Opinion
A162855
07-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN LEWIS CLINE, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 50902080
STREETER, J.
Defendant John Lewis Cline was involuntary committed after a court trial to an indefinite term as a sexually violent predator (SVP). He argues his equal protection rights under the state and federal constitutions were violated because the trial court, although not required to do so under the Sexually Violent Predator Act (SVPA), nonetheless failed to advise him personally of his right to a jury trial or obtain a valid personal waiver from him of that right.
Cline's equal protection argument turns on a comparison to defendants found not guilty by reason of insanity (NGI's) and offenders with a mental health disorder (OMHD's). Because trial courts must personally advise the person facing civil commitment of his right to a jury trial and obtain the person's valid waiver directly in commitment proceedings for similarly situated NGI's and OMHD's, Cline argues, the disparate treatment of SVPAs cannot withstand constitutional scrutiny. He raises this issue for the first time on appeal.
As our Supreme Court recently explained, "Such prisoners were previously described as mentally disordered offenders, or MDO's. [Citation.] The Legislature recently changed this terminology to 'offender with a mental health disorder.' (Pen. Code, § 2962, subd. (d)(3); Stats. 2019, ch. 9, § 7." (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1095, fn. 3.)
Two appellate courts have recently considered nearly identical equal protection claims by SVP defendants to the one presented in this case. In People v. Cannon (2023) 85 Cal.App.5th 786, review granted February 15, 2023, S277995 (Cannon) and in People v. Magana (2022) 76 Cal.App.5th 310 (Magana), our colleagues recognized that the SVP defendants in those cases stated a potentially valid equal protection claim (considered "likely" by the Magana court (id. at p. 314)), but remanded to give the parties the opportunity to present evidence regarding whether the disparate treatment of SVP defendants is justified under a rational basis standard of review.
Like the Cannon and Magana courts, we reject the People's contention that Cline has forfeited his equal protection claim by not first raising it below. We also follow those courts in holding that SVP defendants are similarly situated to NGI and OMHD defendants regarding jury trial advisement and waiver rights, and order this case remanded to the trial court for consideration of whether the disparate treatment of SVP defendants is justified. We also follow the Cannon and Magana courts on the second prong of the equal protection analysis and conclude that the rational basis test governs any justification the People may offer by way of explanation for the differential treatment Cline has shown on this record. We will remand so that the trial court may apply that test.
I. BACKGROUND
In March 2009, the Contra Costa County District Attorney filed a petition to commit Cline as an SVP under the SVPA (Welf. &Inst. Code, § 6600 et seq.). The District Attorney alleged Cline was convicted in 1991 of crimes under Penal Code sections 187 and 664 (attempted murder), 261 (rape), and 289 (sexual penetration by a foreign object), for which he was sentenced to 29 years in state prison, and that he was also convicted in 2008 under Penal Code section 422 (threatening to commit a crime that would result in death or great bodily injury to another person). The District Attorney further alleged Cline, then detained under Welfare and Institutions Code section 6601.3, met the criteria for SVP commitment because he had been diagnosed with a mental disorder that made it likely he would engage in sexually violent predatory behavior if released.
All undesignated statutory references are to the Welfare and Institutions Code.
At a July 2009 hearing, the trial court found probable cause that Cline would engage in unlawful sexual acts if released and ordered that he stay in custody until further court order. A jury trial was scheduled for October 2009. For a variety of reasons, that trial date was vacated and the trial continued for the next 12 years, including at Cline's request, during which time Cline was placed at Coalinga State Hospital.
In April 2021, the court held a pretrial hearing, which it began by stating, "First, either side has the right to demand a jury trial in this matter, so I want to make sure everybody is agreeing to a court trial." After the prosecutor indicated the People waived a jury trial, the court asked Cline's counsel, "[S]hall I take a jury waiver from your client? How would you like to do that?" Cline's counsel responded, "I'm sorry. Let me just have one moment." The prosecutor then asked for and received the court's permission to approach the clerk and file some papers. Without anything else being said, this exchange was followed by defense counsel stating, "I can take a waiver from [Cline] if you're fine with that." With the court's permission, Cline's counsel then had the following exchange with Cline:
The parties do not indicate that they previously had told the court of a preference for a court trial. The record indicates the court repeatedly scheduled a jury trial until December 2020, when a minute order for a hearing at which counsel, but not Cline, appeared indicates a plan for a two-week court trial. There is no indication in the record whether Cline was personally aware of a change in plan from jury to court trial before the April 2021 hearing.
"[Cline's Counsel]: Mr. Cline, in this matter, you have a right to a jury trial. Do you understand that?
"[Cline]: Yes, sir.
"[Cline's Counsel]: What I'm suggesting is that you give up that right to have a jury and instead have the Court hear your trial. Do you understand that?
"[Cline]: Yes.
"[Cline's Counsel]: Do you agree with that?
"[Cline]: Yes, sir."
The court then said, "Thank you. I'll accept that jury waiver then."
A seven-day court trial followed. Both sides presented evidence, including expert witnesses who disagreed over whether Cline suffered from a mental disorder that predisposed him to commit SVP crimes. The court found beyond a reasonable doubt that Cline was an SVP, ordered him committed for an indeterminate term for appropriate treatment and confinement in a secure facility, and issued an order to that effect.
Cline filed a timely notice of appeal.
II. DISCUSSION
Under the SVPA (§ 6600 et. seq.), 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 or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) An SVP petition must be supported by at least two evaluations by mental health experts appointed by the Director of State Hospitals opining that the person meets the commitment criteria. (§ 6601, subds. (d)-(f); Reilly v. Superior Court (2013) 57 Cal.4th 641, 647.)
After an SVP petition is filed, the trial court must "review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6601.5.) If the court finds that the petition is facially sufficient, it must hold a probable cause hearing within 10 days of the date the order so finding is issued. (§ 6601.5.) If probable cause is found, the subject of the petition is entitled to a trial by court or jury for a determination of whether, beyond a reasonable doubt, the person is a sexually violent predator. (§§ 6603, subd. (a), 6604.) The trial may be continued upon timely written notice and a showing that a continuance is necessary. (§ 6603, subd. (c).) The trial represents the final step in the "complex administrative and judicial process" required to civilly commit an individual as an SVP. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 244.)
At such a trial, a person who is found to be a sexually violent predator is subject to involuntary indefinite commitment for treatment and confinement. (§§ 6603, 6604, 6604.1; see Cooley v. Superior Court, supra, 29 Cal.4th at p. 243 ["The civil commitment can only commence if, after a trial, either a judge or a unanimous jury finds beyond a reasonable doubt that the person is an SVP."].) Thus, at stake is an SVP defendant's liberty, potentially for life since the commitment is indefinite until such time as an SVP successfully petitions for an unconditional discharge upon a determination that his or her "diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged." (§ 6605, subd. (a)(2).) For the alleged SVP, a trial under section 6603 is therefore as consequential as any civil proceeding could possibly be.
In this case, Cline, who was found to be an SVP in a section 6603 proceeding conducted as a court trial, argues the order committing him as an SVP is constitutionally infirm. Comparing his treatment in this case to that of OMHD and NGI defendants, who he claims are similarly situated, Cline contends he suffered a violation of his equal protection rights. He argues that, because he was not personally advised of his right to a jury trial and no valid personal waiver of that right was obtained from him, he was treated differently than similarly situated OMHD and NGI defendants for whom such advisements and personal waivers are statutorily required ahead of commitment proceedings (Pen. Code, §§ 2960 et seq., 1026.5), and that the disparity in treatment cannot be constitutionally justified. He argues, further, that the equal protection violation was prejudicial because the record does not affirmatively show that his waiver, while personally given to the court, was knowing and intelligent.
In his opening brief, Cline also states his waiver was not "knowing, intelligent, and voluntary," but all of his arguments focus on the purported lack of his knowing and intelligent waiver.
Cline did not raise his equal protection claim below. He argues that, nonetheless, we should not hold that he has forfeited it because of the unusual circumstances involved. He further contends the People cannot justify his disparate treatment as compared to NGI and OMHD defendants under the strict scrutiny standard, requiring that we reverse the trial court's judgment. He argues in the alternative that we should reverse the order and remand his case to the trial court to give the parties the opportunity to introduce evidence regarding whether, under the strict scrutiny standard, Cline's disparate treatment was justified.
The People argue Cline has forfeited his claim by his failure to raise it below and, if we conclude Cline's equal protection rights were violated, any violation was harmless because the record affirmatively shows he gave a knowing, intelligent, and voluntary personal waiver. They argue in the alternative that, should we determine there was a prejudicial violation, we should remand the case to the trial court to give the People the opportunity to show there is a rational basis for treating SVP defendants like Cline differently than NGI and OMHD defendants.
A. Relevant Law Regarding Jury Trial Advisements and Personal Waivers
This is the third appellate case in the last fifteen months to consider the type of equal protection claims Cline raises here. In November 2022, our colleagues in Division Five of this appellate district considered in Cannon an SVP defendant's challenge to his commitment order under the SVPA in part because the court purportedly failed to advise him of his jury trial right and obtain his personal waiver of that right. (Cannon, supra, 85 Cal.App.5th at p. 790, rev.gr.) Similarly, in March 2022, the Second Appellate District considered in Magana the claim that an SVP defendant who had been committed to an indefinite term as an SVP after a court trial waived his right to a jury trial after only a "minimal advisement" of his jury trial right, which violated his equal protection rights. (Magana, supra, 76 Cal.App.5th at p. 314.) As we do here, both courts considered issues of forfeiture, whether an SVP defendant was similarly situated to NGI and OMHD defendants, whether to apply the strict scrutiny or rational basis standard in analyzing any disparate treatment of SVP defendants, whether any trial court error was harmless, and whether to remand the case to the trial court. (Cannon, at pp. 794-801; Magana, at pp. 319-328.)
The Second Appellate District also considered some of these issues the year before in People v. Washington (2021) 72 Cal.App.5th 453, 471-475 (Washington).
Our colleagues in Division Five explained the relevant equal protection framework:" 'Decisions by [the California Supreme 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).) However, '[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 the offender personally waive his or her right to a jury trial after being advised by the court of the implications of doing so. ([Washington, supra,] 72 Cal.App.5th [at p.] 463 ['the 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 [OMHD] or the NGI statute is entitled to a jury trial unless he or she, having been advised 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'], &(2) ['trial shall be by jury unless waived by both the 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.) The question raised is whether this legislative distinction violates defendant's equal protection rights." (Cannon, supra, 85 Cal.App.5th at p. 794, rev.gr.)
With this framework in mind, we turn to the particulars of Cline's equal protection claim. We first discuss the People's contention that Cline has forfeited his claim by his failure to first raise it below.
B. We Decline To Find Cline Has Forfeited His Equal Protection Claim
The People, based on forfeiture holdings in cases regarding other matters, argue Cline has forfeited his equal protection claim by failing to raise it first below (see People v. Alexander (2010) 49 Cal.4th 846, 879-880 & fn. 14 [equal protection challenge regarding testimony of a witness who had been hypnotized]; People v. Carpenter (1997) 15 Cal.4th 312, 362 [equal protection challenge regarding the denial of trial severance]; People v. Saunders (1993) 5 Cal.4th 580, 589-590 [statutory error claim regarding the discharge of a jury before it determined the truth of alleged prior convictions]). According to the People, to consider Cline's claim would be to encourage SVP defendants to be silent about their equal protection rights before the trial court and assert them on appeal if they obtained an adverse result at trial, which would prevent the creation of a proper record below and be a waste of judicial resources.
Carpenter was superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107, which itself was superseded in part by statute as stated in People v. Camacho (2022) 14 Cal.5th 77, 107-108.
As the Cannon court has explained, "While a constitutional right may be forfeited if not timely asserted in the lower court [citation], we have discretion to consider the 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." (Cannon, supra, 85 Cal.App.5th at p. 794, rev.gr.) Cline did not have that opportunity here. As we have discussed, his counsel, in the course of "taking" Cline's waiver in open court, recommended he waive his jury trial right in favor of a court trial, as indicated by his statement to Cline after talking with him off the record, "What I'm suggesting is that you give up that right to have a jury and instead have the Court hear your trial. Do you understand that?" Cline answered affirmatively to this question and indicated he agreed with the recommendation. We cannot reasonably expect Cline's counsel would raise an equal protection challenge given his recommendation.
As the Washington court explained, "[I]t is hard to envision how counsel could have asserted this claim. Washington's attorney waived Washington's right to a jury trial .... 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 . . ., 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 been under the [OMHD] 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 right. Under these unusual circumstances, we decline to find forfeiture based on Washington's failure to raise an equal protection challenge in the trial court." (Washington, supra, 72 Cal.App.5th at pp. 473-474; see Cannon, supra, 85 Cal.App.5th at pp. 794-795, rev.gr [same]; Magana, supra, 76 Cal.App.5th at pp. 319-321 [same].)
C. SVP Defendants Are Similarly Situated to NGI and OMHD Defendants
Cline argues SVP defendants are similarly situated to NGI and OMHD defendants regarding the right to jury trial advisements and personal waivers in involuntary commitment proceedings. The People have declined to address the issue.
Our colleagues in Division Five recently provided a concise summary of the relevant law:" 'The constitutional guaranty of equal protection of 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 purposes of the law challenged." [Citation.]' [Citation.] [¶] '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.'" (Cannon, supra, 85 Cal.App.5th at pp. 795-796, rev.gr.)
As Cline points out, our courts, including our Supreme Court, repeatedly have held regarding various equal protection claims that SVP, OMHD, and NGI defendants are similarly situated. (See, e.g., McKee I, supra, 47 Cal.4th at p. 1202-1203 [OMHD and SVP defendants similarly situated regarding length of commitment and burden to prove release]; People v. Dunley (2016) 247 Cal.App.4th 1438, 1443, 1450 [NGI, SVP, and OMHD defendants similarly situated regarding the testimonial privilege]; People v. Flint (2018) 22 Cal.App.5th 983, 989-992 (Flint) [NGI and SVP defendants similarly situated for purposes of determining whether they may be compelled to testify at their commitment hearings].)
As is the case here, the People in Magana did not dispute Magana's contentions that SVP defendants are similarly situated to NGI and OMHD defendants for the purpose of determining their jury trial advisement and personal waiver rights. (Magana, supra, 76 Cal.App.5th at p. 322.) In Cannon, the People conceded the issue. (Cannon, supra, 85 Cal.App.5th at p. 796, rev.gr.) These courts treated the defendants as similarly situated without further analysis, relying in significant part on McKee I. (Magana, at p. 322; Cannon, at p. 796.)
We conclude SVP, NGI, and OMHD defendants are similarly situated regarding jury trial advisement and waiver rights. They all have committed criminal acts and been found to suffer from mental conditions that present a danger to others. (See McKee I, supra, 47 Cal.4th at p. 1203; Flint, supra, 22 Cal.App.5th at pp. 990-991.) They have been committed to the state hospital in order to protect the public and provide treatment for their mental conditions. (See ibid.) We agree with Cannon and Magana that they are similarly situated for the purpose of determining SVP defendants' jury trial advisement and personal waiver rights.
D. The Trial Court's Possible Violation of Cline's Equal Protection Rights Was Prejudicial Because Cline Did Not Give a Knowing and Intelligent Waiver of His Right to a Jury Trial
A trial court is not required to make, or confirm that a defendant is given, a" 'specifically formulated canvass'" of a defendant's right to a jury trial in the course of determining whether a defendant has given a knowing, intelligent, and voluntary waiver of that right. (People v. Sivongxxay (2017) 3 Cal.5th 151, 168 (Sivongxxay).) Nonetheless, our Supreme Court has emphasized "the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial." (Id. at p. 169.) It has recommended that trial courts advise defendants of "the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence." (Id. at p. 169.)
Our task as a reviewing court is to independently examine the record to determine whether the defendant's jury waiver was knowing, intelligent, and voluntary. (See People v. Doolin (2009) 45 Cal.4th 390, 453; People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) A reviewing court will "uphold the validity of a jury waiver' "if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances."' [Citation.] We do not start with a presumption of validity that may only be rebutted by signs of a defendant's confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent." (People v. Daniels (2017) 3 Cal.5th 961, 991 (lead opn. of Cuellar, J.) (Daniels); see People v. Collins (2001) 26 Cal.4th 297, 310.)
Trial courts are not required to follow a rigid formula or use any particular words to ensure that a jury waiver is knowing and intelligent. (Sivongxxay, supra, 3 Cal.5th at pp. 169-170; Daniels, supra, 3 Cal.5th at pp. 992-993 (lead opn. of Cuellar, J.) ["We continue to eschew any rigid rubric for trial courts to follow in order to decide whether to accept a defendant's relinquishment of this [jury trial] right."].) "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." (Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 278; see Sivongxxay, supra, 3 Cal.5th at pp. 166-167.) While there is not a rigid formula, the record must show sufficient engagement by the court directly with a waiving defendant to demonstrate that a valid waiver was made. "[T]he trial court is not merely a passive receiver of an attempted [jury] waiver . . . . The court's obligation 'to advise [the] defendant of his right to [a] jury trial' and to 'determine impartially whether [the] defendant's waiver of jury trial was knowing, intelligent, and voluntary' is a 'constitutional procedural duty.'" (Daniels, supra, 3 Cal.5th at p. 993 (lead opn. of Cuellar, J.).)
Here, we conclude the record is insufficient to support a valid waiver. Though the applicable standard is flexible enough to accommodate day-to-day realities as befits the setting of each case, proactive efforts by the trial court are crucial. While the totality of the circumstances govern in the end, the importance and gravity of the right involved will generally require that the explanation of what it means to give the right up must be delivered by the court. In this case, the court failed to personally advise Cline of his right to a jury trial, instead relying on his counsel to discuss the matter with him. Four years after Sivongxxay and Daniels, the court took no steps to ensure that Cline comprehended what a jury trial entails. (Sivongxxay, supra, 3 Cal.5th at p. 169.) The court did not ask any of the questions suggested by the Supreme Court or take any other action to ensure that Cline's waiver was adequately informed. Counsel always plays a role in transmitting critical information to the client (Daniels, supra, 3 Cal.5th at pp. 996-997), but the source of this particular message matters. From an appellate perspective, the confidence we have that a waiver advisement was received and understood will often depend on the trial court delivering the message directly.
The People emphasize the totality of the circumstances test and urge us to find any equal protection violation shown by this record to be harmless because the record shows Cline gave a knowing, intelligent, and voluntary personal waiver, whether or not he was personally and fully advised of his rights. (See People v. Jones (2018) 26 Cal.App.5th 420, 430 ["The [California] Supreme Court and Courts of Appeal have consistently concluded that the failure of a trial court to provide a specific advisement does not mean there was not a knowing, intelligent, and voluntary waiver"].) Jones was preceded by People v. Blackburn (2015) 61 Cal.4th 1113 (Blackburn), where our Supreme Court held that "a trial court's failure to properly advise an [OMHD] 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 advisement 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." (Id. at p. 1116.) The Cannon and Magana courts applied this standard to claims that SVP defendants were prejudicially denied their equal protection rights in part because of a trial court's failure to personally advise a defendant of his or her jury trial rights. (Cannon, supra, 85 Cal.App.5th at p. 800-801, rev.gr.; Magana, supra, 76 Cal.App.5th at p. 327.) They held the records before them were silent on the issue, requiring remand to the trial court to litigate the defendants' equal protection claims. (Cannon, at p. 801; Magana, at p. 327.)
Citing Jones and Blackburn, the People point out that "the court watched [Cline] consult with his counsel prior to entering the waiver," a consultation that was "apparently long enough for the court and the prosecutor to attend to other logistics while the discussion took place," referring to the prosecutor's apparent filing of certain papers with the court's clerk. (See, e.g., People v. Weaver (2012) 53 Cal.4th 1056, 1075 [jury waiver valid, in part because "the court gave [the defendant] ample time to consider and reconsider his decision and to discuss it fully with counsel"].) They contend, "Although the transcript does not reflect the contents of the discussion between [Cline] and his counsel, it is reasonable to infer that counsel informed him about the nature and mechanics of a jury trial and gave his recommendation that [Cline] opt for a court trial." Further, Cline's "unequivocal answer, after consulting with his counsel, that he understood his right to a jury trial and agreed to waive it, demonstrates that his right was knowing, intelligent and voluntary."
We are not persuaded. When the court asked the parties whether they were waiving their rights to a jury trial, Cline's counsel asked the court for "one moment" to talk with Cline. This suggests he had not conferred, or at least had not fully conferred, with Cline beforehand about waiving his right to a jury trial. Further, the record does not show that counsel took any longer than the "one moment" he asked for to talk with Cline. The request by, and the court's grant of permission to, the prosecutor to approach the clerk with certain papers occurred in the time it took to voice the couple of sentences spoken and, indeed, there is no indication that the prosecutor-if he did in fact approach the clerk-took more than a moment to approach the clerk. No one else spoke, and no recess was taken, before Cline's counsel told the court he could take Cline's waiver. The only reasonable inference from this record is that the "moment" taken by counsel to talk with Cline was just that-"a minute portion or point of time," as the word is defined by Merriam-Webster. (https://www.merriam-webster.com/dictionary/moment, July 31, 2023.) It cannot reasonably be inferred that Cline was fully advised of his right to a jury trial in so brief a consultation.
Further, Cline's counsel's statements to Cline following this momentary consultation contained no advisement, and certainly not the robust advisement recommended by our Supreme Court in Sivongxxay, supra, 3 Cal.5th at page 169. Even worse, counsel's principal statement to Cline was, "What I'm suggesting is that you give up that right to have a jury and instead have the Court hear your trial. Do you understand that?" This statement strongly suggests counsel, rather than fully advise Cline of his rights during their consultation, recommended to Cline that he should waive a jury trial and that Cline, rather than making a knowing and intelligent waiver based on full information, merely assented to that recommendation.
Also, nothing in the record indicates Cline strongly favored having a court trial, notwithstanding his "unequivocal" reply to his counsel's questions. Contrary to the People's contention, such an answer does not establish a knowing, intelligent, and voluntary waiver. As our Supreme Court has explained regarding a defendant's jury waiver, "[c]onfidence does not imply comprehension. Individuals are entirely capable of categorically asserting a position without awareness that the roots of that position lie in ignorance or lack of reflection. It [is] incumbent upon the court to verify, not merely to assume, that [a waiving defendant] indeed grasped the actual nature of the jury right-even if only at a basic level." (Daniels, supra, 3 Cal.5th at p. 996 (lead opn. of Cuellar, J.) [what impression the defendant may have had of what a jury trial was "is well beyond what we can discern from this record"]; see id. at pp. 1028-1029 (conc. &dis. opn. of Kruger, J.).)
Finally, the People contend the record affirmatively shows Cline gave a knowing, intelligent, and voluntary waiver because he "was no stranger to the criminal justice system.... [H]e had been convicted in 1991 for attempted murder, two counts of forcible rape, and one count of penetration with a foreign object," and pleaded guilty in 2008 to making criminal threats. While acknowledging it is not known whether his 1991 conviction was obtained via a guilty plea or a jury trial, the People assert that, "either way, he would have gained an understanding of the jury trial process, either by participating in one, or by going through the waiver process associated with entry of a plea."
Nothing affirmatively shows Cline was fully advised of his jury trial rights in any of these prior criminal proceedings. Also, if Cline was advised in any of those proceedings twenty-nine and twelve years before, many years had passed by the time of his 2020 SVP commitment proceeding, casting considerable doubt on what he might have remembered from such an advisement. Further, reliance on those advisements presumes that Cline somehow knew that the jury trial rights held by defendants in criminal trials were also held by SVP defendants in civil commitment proceedings. (See Reilly v. Superior Court, supra, 57 Cal.4th at p. 648 [an SVP trial, "[t]hough civil in nature, . . . contains a number of procedural safeguards commonly associated with criminal trials, including the alleged SVP's right to a jury trial (§ 6603, subd. (a)), to assistance of counsel (ibid.), and to a unanimous jury finding that he or she is an SVP beyond a reasonable doubt before he or she may be committed (§ 6604)."].) This is not a reasonable inference to make, particularly because Cline was facing his first SVP proceeding. (Cf. People v. Roles (2020) 44 Cal.App.5th 935, 951 [in the one case cited by the People, court finds prior experience in the criminal justice system was one indication that the defendant's jury trial waiver in a subsequent criminal case was knowing and intelligent].)
In sum, we conclude, based on our review of the totality of the circumstances, that the record, while not entirely silent, contains barely a whisper suggesting Cline gave a knowing and intelligent waiver of his right to a jury trial. The People's harmless error argument is without merit.
E. Any Justifications Offered by the People for Cline's Disparate Treatment Must Be Evaluated Under the Rational Basis Standard
Decisions 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 People v. Nolasco (2021) 67 Cal.App.5th 209, 222-225 (Nolasco) [applying rational basis in the context of developmental disability commitment but acknowledging that "the law in this area appears to be in a state of flux"] with People v. Buffington (1999) 74 Cal.App.4th 1149, 1156 ["Strict scrutiny is the correct standard of review in California for disparate involuntary civil commitment schemes because liberty is a fundamental interest"].) In this case, we choose rational basis.
We agree with our appellate colleagues in Cannon, Magana and Nolasco that Barrett and its use of the rational basis standard governs our case. Under traditional equal protection principles, the rational basis test is generally not difficult for the government to meet. "[A] challenger must show that the [challenged] law fails so-called 'rational basis' scrutiny by demonstrating that 'there is no "rational relationship between the disparity of treatment and some legitimate government purpose." '" (Nolasco, supra, 67 Cal.App.5th at p. 220.) Thus, the test has been described as" '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 "empirically substantiated," and regardless of whether the Legislature ever "articulated" that reason when enacting the law.'" (Id. at pp. 220-221.) "In other words, the legislation survives constitutional scrutiny as long as there is' "any reasonably conceivable state of facts that could provide a rational basis for the classification." '" (People v. Turnage (2012) 55 Cal.4th 62, 74.)
But in adopting the rational basis test, "we do not suggest that the rights 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 separate opinion in Barrett: 'Whether or not an advisement alters 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.' ([People v. ]Barrett [(2012)] 54 Cal.4th [1081,] 1149 (conc. &dis. opn. of Liu, J.).)" (Cannon, supra, 85 Cal.App.5th at p. 799, rev.gr.)
While we leave it to the trial court to assess whether the People can meet the rational basis test in this case, at this stage we must say that, despite the deferential nature of the rational basis test, we have difficulty conceiving of a principled way to justify why NGI and OMHD defendants enjoy the protection of an admonition from a judicial officer as to the consequences of waiving the right of jury trial-thus underscoring to them the gravity of that waiver-while SVP defendants do not. As our Supreme Court pointed out in People v. Barrett, supra, 54 Cal.4th 1081, the permanent cognitive disability of developmentally disabled persons, as a class, means that personal admonitions, for them, may be of little or no utility. But as the Nolasco court pointed out, persons suffering from mental disabilities, as a class, many suffer from more transient forms of cognitive disability. These individuals may not be written off as so unreachable that their ability to participate in proceedings against them may be evaluated differently than for less profoundly impaired individuals. And in this respect, SVPs, as a class, are more like NGI and OMHD defendants than developmentally disabled individuals.
F. This Case Should Be Remanded To Give the People the Opportunity To Justify Cline's Disparate Treatment
Cline argues we should conclude the People cannot assert a compelling interest that justifies treating him differently than NGI and OMHD defendants regarding his jury trial advisement and waiver rights and, therefore, we should hold his equal protection rights have been violated without remanding this matter to the trial court. He points out that our Court of Appeal colleagues in Washington had "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." (People v. Washington, supra, 72 Cal.App.5th at p. 474.)
We agree with Washington's observation that it is difficult to discern how an SVP defendant's dangerousness would justify treating SVP defendants differently than NGI and OMHD defendants for purposes of the procedural protections attendant to waiver of a jury trial right, but we disagree that that case supports Cline's invitation to decide the equal protection issue now, without remand. First of all, we do not agree that the People will bear the burden of demonstrating that a compelling interest justifies the disparate treatment at issue in this case. Second, and more basically, as Cline acknowledges, the Washington court remanded the equal protection claim before it in that case to give Washington the opportunity to first raise the challenge in the trial court, and for the People to respond. (People v. Washington, supra, 72 Cal.App.5th at pp. 474-475.) We will follow that approach in this case, as our colleagues in Cannon and Magana did.
Cline also cites Blackburn, supra, 61 Cal.4th at pages 1132 to 1134, which held that the trial court's error in denying an OMHD defendant his statutory right to a jury trial constituted a miscarriage of justice that merits automatic reversal without consideration of the strength of the evidence. This too is unpersuasive because Blackburn did not involve an equal protection challenge that was first raised on appeal, before the parties had the opportunity to create an evidentiary record on the issue. As noted above, the rational basis test requires some principled showing that the challenged differential treatment at issue in this case was not merely arbitrary on the part of the Legislature (People v. Turnage, supra, 55 Cal.4th at p. 74), but that does not mean the People bear an evidentiary burden. Should Cline wish to produce evidence, the People, of course, may wish to respond.
Like the courts in Washington, Cannon, and Magana we therefore conclude that remand is appropriate in order for the parties to have the opportunity to create a better record than we have now regarding Cannon's equal protection claim. (Washington, supra, 72 Cal.App.5th at pp. 474-475; Cannon, supra, 85 Cal.App.5th at p. 800, rev.gr. ["remand is necessary to give the People a meaningful opportunity to demonstrate a valid constitutional justification for the SVP's differential legislative treatment"]; Magana, supra, 76 Cal.App.5th at p. 326 [same]; McKee I, supra, 47 Cal.4th at pp. 1207-1208 [remanding to give the People the opportunity to show that, as between SVP and OMHD defendants, "the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society"]; Flint, supra, 22 Cal.App.5th at p. 993 [remanding"' "to the trial court to conduct an evidentiary hearing to allow the People to make an appropriate showing"' "], quoting People v. Field (2016) 1 Cal.App.5th 174, 197 [same].) Without such a record, we lack the ability to make a conclusive determination of an equal protection violation here. (See Washington, supra, 72 Cal.App.5th at p. 474 ["given the lack of a record in the trial court, we are ill equipped to address Washington's equal protection claim on appeal"].) As we have discussed, on remand, the trial court should evaluate any justifications for Cline's disparate treatment under the rational basis test.
III. DISPOSITION
The order adjudging Cline to be an SVP and committing him for an indeterminate term is conditionally affirmed. We remand for the parties to have an opportunity to make an evidentiary showing regarding Cline's equal protection challenge to the SVPA's jury trial advisement and waiver provisions. We instruct the trial court to evaluate any justifications for Cline's disparate treatment under the rational basis standard. If the trial court determines there is an equal protection violation, the court shall vacate the order and set the matter for a jury trial, unless Cline provides a knowing, intelligent, and voluntary waiver of his right to a jury trial after being personally advised of that right.
WE CONCUR: BROWN, P. J., FINEMAN, J. [*]
[*] Judge of the Superior Court, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.