People v. Colvin

• Decision Date: 14 January 1981
• Docket Number: Cr. 4042
• Citation: 171 Cal.Rptr. 32,114 Cal.App.3d 614
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rickey Lee COLVIN, Defendant and Appellant.

Page 32

171 Cal.Rptr. 32

114 Cal.App.3d 614

The PEOPLE, Plaintiff and Respondent, v. Rickey Lee COLVIN, Defendant and Appellant.

Cr. 4042.

Court of Appeal, Fifth District, California.

Jan. 14, 1981.

As Modified on Denial of Rehearing Feb. 10, 1981.

Modification On Denial of Rehearing Feb. 10, 1981.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Sacramento, Ezra Hendon, Chief Asst. State Public Defender, Michael Arkelian, Thomas F. Lundy and Julia Cline Newcomb, Deputy State Public Defenders, Sacramento, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Thomas D. McCrackin, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

LAURITZEN, ^* Associate Justice.

On June 7, 1978, in the Kern County Superior Court, a jury found appellant guilty of two counts of violation of Penal Code section 288. The victim in one account was a five-year-old boy. The victim in the other count was the boy's four-year-old sister. The matter was referred to the probation officer for report and recommendation. Hearing on the report and arraignment for judgment was set for July 5, 1978. On that date, the court adjourned the criminal proceedings and certified appellant to the superior court for mentally-disordered-sex-offender ¹ proceedings pursuant to the mandatory provisions of Welfare and Institutions Code section 6302, subdivision (c). ² The court, after handing appellant the written certification, appointed two doctors to examine him and report to the court as to whether or not he was an MDSO and, if so, whether he could or could not benefit from treatment. The court did not at that time orally inform appellant that he was certified to be an MDSO, or of his rights to reply or produce witnesses, as directed by section 6305, or of his right to cross-examine adverse witnesses. A further hearing was held on July 26, 1978, at which time the issue, by stipulation of counsel, was submitted upon the written reports of the doctors. The court found that appellant was an MDSO who could benefit from treatment in a state hospital and, as recommended by the mental health director, committed him to the Atascadero State Hospital for care and treatment, maximum time of commitment not to exceed five years. Thereafter, the commitment was amended specifying "a total fixed time of six years, four months." Appellant was never informed by the court of his right to a jury trial upon demand made within 15 days after date of commitment. ³ Appellant filed a timely notice of appeal.

Appellant attacks the MDSO commitment only; therefore, the facts of the underlying crimes will not be discussed. We now address the explicit and implicit issues presented to us on this appeal.

I WAS APPELLANT PREJUDICED BY THE COURT'S FAILURE TO ADVISE HIM OF HIS RIGHT TO A JURY TRIAL?

Appellant initially contends that the superior court erred in failing to inform him of his right to demand a jury trial following the entry of a commitment order. (§ 6318.) Specifically, it is advanced that (a) equal protection and (b) due process concerns arise unless the court was so required to inform appellant. Respondent counters that appellant is not entitled to a jury trial in the absence of a timely request under the relevant statutory provision. Appellant's contentions have merit.

The pertinent provision is section 6318, which provides in part as follows:

"If a person ordered under Section 6316 to be committed as a mentally disordered sex offender to the department for placement in a state hospital for care and treatment or to the county mental health director for placement in an appropriate facility, or any friend in his behalf, is dissatisfied with the order of the judge so committing him, he may, within 15 days after the making of such order, demand that the question of his being a mentally disordered sex offender be tried by a judge or by a jury in the superior court of the county in which he was committed."

We now address appellant's equal protection and due process arguments.

(A) Equal protection contention.

Relying upon People v. Feagley (1975) 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373 and its comparative analysis of protections provided to mentally disordered individuals under the Lanterman-Petris-Short Act, ⁴ appellant argues that the lower court's failure to advise him of his right to a jury trial under section 6318 offends the equal protection clauses of the California and Federal Constitutions. (Cal.Const., art. I, § 7, subd. (a); U.S.Const., Fourteenth Amend.) Before examining the merits of this contention, we briefly review the applicable legal principles underlying equal protection analysis.

The first prerequisite to a meritorious equal protection claim is a showing that the state has adopted a classification which affects two or more similarly situated groups in an unequal manner. (See In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549; People v. Lakey (1980) 102 Cal.App.3d 962, 974, 162 Cal.Rptr. 653.) Once such a disparity is proven, the state must show that a rational distinction exists between those included in and those excluded from the class. (In re Gary W. (1971) 5 Cal.3d 296, 303, 96 Cal.Rptr. 1, 486 P.2d 1201.) Closer scrutiny is given to a statute which affects a fundamental interest or involves a suspect class. In such instances, the state bears the burden of establishing both that it has a compelling interest in making such a distinction and that the distinction necessarily furthers that purpose. (People v. Feagley, supra, 14 Cal.3d 338, 356, 121 Cal.Rptr. 509, 535 P.2d 373; In re Gary W., supra, 5 Cal.3d at p. 306, 96 Cal.Rptr. 1, 486 P.2d 1201.) With these principles in mind, we now address the equal protection issue raised by appellant.

In People v. Feagley, supra, 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373, the court examined the question of whether the state could constitutionally deny to persons committed under the MDSO scheme the right to a unanimous jury verdict, which was granted to persons committed under the LPS Act. (Id., at p. 352, 121 Cal.Rptr. 509, 535 P.2d 373.) Initially, the court noted that an MDSO and an individual committed under the LPS Act are in similar positions. It stated, "We have likewise recognized in California that although it might not be true of all persons, 'Many individuals who satisfy the definition of "mentally disordered sex offender" would be subject to civil commitment to a mental institution under other provisions of the law,' citing, inter alia, the LPS Act. (Citation.)" (Feagley, supra, 14 Cal.3d at p. 353, 121 Cal.Rptr. 509, 535 P.2d 373.) Next, the court acknowledged that the section 6318 jury trial was similar to the postcertification jury proceeding in the LPS Act:

"Nor is it relevant that Feagley had already been adjudged a mentally disordered sex offender at the initial commitment hearing. (Citation.) At that stage of the proceedings Feagley had no statutory right to a jury trial of any kind. (See §§ 6302-6316.) The trial here in issue was therefore his first and only opportunity to present to a jury the evidence supporting his assertion that he was not a mentally disordered sex offender .... The proceeding, in sum, was a full-scale trial de novo of the question whether Feagley was a mentally disordered sex offender. It was therefore indistinguishable in its effect and importance from the trial provided by section 5303, in which an individual proceeded against under the LPS Act also seeks for the first time to persuade a jury that he is not a mentally disordered person. Accordingly, there is no rational basis for granting the latter the right to a unanimous verdict while denying it to the former." (People v. Feagley, supra, 14 Cal.3d at pp. 356-357, 121 Cal.Rptr. 509, 535 P.2d 373, emphasis added, fn. omitted.)

Finally, the court held that, under either rational basis or close scrutiny analysis, the denial of the unanimous jury to MDSOs contravened equal protection principles. (Feagley, supra, at p. 358, 121 Cal.Rptr. 509, 535 P.2d 373.)

In contrast to section 6318, it should be noted that the LPS schema does contain a provision mandating the court to inform an alleged mentally disordered person of his right to demand a jury. Section 5302 provides in relevant part: "(P) At the time of filing a petition for postcertification treatment the court shall advise the person named in the petition of his right to be represented by an attorney and of his right to demand a jury trial." (Emphasis added.)

Using the comparative analysis of Feagley, it is clear that appellant's equal protection contention has merit. Feagley recognized that alleged MDSOs and mentally disordered individuals under the LPS Act were similarly situated as to status and as to the effect of the jury trial after initial commitment procedures. ⁵ The state has not demonstrated any rational distinction between the two classes; thus, the reasoning in Feagley requires a finding that appellant was denied equal protection under the California and Federal Constitutions. Pursuant to section 6318, the superior court has an obligation to inform appellant of his right to demand a jury trial.

Furthermore, our Supreme Court has held that the right to a jury trial in civil commitment proceedings is a fundamental right. (See People v. Feagley, supra, 14 Cal.3d at p. 356, 121 Cal.Rptr. 509, 535 P.2d 373; People v. Burnick (1975) 14 Cal.3d 306, 317-318, 324, 121 Cal.Rptr. 488, 535 P.2d 352; discussion, infra, issue I-B; cf. In re Gary W., supra, 5 Cal.3d at pp. 306-307, 96 Cal.Rptr. 1, 486 P.2d 1201.) Since no compelling interest, much less a rational basis for differentiation can be demonstrated by the state, there was a denial of equal protection in the instant case.

Accordingly, the commitment order must be annulled and the cause returned to the...