue is the statutory scheme codified at Welfare and Institutions Code §6600 et seq., that provides that a sexually violent predator (“SVP”)—defined in the act as “a person who has been convicted of a sexually violent offense…and who has a diagnosed mental disorder that makes…it…likely that he…will engage in sexually violent criminal behavior”—may be involuntarily committed to a state-run hospital at the end of his prison sentence.
Subdivision (f) of §6603 specifies that “[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.”
Sexually Violent Predator
The question arose after William Cannon was ordered committed to a state-run hospital for an indeterminate term by Mendocino Superior Court Judge Ann Moorman, who found that he was a sexually violent predator within the meaning of the statute. Cannon had previously been sentenced to seven years in prison for committing an assault with intent to commit rape relating to an attack on a 16-year-old girl.
As his prison term neared completion, the Mendocino County District Attorney’s Office filed a petition, in 2016, under the Sexually Violent Predator Act (“SVPA”) to request that he be civilly committed under the statute, pointing out that Cannon had admitted that, prior to his arrest, he had been “hunting females to sexually assault them.”
Cannon’s attorney, Linda Thompson of the Mendocino County Public Defender’s Office (now retired), on multiple occasions represented that her client chose not to come to court and said that she had “confirm[ed]” with him that the matter would proceed to “court trial, not a jury trial.”
At no point during any pre-trial conferences leading up to the four-day bench trial in 2020 did Moorman personally advise Cannon of his right to demand that a jury hear his case, nor did Cannon personally waive that entitlement.
On appeal, Cannon argued for the first time that his equal protection rights were violated, citing that defendants who have pled guilty by reason of insanity and those facing confinement due to mental health disorders are statutorily required to be personally advised, and waive, their right to a trial by jury on the question of commitment to a state hospital. He asserted that there was no constitutional justification for the differential treatment of SVPs.
Div. Five of the First District Court of Appeal exercised its discretion to consider the constitutional question, found that rational basis review was the appropriate standard, and remanded the matter for the trial court to consider the challenge in the first instance.
The high court granted review “to address the narrow question of whether a strict scrutiny or rational basis standard applies to Cannon’s equal protection challenge.”
Equal Protection
Corrigan noted that strict scrutiny applies in an equal protection challenge if the law in question discriminates against a protected class or differentiates in such a way as to burden a “fundamental right or interest.”
Addressing whether Cannon has implicated such fundamental right on appeal, she wrote:
“We agree that SVPA commitment candidates have a right to personally decide whether to demand or waive jury….The crux of Cannon’s argument, however, concerns the method by which SVP candidates are informed of their statutory jury right, the manner in which their decision is communicated to the court, and, in light of the candidate’s decision, whether a court or jury trial is called for. Cannon fails to persuade that the particular procedure he identifies, while certainly efficacious, is rooted in either the state or federal Constitution, or otherwise fundamental under our precedents.”
The justice continued:
“In the civil context…the state constitutional right to a jury may be waived either expressly, impliedly based on conduct, or by ‘failing to announce that a jury is required….’….Furthermore, the client’s choice to demand or waive a jury in all matters has long been expected to be made in consultation with legal counsel, and particularly in civil matters, the decision is traditionally communicated to the court through the attorney.”
The jurist pointed to the 2012 decision by the state high court in People v. Barrett, in which the court addressed the due process and equal protection claims by an adult with mental disorders who was ordered civilly committed to a state hospital after she was found to be dangerous. In that case, the court found that there was no constitutional violation in allowing for the waiver of a jury trial right through the attorney representing the target of the proceedings.
Corrigan wrote:
“While several aspects of that case, including the nature and degree of Barrett’s disability, are distinguishable from the question as it is framed here, that precedent nevertheless supports the conclusion that the jury advisement and waiver procedures themselves do not constitute independent fundamental rights or interests and that the legislatively selected procedures in the SVPA, which make a jury trial available on demand, do not impose a significant burden on the fundamental liberty interest itself.”
She remarked:
“On remand, the court must determine whether the People put forward a justification for the Legislature’s choice of differing procedures and whether the defense can establish that those proffered reasons fail to demonstrate a rational basis for the legislative choice. The court must also determine whether the facts presented demonstrate by a preponderance of the evidence that Cannon was aware of his right to demand a jury trial and chose to waive it.”
Liu’s Dissent
Liu wrote:
“In focusing primarily on whether an alleged SVP has a ‘fundamental right’ to personal advisement and waiver, the reasoning in today’s opinion obscures the main issue in this case.”
He argued:
“[I]t is important to note the distinction between fundamental interests and fundamental rights: Fundamental rights are secured to every person, and the assertion of a violation does not depend on any comparative claim….Fundamental interests….are not independent rights….Instead, the state’s duty is conditional; if legislation protects or provides a fundamental interest for some people but not others, a heightened justification for the disparate treatment is required.”
The justice noted that case law does not “suggest that in determining whether a particular deprivation impinges on a fundamental interest and warrants heightened equal protection scrutiny, courts must first conclude as a matter of due process that the deprivation infringes an independent fundamental right.”
Saying that “it is evident that much of today’s opinion goes on an unnecessary tangent in laboring to prove that Cannon has no separate fundamental right to the personal advisement and waiver process he seeks,” he argued:
“Today’s opinion…says Barrett determined that personal advisement and waiver requirements in civil commitment proceedings are not ‘fundamental rights’ and their absence does not ‘unduly burden[] fundamental interests.’…But Barrett conducted no fundamental interest analysis at all. Instead, the court held that the equal protection claim at issue failed at the ‘threshold’ step of establishing that ‘dangerous mentally retarded persons and dangerous mentally disordered persons are similarly situated….’….The court reasoned that in light of their differing ‘mental conditions,’ ‘the two groups are not similarly situated as to…comprehending and controlling the decision whether to request a jury trial.”
Acknowledging that “intermediate scrutiny is not an available standard,” he said that “I am not convinced that the legislative classification here warrants the most exacting scrutiny either.” Liu argued: “I would instead apply the…that on remand ‘[t]he trial court must determine whether the legislative distinctions in classes of persons subject to civil commitment are reasonable and factually based—not whether they are incontrovertible or uncontroversial….
“In the future, the civil commitment context may prove to be an appropriate area for our courts to transcend the rigid rational basis/strict scrutiny binary and adopt an approach with ‘nuance and sensitivity’ to account for the competing interests at stake in each case.”
Evans joined with Liu’s dissent as to the level of appropriate scrutiny and his assertion that Barrett does not control.
The case is People v. Cannon, 2025 S.O.S. 2372.
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