THE PEOPLE, Plaintiff and Respondent, v. JOSE NOLASCO, Defendant and Appellant.
B308627
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 7/29/21
CERTIFIED FOR PUBLICATION
James N. Bianco, Judge.
(Los Angeles County Super. Ct. No. ZM050339-01)
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
* * * * * *
As pertinent here, California has two statutory mechanisms for detaining, evaluating, and treating persons who have been declared incompetent to stand trial for a felony that entailed a threat of bodily harm, and who continue to pose a danger to others. What prompts the use of one mechanism over another is the reason why the person is dangerous: When the reason is a “developmental disability,” the applicable mechanism is civil commitment under
further and further with each recommitment. Does this “creep” of the end date under
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Since his teen years, Jose Nolasco (Nolasco) has had a mild “developmental disability.” In his early 20s, Nolasco developed a mental illness as
On May 5, 2017, Nolasco whipped a belt at police officers who had arrived on scene to detain him for a possible mental health hold and then tried to get away by running into oncoming traffic. The People charged Nolasco with resisting an executive officer as a felony (
The criminal charges were suspended once the trial court referred Nolasco to mental health court to evaluate his competency to stand trial. The mental health court found him incompetent to stand trial.
After two years, Nolsaco had not regained his competency to stand trial, and the criminal court‘s jurisdiction was terminated.
II. Procedural Background
A. Initial commitment under section 6500
On June 6, 2019, the People petitioned the mental health court to commit Nolasco under
In support of its petition, the People produced expert testimony regarding Nolasco‘s mental illness and his developmental disability, along with expert opinion that his developmental disability exacerbated his mental illness by depriving him of “the coping skills” necessary to manage his mental illness. The People also introduced evidence of Nolasco‘s juvenile adjudications for assault with a deadly weapon and battery as well as his prior arrests for animal cruelty and domestic battery.
Following an evidentiary hearing on August 20, 2019, the mental health court found Nolasco to be an “intellectually or developmentally disabled person who is a danger to [him]self and/or others,” found that his disability was a “substantial factor in causing serious difficulty in controlling [his] dangerous behavior,” and found that there was “no alternative to judicial commitment.” The court then committed defendant to the custody of the State for one year.
B. Recommitment proceedings
On August 14, 2020, the People petitioned the mental health court to recommit Nolasco for an additional year.
At the end of the hearing, the mental health court found that Nolasco continued to pose a danger to others and ordered him recommitted to the “least restrictive placement” for one year starting on October 13, 2020, and ending on October 13, 2021.
C. Appeal
Nolasco filed this timely appeal.
DISCUSSION
Nolasco argues that the mental health court‘s recommitment order under
Nevertheless, we exercise our discretion to address Nolasco‘s challenge because it presents an important question of public concern. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; People v. Superior Court (1988) 200 Cal.App.3d 491, 497 (Clements).)
I. Pertinent Law on Involuntary Commitment
California has several mechanisms for the involuntary commitment of individuals deemed to present a danger to themselves or others. Several of these mechanisms apply to individuals who suffer from mental illness and who have been previously convicted of crimes, such as individuals who qualify as mentally disordered offenders (
A. Section 6500 commitments
An individual may be civilly committed under
For this purpose, a developmental disability is a “disability that originates before an individual attains 18 years of age, continues, or can be expected to continue indefinitely, and constitutes a substantial disability for that individual.” (
When an individual is initially committed under
Murphy conservatorships are just one of the many types of civil commitments authorized by the LPS Act for persons who are “dangerous or gravely disabled” by virtue of mental illness.4 (
An individual may be placed in a Murphy conservatorship only if the People prove that (1) he suffers from a “mental disease, defect, or disorder,” (2) he has been “found mentally incompetent” during a prosecution for “a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person” after “[t]here has been a finding of probable cause” regarding that felony, and (3) his “mental disease, defect, or disorder” is why he “represents a substantial danger of physical harm to others.” (
The LPS Act does not define what it means by “mental disease, defect, or disorder,” but “[c]ourts applying the LPS Act and similar commitment schemes have sought to fill this gap” by defining “mental illness and related disorders” as “conditions that may arise suddenly and, for the first time, in adulthood.” (People v. Barrett (2012) 54 Cal.4th 1081, 1108 (Barrett).) The term excludes “persons with intellectual disabilities” (that is, persons who are developmentally disabled) unless these persons also suffer from mental illness. (
When an individual is initially committed under a Murphy conservatorship, the conservatorship “shall automatically terminate one year after” the order “appoint[ing] . . . the conservator” is made. (
the conservatorship “for a succeeding one-year period,” which means the recommitment terminates on the anniversary of the order of initial commitment. (Id.; accord, Conservatorship of Jose B. (2020) 50 Cal.App.5th 963, 968-969 [applying these dates].)
A. Equal protection principles
Both the federal and California Constitutions guarantee that no person shall be “den[ied] . . . the equal protection of the laws.” (
The first, threshold step is to determine whether there are two groups of individuals who are “‘“‘similarly situated with respect to the legitimate purpose of the law“‘“’ but are being treated differently. (Barrett, supra, 54 Cal.4th at p. 1107, quoting In re Gary W. (1971) 5 Cal.3d 296, 303.) “If the two groups are not similarly situated or are not being treated differently, then there can be no equal protection violation.” (People v. Castel (2017) 12 Cal.App.5th 1321, 1326.)
However, if the first step is satisfied, the second step is to ascertain whether the Legislature has a constitutionally sufficient justification for the differential treatment of the similarly situated groups. (In re Marriage Cases (2008) 43 Cal.4th 757, 831-832.) What constitutes sufficient justification varies. “If the law treats people differently on the basis of their membership in certain ‘suspect class[es]’ (such as their race) or if the differential treatment ‘affect[s] a fundamental right,’ then the government must satisfy [so-called] [‘]strict[] scrutiny[‘] by demonstrating that the differential treatment . . . is necessary to serve a compelling interest.” (People v. Love (2020) 55 Cal.App.5th 273, 287, review granted Dec. 16, 2020, S265445, quoting People v. Chatman (2018) 4 Cal.5th 277, 288.)5 Otherwise, the challenger must show that the 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.“’ (People v. Turnage (2012) 55 Cal.4th 62, 74.) Rational basis scrutiny is “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,“’
B. Application
Because there can be no dispute
and if so, (2) is there a sufficient justification for this differential treatment?
1. Similarly situated?
To be similarly situated, the groups that the Legislature treats differently need not—and, indeed, cannot—be “identical.” (People v. McKee (2010) 47 Cal.4th 1172, 1202 (McKee), superseded on other grounds by
Because a person is eligible for commitment under both
As our Supreme Court has repeatedly held, “[m]ental illness and related disorders are . . . conditions that may arise suddenly and, for the first time, in adulthood.” (Barrett, supra, 54 Cal.4th at p. 1108.) Many forms of mental illness are treatable, such that “need for treatment may be temporary,” and the mental illness itself may be “intermittent or short lived.” (Id.) ‘“[M]ental illness [also] “often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently . . . many mentally ill persons retain the capacity to function in a competent manner.““’ (In re Qawi (2004) 32 Cal.4th 1, 17; accord, People v. Blackburn (2015) 61 Cal.4th 1113, 1128 (Blackburn).) Developmental disabilities, by contrast and by definition, “appear early in life,” “never recede,” and involve one or more deficiencies in “cognitive and intellectual functioning” that “affect [one‘s] ability to ‘make the basic decisions‘” regarding legal proceedings and other matters. (Barrett, at pp. 1103, 1109; Blackburn, at p. 1128.) (Accord, Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 487 [“The developmental disability that may result in mental incompetence is different from the mental disorder that may also have that result.“].)
But do these differences between developmental disabilities and mental illness justify treating them differently when it comes to the procedures by which persons suffering from them are civilly committed? It depends.
Our Supreme Court has “assumed” that persons with mental illness and persons with developmental disabilities are similarly situated when it comes to the right to a jury determination of whether the People have proven the prerequisites for commitment. (Barrett, supra, 54 Cal.4th at p. 1108; accord, People v. Sweeney (2009) 175 Cal.App.4th 210, 216-221 [rejecting equal protection challenge only after concluding that both groups have a right to a jury determination of the prerequisites].) Ostensibly, this is because the differences in the type of mental ailment are irrelevant as to whether commitment should be found by a judge or a jury.
However, our Supreme Court has held that persons with mental illness and persons with developmental disabilities are not similarly situated when it
But do the differences between developmental disabilities and mental illness justify treating them differently when it comes to the timetable for terminating a one-year period for a recommitment? In our view, yes.
By definition, mental illness is more fleeting. As noted above, it comes on in adulthood; it can be “intermittent” and “short lived“; and it is often treatable. (Barrett, supra, 54 Cal.4th at p. 1108.) Because an individual‘s mental illness can come and go, there is a greater danger that delay in evaluating his condition—and delay in his release arising from the time it takes to litigate recommitment—could result in the unnecessary commitment of a person who no longer suffers from a mental illness that poses a danger. Put differently, with mental illness, it makes sense to fix a termination date for recommitment sooner rather than later. By contrast, developmental disabilities are not fleeting. By definition, they come on during childhood or adolescence and they “never recede.” (Barrett, at pp. 1103, 1109 Nolasco‘s sole response is to assert that he is both mentally ill and developmentally disabled and that “almost everyone” has a similar dual diagnosis, such that the different end dates for period of recommitment under section 6500 and a Murphy conservatorship empower the People to arbitrarily elect which mechanism to use. This response lacks merit both factually and legally. Factually, Nolasco offers no evidence to support his broad generalization that “almost everyone” who suffers from mental illness also suffers from a developmental disability and vice versa; the existence of two different mechanisms to address civil commitment for each tends to refute the notion that a Venn diagram of the populations of the mentally ill and the developmentally disabled would be mostly overlapping and shaded. Furthermore, if Nolasco is indeed a member of both classes, persons who suffer from a dual diagnosis are likely to be more dangerous than persons who suffer from mental illness alone because, as the expert in this case testified, persons who also have developmental disabilities lack “the coping skills necessary to manage [their] mental illness.” Thus, persons with such a dual diagnosis will likely need more time to address their mental illness than those who suffer from mental illness alone, which justifies a less strict end date for recommitment. Legally, the gist of Nolasco‘s argument—namely, that there is an equal protection violation merely because the government is allowed to choose between two statutes when it prosecutes and thereby commits a person to the State‘s custody—has been rejected by both the United States Supreme Court and our Supreme Court. (United States v. Batchelder (1979) 442 U.S. 114, 124-125; People v. Wilkinson (2004) 33 Cal.4th 821, 838.) 2. Sufficient justification? Even if we assume that persons civilly committed under section 6500 and in a Murphy conservatorship are similarly situated for purposes of the timetable for terminating a one-year period for a recommitment, we must next ask whether there is a sufficient justification for that differential treatment. a. What level of justification is needed? Because our Legislature “may adopt more than one procedure for isolating, treating, and restraining dangerous persons” and the “differences will be upheld if justified” (McKee, supra, 47 Cal.4th at p. 1209; Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171-172 (Hofferber)), it is critical to know the degree of justification needed to uphold the different procedures. Unfortunately, the law in this area appears to be in a state of flux. Traditionally, the California courts have applied strict scrutiny to “claims of disparate treatment in civil commitment.” (Smith, supra, 42 Cal.4th at p. 1263; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20; Hofferber, supra, 28 Cal.3d at p. 171, fn. 8; In re Moye (1978) 22 Cal.3d 457, 465, superseded on other grounds by Penal Code section 1026.5 as stated in People v. Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 663.) Under this line of precedent, strict scrutiny is deemed appropriate because the committed person‘s “fundamental liberty interest is at stake.” (Hofferber, at p. 171, fn. 8; Smith, at p. 1263.) More recently, McKee applied what purported to be a form of “heightened scrutiny” that appears to be less rigorous than strict scrutiny but more onerous than rational basis scrutiny. (McKee, supra, 47 Cal.4th at pp. 1206-1207, 1210-1211 & fns. 13 & 14.) McKee explained that it was not applying the “usual judicial deference to legislative findings” consonant with rational basis scrutiny (id. at p. 1206), while simultaneously insisting that it was also not applying strict scrutiny (id. at p. 1210, fn. 13). Instead, McKee appears to have applied something in between by “exercis[ing its own] independent judgment of the facts to ascertain whether the legislative body ‘“has drawn reasonable inferences based on substantial evidence.“’ [Citation.]” (Id. at p. 1206.) Most recently, Barrett applied rational basis scrutiny when evaluating whether equal protection required persons in commitment proceedings under section 6500 and Murphy conservatorships both to be personally informed and to personally waive the right to a jury trial. (Barrett, supra, 54 Cal.4th at p. 1111, fn. 21.) Because the more recent decisions in McKee and Barrett do not expressly overrule—or, for that matter, address—the older cases applying strict scrutiny, the coexistence of the three lines of cases has created confusion in the Court of Appeal. (Compare Dunley, supra, 247 Cal.App.4th at pp. 1451-1452 [citing cases following traditional rule and applying strict scrutiny]; People v. Field (2016) 1 Cal.App.5th 174, 195-196 [same]; Conservatorship of J.Y., supra, 49 Cal.App.5th at p. 232 [same] with People v. Rosalinda C. (2014) 224 Cal.App.4th 1, 13-14 [citing Barrett and applying rational basis scrutiny]; Landau v. Superior Court (2019) 32 Cal.App.5th 1072, 1085 [applying rational basis scrutiny].) Here, we choose to follow Barrett—and hence to apply rational basis scrutiny—because Barrett is the most recent pronouncement by our Supreme Court as to the pertinent level of scrutiny to apply when comparing divergent civil commitment procedures. (See Samara v. Matar (2018) 5 Cal.5th 322, 332 [following “[t]he weight of more recent authority“].) Furthermore, Barrett is the authority most on point to this case. (Compare Barrett, supra, 54 Cal.4th at 1106-1107 [analyzing section 6500 compared with LPS Act] with McKee, supra, 47 Cal.4th at 1196-1198 [analyzing Sexually Violent Predator Act compared with Mentally Disordered Sex Offender Act, not guilty by reason of insanity committees, and LPS Act].) b. Has that justification been met? The differential treatment between the end date for the period of recommitment under section 6500 and under a Murphy conservatorship withstands rational basis scrutiny. As explained above, time is more of the essence for persons who suffer from mental illness alone given the transitory nature of such illness; thus, our Legislature with regard to Murphy conservatorships rationally tied the end date for recommitment to the anniversary of the initial date of commitment for persons suffering from mental illness alone, but did not do so for persons suffering from developmental disabilities under section 6500. The Legislature‘s recognition of the difference between these two populations is legitimate and is rationally related to its selection of different end dates for periods of recommitment. (Turnage, supra, 55 Cal.4th at p. 74.) Nolasco‘s chief response is to urge that Barrett is wrongly decided and to implore us to follow the traditional rule applying strict scrutiny. Of course, it is not our place to overrule Barrett (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 456), and we have elected to follow Barrett because of its recency and subject matter relevancy. DISPOSITION The order is affirmed. CERTIFIED FOR PUBLICATION. ______________________, J. HOFFSTADT We concur: _________________________, P. J. LUI _________________________, J. CHAVEZ