People v. MorrisonPeople v. Morrison
On appeal, Morrison contends that the trial court violated his constitutional rights by not personally advising him of his right to jury trial and securing a personal waiver of that right. Morrison maintains that the SVPA‘s failure to require a personal jury trial advisement and waiver, unlike statutes governing trials for other types of civil commitment, violates the constitutional equal protection guarantee. The principal issue raised in this appeal is the level of scrutiny we should apply to that question.
We decide Morrison‘s equal protection challenge is subject to rational basis review. Because Morrison did not raise the issue in the trial court, we conditionally affirm the commitment order and remand the matter to give Morrison the opportunity to raise his equal protection claim before the trial court. We also provide guidance to the trial court on the principles it should apply when resolving Morrison‘s constitutional claim.
I. PROCEDURAL BACKGROUND2
On May 11, 2017, the People filed a petition to commit Morrison as a sexually violent predator upon his release from prison. The petition attached evaluations from two psychologists, each of whom concluded Morrison met the statutory criteria.
On June 14, 2019, Morrison‘s trial counsel appeared in the trial court on his behalf, waived his personal appearance, and requested a jury trial with a
On January 31, 2020, Morrison‘s trial counsel indicated that she would not be ready for the March trial date but would be “ready within the calendar year and anticipate[d] a trial date in mid[-]June.” She explained “because of the nature of the sexually violent predator cases, it requires evaluators and doctors from around the state who have previously evaluated the individual to come and testify. Those doctors book out months ahead of time.” She requested a trial setting date so she could have a firm trial date to “go forward for those experts.”
On February 5, 2020, the parties again appeared for a status conference (with Morrison‘s personal appearance waived by his counsel). Morrison‘s trial counsel requested a trial date of mid-June and indicated they were “going to have a court trial.” She stated “the department of state hospital evaluators get booked out many, many, many months in advance. [¶] So if it doesn‘t actually go around mid-June to mid-July, we [] might get delayed for [] many months or [a] year.” The trial court replied that it could not give a definite trial date but could set it for June 1, 2020, and try and “land in the window you want to land in.” Morrison‘s trial counsel replied that if the trial could occur any time between June 15th and mid-July, they would “be set.”
The trial court and Morrison‘s counsel had the following exchange:
“The court: All right. And if you want to enter a jury trial waiver at some point, that‘ll obviously increase the options of available departments to hear.
“[Morrison‘s trial counsel]: Your honor, I‘m happy to enter a jury trial waiver at this time.
“The court: Don‘t you need your client for that?
“[Morrison‘s trial counsel]: I will file a supplemental declaration with the court that will augment my oral declaration here. And then it‘ll just be clear for the record when this comes up again that we don‘t need a full jury trial department but just a court trial.
“The court: Why don‘t you remind me of that when it comes up so we then take a personal waiver when your client is here.
“[Morrison‘s trial counsel]: Okay.”
For reasons unexplained by the record (but perhaps related to the effects of the COVID-19 pandemic on court operations in Santa Clara County3), Morrison‘s trial did not proceed in mid-June as scheduled. The parties appeared for several trial status conferences, including on July 17, 2020, November 1, 2021, January 3, 2022, January 24, 2022, April 4, 2022, and June 27, 2022. Morrison‘s appearance was waived by his trial counsel, who on several occasions confirmed that Morrison‘s trial would be a court trial.
Morrison‘s trial began on August 2, 2022, and took place before the court without a jury over nonconsecutive days in August, September, and October 2022.4 Neither the trial court nor Morrison‘s trial counsel referenced a jury trial waiver on the record during Morrison‘s trial.
On October 20, 2022, the trial court found true the petition alleging Morrison to be a sexually violent predator. The court found Morrison was convicted of a qualifying offense, that he suffers from a currently diagnosed mental disorder predisposing him to commit a criminal sexual act, and that, due to his mental disorder, Morrison is likely to reoffend in a sexually predatory fashion. The court committed Morrison to the State Department of State Hospitals for an indeterminate term for treatment and confinement. Morrison timely appealed.
In this court, Morrison raises a single constitutional claim. He concedes that the SVPA does not require that the trial court personally advise a person of his or her right to jury trial or secure a personal waiver of that right. Morrison also concedes that he did not raise his equal protection claim in the trial court. Nevertheless, Morrison maintains that his equal protection rights were violated.5 Morrison argues that the disparate treatment afforded to
Morrison further maintains that both he and the People “are entitled to an opportunity to prove their case at an evidentiary hearing.” He requests that the commitment order be conditionally reversed and remanded for an evidentiary hearing to determine whether “California can justify the disparate treatment of alleged [sexually violent predators] that results from denying them the right to be advised of their right to a jury trial and their right to decide whether to have a jury trial.”
The Attorney General responds that the rational basis standard applies to a Morrison‘s equal protection claim. The Attorney General also requests that the matter be remanded for an evidentiary hearing.6 The Attorney General states that this court “should conditionally affirm the judgment and remand the case to the trial court to give [Morrison] the opportunity to raise the claim and the People an opportunity to justify the disparate treatment under a rational basis standard of review.”
II. DISCUSSION
The SVPA authorizes the involuntary civil commitment of certain convicted sex offenders, defined in the Act as “sexually violent predators” (SVP‘s). The Act ” ‘protect[s] the public from dangerous felony offenders with mental disorders and [] provide[s] mental health treatment for their disorders.’ ” (State Department of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344 (State Hospitals).) The SVPA “defines an SVP as ‘a person who has been convicted of a sexually violent offense7 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.’ ” (Ibid.)
Court proceedings related to the SVPA begin with the filing of a petition for commitment.8 The petition may not be filed unless two independent professionals concur that the person meets the criteria for commitment. (
The statutory provisions at issue in this appeal relate to the determination of whether the trial is by a jury or the court. The Act provides the individual who is the subject of the petition is “entitled to a trial by jury.” (
Whether the trial is before a court or jury, the burden of proof is identical. “The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable.” (
If the factfinder “determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment
The SVPA is one of many civil commitment schemes in California. (See People v. Barrett (2012) 54 Cal.4th 1081, 1110 (Barrett) [listing nine civil commitment provisions]; id. at p. 1118 (conc. & dis. opn. of Liu, J.) [“California has a panoply of statutes providing for the involuntary commitment of individuals who pose a threat to themselves and others.“].) Most, like the SVPA, apply to persons who have been accused or convicted of a crime. (Barrett, at p. 1118 (conc. & dis. opn. of Liu, J.).)
Morrison acknowledges that, by its text, the SVPA does not include a right to a personal jury trial advisement or a personal jury trial waiver. He argues that these rights should be read into the Act by operation of constitutional law—specifically, the equal protection clause. He contends that his right to equal protection was violated by the absence of these rights in the Act but their inclusion in two other civil commitment schemes in California: those for violent offenders with mental health disorders (OMHD) (
In two companion cases, the California Supreme Court concluded that the OMHD and NGI statutory schemes require a personal advisement of the right to jury trial and a personal waiver of that right by the individual unless the court finds substantial evidence that the individual lacks the capacity to make a knowing and voluntary waiver. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1116 (Blackburn) [OMHD‘s] & People v. Tran (2015) 61 Cal.4th 1160, 1167 (Tran) [NGI‘s].)
In reaching these decisions, the California Supreme Court relied on statutory language in those statutes related to the jury trial right that differs from that in the SVPA. For example, for offenders with a mental health disorder, the statute provides with respect to the hearing on the commitment petition, “The court shall advise the person of the right to be represented by an attorney and of the right to a jury trial.” (
As the California Supreme Court summarized, “The meaning of this text is unambiguous. The court must advise the defendant of the right to counsel and the right to a jury trial. And the court must make this advisement to ‘the person,’ not to his or her attorney.” (Blackburn, supra, 61 Cal.4th at p. 1123.) The Supreme Court held that the statutory scheme establishes “a default rule that a court must obtain a personal waiver of the defendant‘s right to a jury trial before holding a bench trial.” (Id. at p. 1125.) It reached this conclusion as a matter of statutory construction in part because “reading the waiver provision together with the advisement provision, as we must, confirms that the waiver decision belongs to the defendant in the first instance.” (Ibid.)
In the companion case of Tran, the California Supreme Court “address[ed] the meaning of nearly identical language in the statutory scheme for extending the involuntary commitment of a person originally committed after pleading not guilty by reason of insanity (NGI) to a criminal offense.” (Tran, supra, 61 Cal.4th at p. 1162 make a knowing and voluntary waiver, in which case defense counsel controls the waiver decision.” (Ibid.)
The decisions in Blackburn and Tran, and the statutes they construe, form the basis of Morrison‘s equal protection challenge to the procedures used here by the trial court in determining the factfinder for his trial. Morrison‘s counsel initially demanded a jury trial and then subsequently waived the right to jury trial on his behalf. Morrison himself was never addressed by the court on the record with respect to his right to jury trial or his waiver of that right. His trial on the petition was before the court—not a jury. Although Morrison‘s trial counsel alluded to having Morrison complete a declaration waiving his right to jury trial, no such waiver appears in the record. Morrison asserts that this procedure violated his right to equal protection of the laws.
Under the equal protection clause of the Fourteenth Amendment to the United States Constitution, no state may “deny to any person within its jurisdiction the equal protection of the laws.” (
Although traditionally courts in California analyzed equal protection claims using a two-step process (Hardin, supra, 15 Cal.5th at p. 848), our Supreme Court has clarified that the inquiry usually involves only a single question. “[W]hen plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not.” (Id. at pp. 850–851.)
Morrison and the Attorney General dispute the standard of review applicable to Morrison‘s equal protection challenge. Morrison asserts that “challenges involving civil committees—because they affect a significant liberty interest—are subject to strict scrutiny.” The Attorney General responds that the appropriate standard is rational basis. The Attorney General relies upon recent appellate decisions that have examined the identical issue and have held that rational basis review applies. (See People v. Magana (2022) 76 Cal.App.5th 310, 324 (Magana); People v. Cannon (2022) 85 Cal.App.5th 786, 797 (Cannon), review granted Feb. 15, 2023, S277995.) This issue is currently pending before the California Supreme Court in Cannon.
We agree with the Attorney General that the appropriate standard of review is rational basis. We acknowledge the accuracy of Morrison‘s assertion that California courts have historically used strict scrutiny in evaluating equal protection challenges based on differences among civil commitment schemes. (See, e.g., In re Smith (2008) 42 Cal.4th 1251, 1263 [“Under California law, ’ “[s]trict scrutiny is the appropriate standard against which to measure [equal protection] claims of disparate treatment in civil commitment. [Citations.]” ’ . . . ‘Because petitioner‘s personal liberty is at stake, the People concede that the applicable
But simply asserting that a classification affects a “liberty” interest proves too much. The California Supreme Court has cautioned against the application of strict scrutiny based solely on the rationale that ” ‘personal liberty is a fundamental interest.’ ” (People v. Williams (2024) 17 Cal.5th 99, 123 (Williams) [quoting People v. Olivas (1976) 17 Cal.3d 236, 251].) The Court has observed that this language “should not be interpreted so broadly as to require strict scrutiny ‘whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes, because such statutes always implicate the right to “personal liberty” of the affected individuals.’ [Citations.] Indeed, we cautioned that ‘[a]pplication of the strict scrutiny standard in this context would be incompatible with the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment.’ ” (Williams, at p. 123.)
The SVPA regime undoubtedly affects liberty. In People v. McKee (2010) 47 Cal.4th 1172 (McKee I) the California Supreme Court applied heightened scrutiny to an equal protection challenge to a change effected by initiative that altered the SVPA commitment term from two years to indefinite detention. Without explicitly labeling the degree of scrutiny applied, the court stated, “When a constitutional right, such as the right to liberty from involuntary confinement, is at stake, the usual judicial deference to legislative findings gives way to an exercise of independent judgment of the facts to ascertain whether the legislative body ‘has drawn reasonable inferences based on substantial evidence.’ ” (Id. at p. 1206.)
The California Supreme Court in McKee I did not itself determine whether the differences between the confinement terms of other civil committees and SVP‘s survived constitutional scrutiny. Instead, our high court remanded the matter “to the trial court to determine whether the People, applying [] equal protection principles . . . can demonstrate the constitutional justification for imposing on SVP‘s a greater burden than is imposed on MDO‘s and NGI‘s in
Although it applied heightened scrutiny to the challenged statutory provisions, the California Supreme Court in McKee I did not hold that all equal protection challenges to civil commitment statutes require strict scrutiny. In responding to the dissenting justices, the majority in McKee I “strongly disagree[d] with the concurring and dissenting opinion‘s characterization of our view as being ‘that every detail of every civil commitment program is subject to strict scrutiny.’ ” (McKee I, supra, 47 Cal.4th at p. 1210, fn. 13.)
Nevertheless, the court rejected the concurring and dissenting opinion‘s implicit characterization of “the change from a short-term commitment, renewable only if the state carries its burden beyond a reasonable doubt, to an indefinite commitment in which the person committed has the burden of proof” as “merely an alteration of a minor detail of the commitment scheme.” (McKee I, supra, 47 Cal.4th at p. 1210, fn. 13.) These major changes in the SVPA scheme—and the concomitant effects on liberty—called for heightened scrutiny.
By contrast, in Barrett, supra, 54 Cal.4th 1081, the California Supreme Court applied rational basis review in rejecting an equal protection challenge to the civil commitment scheme for “mentally retarded person[s]” (
In Barrett, our high court highlighted the deference owed to the legislative branch in crafting the details of involuntary commitment schemes. “[A]n equal protection violation does not occur merely because different statutory procedures have been included in different civil commitment schemes. [Citation] Nothing compels the state ‘to choose between attacking
In deciding what level of scrutiny to apply to equal protection claims involving nuanced details of civil commitment procedures, recent decisions of the Courts of Appeal have followed Barrett and applied rational basis review. (See e.g., People v. Nolasco (2021) 67 Cal.App.5th 209, 226 [examining timing renewals for individuals declared dangerous because of a ” ‘developmental disability’ ” or ” ‘mental disease, defect, or disorder’ “]; Magana, supra, 76 Cal.App.5th at p. 324 [stating with respect to the issue presented in this appeal, “[w]e conclude the rational basis analysis of Barrett is more applicable [than McKee I], even though made in the context of the section 6500 commitment statute, because it involves the analogous situation of the lack of a jury trial advisement and personal waiver under a civil commitment statute“].)
We agree with these decisions’ application of the California Supreme Court precedent. We decide rational basis review applies to Morrison‘s assertion that his equal protection rights were violated by the SVPA‘s failure to require a personal jury trial advisement and waiver.
This conclusion, in turns, brings us to the appropriate disposition of this appeal. Morrison did not raise his equal protection claim in the trial court, which generally would result in forfeiture of the claim on appeal and affirmance of the judgment. However, both parties urge this court not to apply the forfeiture doctrine but instead to remand the matter to the trial court for a hearing. Given that Morrison‘s equal protection claim presents a question that is predominantly one of law—and one the California Supreme Court will soon decide—we accede to the parties’ request and decline to decide Morrison has forfeited his constitutional claim.
Nevertheless, because Morrison did not raise an equal protection challenge to the trial court‘s failure to personally advise and secure a waiver of his jury trial rights, there is no development of the relevant issues for us to review. We agree that the matter must be remanded to the trial court.
We emphasize the limited nature of the inquiry on remand. We have decided that Morrison‘s equal protection challenge is subject to rational basis review. This standard is highly deferential to legislative choices. The burden will be on Morrison—not the People—to show that ” ‘no rational basis for the unequal treatment is reasonably conceivable.’ ” (Hardin, supra, 15 Cal.5th at p. 852; Williams, supra, 17 Cal.5th at p. 130.)