Filed 6/10/16; opinion on rehearing

                         CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                      DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                     E062656

v.                                                    (Super.Ct.No. FELSS1402746)

EDDIE DUNLEY,                                         OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Lorenzo R.

Balderrama, Judge. Dismissed.

        Michele Anne Cella, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi,

Deputy Attorneys General, for Plaintiff and Respondent.


        *  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part 3 of the Legal Analysis.



                                             1
         The Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.)1 provides for

involuntary civil commitment as a condition of parole for prisoners who are found to

have “a severe mental disorder” if certain conditions are met. (§ 2962, subds. (a)-(f).)2

The commitment is for a term of one year and may be extended annually for an additional

year on petition of the district attorney. (§ 2972, subds. (a), (b).)

         Appellant Eddie Dunley appeals from a judgment extending his commitment as a

mentally disordered offender (MDO). He contends that because persons subject to civil

commitment after being found not guilty by reason of insanity (NGI) have a statutory

right, pursuant to section 1026.5, subdivision (b)(7) (hereafter section 1026.5(b)(7)), not

to be compelled to testify in proceedings to extend their commitments (Hudec v. Superior

Court (2015) 60 Cal.4th 815, 832), so should a person facing commitment as an MDO.

He points out that this right has been extended to commitment proceedings for sexually



         1   All further statutory citations refer to the Penal Code unless another code is
cited.

         2The conditions include the following: That the prisoner has a severe mental
disorder, that the disorder is not in remission or cannot be kept in remission without
treatment, that the severe mental disorder was one of the causes or was an aggravating
factor in the prisoner’s criminal behavior, that the prisoner has been in treatment for the
severe mental disorder for 90 days or more within the year prior to his or her parole
release day, and that by reason of his or her severe mental disorder, the prisoner
represents a substantial danger of physical harm to others. (§ 2962, subd. (d)(1).) The
act applies only to prisoners who have been convicted of specified offenses. (§ 2962,
subd. (e).)




                                                 2
violent predators (SVP)3 by application of equal protection principles. (People v. Curlee

(2015) 237 Cal.App.4th 709, 716-722.) He contends that NGI’s, SVP’s and MDO’s are

all similarly situated with respect to civil commitment procedures.

       We hold that MDO’s, SVP’s and NGI’s are all similarly situated with respect to

the testimonial privilege provided for in section 1026.5(b)(7). However, as we will

discuss, this appeal is moot because a subsequent petition for recommitment was denied

by the trial court on or about March 7, 2016, based on the court’s finding that appellant

no longer met the criteria for commitment as an MDO. Accordingly, although we will

decide the threshold issue, which is purely a legal question and will surely reoccur in

MDO proceedings in light of People v. Curlee, supra, 237 Cal.App.4th 709, we will

dismiss the appeal as moot.4 (People v. Cheek (2001) 25 Cal.4th 894, 897-898; People v.

Gregerson (2011) 202 Cal.App.4th 306, 321.)

                               PROCEDURAL HISTORY

       On June 9, 2014, the San Bernardino County District Attorney filed a petition

pursuant to section 2972 to extend appellant’s involuntary commitment as an MDO.

       On December 17, 2014, a jury found that appellant met the criteria for

commitment as an MDO. Accordingly, the court granted the petition and extended



       3 See the Sexually Violent Predators Act. (Welf. & Inst. Code, § 6600 et seq.)
       4 We will also address appellant’s claim of instructional error because it appears
to involve the impermissible shifting of the burden of proof to appellant.



                                             3
appellant’s commitment until January 20, 2016. Appellant filed a timely notice of

appeal.

                                              FACTS

       While serving a prison term for robbery, appellant had several incidents of battery

on correctional officers. A mental health evaluation was done after each incident. Both

evaluations reported that appellant was disorganized and confused. One evaluation

concluded that appellant showed severely impaired judgment. The other concluded that

he showed psychosis. In 2008, he was committed to Atascadero State Hospital as an

MDO. He had previously been admitted to Atascadero in 2001.

       Dr. Joe Debruin, a forensic psychologist at Atascadero, evaluated appellant to

determine whether he met the criteria for recommitment as an MDO.5 Dr. Debruin

reviewed appellant’s treatment plan, interdisciplinary and psychiatric progress notes,

previous MDO evaluation reports, and the police report concerning his prior offense. He

also interviewed appellant.

       Dr. Debruin diagnosed appellant with schizoaffective disorder, bipolar type,

which, he testified, is a severe mental disorder that persists over a period of time. He

testified that appellant had consistently exhibited symptoms of schizoaffective disorder

       5  “If the court or jury finds that the patient has a severe mental disorder, that the
patient’s severe mental disorder is not in remission or cannot be kept in remission without
treatment, and that by reason of his or her severe mental disorder, the patient represents a
substantial danger of physical harm to others, the court shall order the patient
recommitted . . . .” (§ 2972, subd. (c).)



                                             4
since he was committed to Atascadero in 2008. Appellant displayed a belief that he was

God or “God’s son in the flesh,” and reported hallucinations and hearing voices, which

sometimes commanded him to be aggressive. He had manic episodes during which he

spoke in a rapid, disorganized and incoherent manner. He had mood control difficulties

and would fluctuate from being very agitated to being depressed. He had paranoid

episodes in which he thought people were “messing with his body organs” and that

hospital staff were “telling lies and being corrupt.” These symptoms continued to occur

in the months preceding the hearing. During his current confinement at Atascadero,

appellant had 60 violent episodes. The most recent was in December 2013, when

appellant repeatedly punched a fellow patient.

       Dr. Debruin testified that appellant lacked insight into his condition, i.e., that he

did not believe he was mentally ill or that he needed medication. Appellant did not

follow his treatment plan or participate in groups, and he was often unwilling to take his

medication. Dr. Debruin opined that if appellant were released into the community, he

would not take his medication and that his symptoms would escalate as a result.

       Based on appellant’s prior offenses, violent behavior, delusional statements and

lack of insight into his illness, Dr. Debruin opined that appellant’s mental disorder was

not in remission and, as a result of the disorder, he posed a substantial danger for violence

if he were released into the community.

       Dr. Martin Steed, appellant’s treating psychiatrist for the year and a half preceding

the hearing, testified to the same effect. He diagnosed appellant with schizoaffective

                                              5
disorder, bipolar type, which he characterized as a severe mental disorder. He testified

that appellant displayed “extensive irritable mood, grandiosity, increase in self-esteem, in

risky behaviors, as well as hyperreligiosity and hypersexuality.” He noted that as

recently as two weeks before coming to San Bernardino for the hearing, appellant

“thought he was God, as he usually does.” He testified that appellant’s condition was not

in remission and that he had no doubt that appellant would stop taking his medications as

soon as he was released and that he would pose a danger to the public. Although he

acknowledged that appellant’s violent behavior had decreased since he had been placed

on lithium, he was still symptomatic. Dr. Steed concluded that appellant posed a

substantial danger to others as a result of his mental disorder.

       The prosecution called appellant to testify. Much of his testimony was confused

or nonresponsive, but he ultimately admitted that he had a mental disorder and that his

disorder made him dangerous.

                                    LEGAL ANALYSIS

                                              1.

                                 THE APPEAL IS MOOT

       A case becomes moot when a court ruling can have no practical effect or cannot

provide the parties with effective relief. (People v. Gregerson, supra, 202 Cal.App.4th at

p. 321.) By the nature of MDO proceedings, in which a new commitment order must be

sought every year, issues arising in such proceedings can most often not be decided on

appeal quickly enough to provide any relief to the person committed. That is the case

                                              6
here. Appellant’s current commitment order expired on January 20, 2016, while this

appeal was pending. A new petition for recommitment was filed on June 22, 2015, and

was denied on March 7, 2016, based on the trial court’s finding that appellant no longer

meets the criteria for commitment as an MDO.6 A reversal of appellant’s current

commitment order would have no effect on the pending petition. However, it is

appropriate to address the issues raised in this appeal because they are important legal

issues that are likely to reoccur “‘while evading appellate review . . . .’ [Citation.]”

(People v. Gregerson, at p. 321.) Accordingly, we have chosen to address these issues,

but we will dismiss the appeal as moot. (Ibid.)

                                              2.

                                  EQUAL PROTECTION

       Background.

       Under both the United States and California Constitutions, a person has the right

to refuse to answer potentially incriminating questions put to him or her in any

proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse

to testify at all. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) Commitment

proceedings involving NGI’s, SVP’s and MDO’s are all civil in nature. (Hudec v.


       6   We take judicial notice of the pending petition in People v. Dunley, filed June
22, 2015, in the Superior Court of San Bernardino County, case No. FELJS1502150.
(Evid. Code, § 452, subd. (d).) By separate order, we have also taken judicial notice of
the trial court’s minutes dated March 7, 2016, denying the petition.



                                              7
Superior Court, supra, 60 Cal.4th at p. 819 (Hudec) [NGI]; People v. Leonard (2000)

78 Cal.App.4th 776, 789-793 [SVP]; People v. Montoya (2001) 86 Cal.App.4th 825, 830

[MDO], overruled on another point in People v. Blackburn (2015) 61 Cal.4th 1113, 1131;

§ 2972, subd. (a) [MDO commitment hearing is a civil hearing].) Accordingly, none of

the three groups has a right emanating from the Fifth Amendment or article I, section 15

of the California Constitution to refuse to testify in commitment proceedings. (See

Hudec, at p. 819 & fn. 2.)7

       In Hudec, supra, 60 Cal.4th 815, the California Supreme Court resolved a split of

authority as to whether NGI’s have a statutory right not to be compelled to testify. The

court held that section 1026.5(b)(7), which incorporates into an NGI commitment

extension proceeding “‘the rights guaranteed under the federal and State Constitutions for

criminal proceedings,’” provides that a defendant may not be compelled to testify in NGI

commitment proceedings. (Hudec, at pp. 819-832.)

       In People v. Curlee, supra, 237 Cal.App.4th 709 (Curlee), the court concluded that

SVP’s and NGI’s are similarly situated “for purposes of whether they may be compelled

to testify at their commitment hearings.” (Curlee, at pp. 720-721.) Accordingly, it held,

unless the People can justify disparate treatment, equal protection principles mandate that

the statutory right not to testify in a commitment proceeding provided for in


       7 As in Hudec, supra, 60 Cal.4th 815, appellant does not contend that he has such
a right. He relies entirely on section 1026.5(b)(7) and equal protection principles.



                                             8
section 1026.5(b)(7) applies to SVP’s as well as to NGI’s. It remanded the matter for

an evidentiary hearing for the purpose of allowing the People to show that differential

treatment of NGI’s and SVP’s is justified. (Curlee, at pp. 721-723.) Relying in part on

Curlee, appellant contends that MDO’s are similarly situated with respect to NGI’s and

SVP’s for the purpose of the testimonial privilege.8

       The Claim is Not Forfeited.

       We first address the Attorney General’s contention that review of the issue is

forfeited because at the hearing, appellant did not assert a right not to testify. We

acknowledge that an equal protection claim may be forfeited if it is raised for the first

time on appeal. (Curlee, supra, 237 Cal.App.4th at p. 714.) However, we will exercise

our discretion to address the issue because at the time of the hearing, in December 2014,

published authority from this court held that section 1026.5(b)(7) does not confer a

testimonial privilege on NGI’s and, therefore, also rejected a contention that equal

protection mandates extension of that right to MDO’s. (People v. Lopez (2006) 137

Cal.App.4th 1099, 1106-1116, disapproved in part in Hudec, supra, 60 Cal.4th at p. 832,

fn. 5.) Other appellate courts had held that NGI’s do have a statutory right to refuse to

testify and, in January 2015, one month after appellant’s hearing, the California Supreme

       8 Curlee, supra, 237 Cal.App.4th 709, was decided in May 2015, very shortly
after appellant filed his opening brief in this case. The Attorney General, whose brief
was filed six months later, in November 2015, does not address Curlee. Appellant
discussed Curlee in his reply brief. The Attorney General has not sought to provide
supplemental briefing concerning the effect of Curlee on this case.



                                              9
Court resolved the issue as described above. (Hudec, at pp. 822-825.) However, in

December 2014, it would not have been unreasonable to assume that an objection would

have been futile, based on People v. Lopez. We do not require parties to make futile

objections. (Curlee, at p. 715.) Moreover, the threshold equal protection issue we decide

in this appeal is a question of law and does not require resolution of disputed factual

issues. Such an issue can be raised for the first time on appeal. (Cedars-Sinai Medical

Center v. Superior Court (1998) 18 Cal.4th 1, 6.)

       MDO’s, SVP’s and NGI’s are Similarly Situated for Purposes of the Testimonial

Privilege Under Section 1026.5(b)(7).

       “‘“The first prerequisite to a meritorious claim under the equal protection clause

is a showing that the state has adopted a classification that affects two or more similarly

situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether

persons are similarly situated for all purposes, but “whether they are similarly situated for

purposes of the law challenged.”’ [Citation.] In other words, we ask at the threshold

whether two classes that are different in some respects are sufficiently similar with

respect to the laws in question to require the government to justify its differential

treatment of these classes under those laws.” (People v. McKee (2010) 47 Cal.4th 1172,

1202 (McKee).)

       In contexts other than the testimonial privilege, NGI’s, SVP’s and MDO’s have

been found similarly situated for purposes of the application of the three commitment

schemes, thus requiring justification for any differential treatment. In McKee, supra, 47

                                             10
Cal.4th 1172, the court addressed the contention that the SVP scheme then in effect,

which imposed indefinite commitments and required SVP’s to bear the burden of proving

at periodic review hearings that they should be released, violated equal protection

because it placed a greater burden on SVP’s than on MDO’s. Under the MDO

commitment scheme, the state bears the burden of proving beyond a reasonable doubt

that the person should be recommitted for another year. (McKee, at pp. 1183-1184,

1202.)

         After noting the “incontrovertible point that SVP’s and MDO’s do not share

identical characteristics,” the McKee court held: “We conclude that MDO’s and SVP’s

are similarly situated for our present purposes. As was stated in In re Calhoun (2004)

121 Cal.App.4th 1315 [18 Cal.Rptr.3d 315], in which the court struck down a policy that

granted to SVP’s a more restricted right to refuse antipsychotic medication than MDO’s,

both MDO’s and SVP’s ‘have been found, beyond a reasonable doubt, to suffer from

mental disorders that render them dangerous to others. The dangerous finding requires

only an assessment of future dangerousness. It does not require proof of a recent overt

act. Both have been convicted of a serious or violent felony. At the end of their prison

terms, both have been civilly committed to the Department of Mental Health[9] for

treatment of their disorders. Furthermore, the purpose of the MDO Act and the SVPA is


         9Now the State Department of State Hospitals. (Curlee, supra, 237 Cal.App.4th
at p. 712, fn. 2.)



                                            11
the same: to protect the public from dangerous felony offenders with mental disorders

and to provide mental health treatment for their disorders.’ ([Calhoun,] at pp. 1351-1352,

accord People v. Buffington (1999) 74 Cal.App.4th 1149, 1156 [88 Cal.Rptr.2d 696]

(Buffington) [concluding that SVP’s and MDO’s are similarly situated because ‘they are

currently suffering from a mental disorder that renders them dangerous’]; People v.

Gibson (1988) 204 Cal.App.3d 1425, 1436 [252 Cal.Rptr. 56] [an MDO is similarly

situated to other adult persons involuntarily committed because ‘[o]ne purpose of all of

these pertinent involuntary commitment schemes is the protection of the public from the

dangerous mentally ill and their involuntary commitment for treatment’].) We agree that

these common features make SVP’s and MDO’s similarly situated. Therefore, when the

state makes the terms of commitment or recommitment substantially less favorable for

one group than the other, the case law reviewed above teaches that it is required to give

some justification for this differential treatment.” (McKee, supra, 47 Cal.4th at p. 1203,

italics added.)

       The McKee court went on to hold that NGI’s and SVP’s are also similarly situated

for purposes of the civil commitment schemes. The court stated: “McKee argues that

NGI’s and SVP’s are also similarly situated and that a comparison of the two

commitment regimes raises similar equal protection problems as discussed above. His

argument has merit. NGI’s as discussed are those who have committed criminal acts but

have been civilly committed rather than criminally penalized because of their severe

mental disorder. Under the current statutory scheme they may not be in civil custody

                                            12
longer than the maximum state prison term to which they could have been sentenced for

the underlying offense [citations] unless at the end of that period the district attorney

extends the commitment for two years by proving in a jury trial beyond a reasonable

doubt that the person presents a substantial danger of physical harm to others because of

a mental disease, defect, or disorder. [Citations.] We agree that, as with MDO’s, the

People have not yet carried their burden of justifying the differences between the SVP

and NGI commitment statutes.” (McKee, supra, 47 Cal.4th at p. 1207.)

       In Curlee, supra, 237 Cal.App.4th 709, the court held that for purposes of the

testimonial privilege in commitment proceedings, SVP’s and NGI’s are similarly

situated. Citing, inter alia, McKee, supra, 47 Cal.4th 1172, the court stated: “The

preconditions to commitment are similar: Both groups have committed a criminal act

and have been found to suffer from a mental condition that might present a danger to

others. [Citation.] At the end of the SVP’s prison term, and at the end of the term for

which an NGI could have been imprisoned, each is committed to the state hospital for

treatment if, at the end of that period, the district attorney proves in a jury trial beyond a

reasonable doubt that the person presents a danger to others as a result of a mental

disease, defect, or disorder. [Citations.] The purpose of the commitment is the same: To

protect the public from those who have committed criminal acts and have mental

disorders and to provide mental health treatment for the disorders. [Citations.]” (Curlee,

at p. 720.)




                                              13
       In this case, the Attorney General contends that NGI’s are not similarly situated

with respect to MDO’s or SVP’s because an NGI defendant asserts his mental disorder as

an affirmative defense in his criminal trial and is, therefore, found not culpable as a result

of the disorder. She notes that a defendant bears the burden of proof on the NGI defense.

(See § 25, subd. (b).) In contrast, in both MDO and SVP proceedings, a defendant has

been found guilty of a qualifying offense and after having served his or her sentence, is

found to qualify for civil commitment in a proceeding in which the prosecution bears the

burden of proof as to the existence of a mental disorder that renders that defendant a

danger to the public. We fail to see how these distinctions are relevant to the

determination as to whether the three groups are similarly situated for purposes of the

testimonial privilege, however. Based on the reasoning of McKee, supra, 47 Cal.4th at

page 1202, and Curlee, supra, 237 Cal.App.4th at pages 720 through 721, we can see no

distinction between MDO’s and either SVP’s or NGI’s for purposes of the testimonial

privilege. Accordingly, we hold that for that purpose, MDO’s, NGI’s and SVP’s are

similarly situated.

       Disparate Treatment.

       If two groups are found to be similarly situated for the purposes of the law in

question, the next inquiry is whether the state can justify the disparate treatment. (People

v. Buffington (1999) 74 Cal.App.4th 1149, 1155.) One of two tests applies in a given

case: either the rational basis test or the strict scrutiny test. The rational basis test applies

when the statute involves neither a suspect class nor a fundamental right. That test

                                               14
requires only that there is “‘“any reasonably conceivable state of facts that could provide

a rational basis for the classification.”’ [Citation.]” (People v. Turnage (2012) 55

Cal.4th 62, 74.) If the statute does affect a fundamental right, strict scrutiny applies.

(Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20 (Hubbart).) “‘[O]nce it

is determined that [a] classification scheme affects a fundamental interest or right the

burden shifts; thereafter the state must first establish that it has a compelling interest

which justifies the law and then demonstrate that the distinctions drawn by the law are

necessary to further that purpose.’ [Citations.]” (People v. Saffell (1979) 25 Cal.3d 223,

228 (Saffell).)

       The Attorney General contends that the rational basis test applies in this case. In

our original opinion, we held that, on the contrary, the proper standard is strict scrutiny.

We based this holding on Hubbart, supra, 19 Cal.4th 1138, and other cases in which the

California Supreme Court has held that strict scrutiny applies to equal protection

challenges to civil commitment schemes because those schemes affect the individual’s

fundamental liberty interest. (Id. at p. 1153, fn. 20; McKee, supra, 47 Cal.4th at p. 1203

[involuntary commitment schemes impact individual’s fundamental liberty interest],

1210 [strict scrutiny applies].) In a petition for rehearing, the Attorney General

contended that this conclusion is erroneous and that we “unwarrantedly expand[ed]

McKee’s holding.” She contends that McKee holds that strict scrutiny does not apply to

“every detail” of civil commitment schemes. She contends that the testimonial privilege

is merely a statutory trial right and not a matter affecting a fundamental interest, and that

                                              15
strict scrutiny therefore does not apply. We granted rehearing to address these

contentions.

       The California Supreme Court has long held that under California law, equal

protection challenges to involuntary civil commitment schemes are reviewed under the

strict scrutiny test because such schemes affect the committed person’s fundamental

interest in liberty. (Hubbart, supra, 19 Cal.4th at p. 1153, fn. 20 and cases cited

therein.)10 The court reiterated that holding in 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.]”’ [Citation.]” Up to that point, the court had never, in any case of which we

are aware, stated any limitations on that rule. The Attorney General contends that in

McKee, supra, 47 Cal.4th 1172, however, the court did hold that equal protection

challenges to some minor aspects of a civil commitment scheme are not subject to strict

scrutiny.




       10  The court distinguished federal law in this respect, noting that the United States
Supreme Court has “suggest[ed] a willingness” to accord substantial deference to
involuntary civil commitment laws challenged under the federal Constitution. (Hubbart,
supra, 19 Cal.4th at p. 1153, fn. 20.) The court then stated that in contrast, California
“has traditionally subjected involuntary civil commitment statutes to the most rigorous
form of constitutional review.” (Ibid.) Here, appellant relies on both the Sixth and
Fourteenth Amendments to the United States Constitution and article I, section 15 of the
California Constitution.



                                             16
       In McKee, supra, 47 Cal.4th 1172, in an equal protection challenge to amendments

to the SVP act, the court rejected in a footnote the suggestion by the concurring and

dissenting justice that it was holding that strict scrutiny applies to “‘every detail of every

civil commitment program.’” (McKee, at p. 1210, fn. 13.) In the same footnote,

however, the court went on to say, “Nor do we agree with the concurring and dissenting

opinion inasmuch as it means to imply that 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 is merely an

alteration of a minor detail of the commitment scheme.” (Ibid.) Thus, the court referred

to the concurrence and dissent only for the purpose of rejecting any implication that the

issues before it in that case could be deemed to be mere “details” of the SVP act. The

court’s rejection of the concurring and dissenting justice’s characterization of its holding,

is not, of course, the equivalent of actually holding that strict scrutiny does not apply to

some details of the SVP act or other involuntary civil commitment statutes. Moreover, in

McKee, the court reiterated its earlier holding in Conservatorship of Hofferber (1980) 28

Cal.3d 161 (Hofferber) that “fundamental distinctions between classes of individuals

subject to civil commitment are subject to strict scrutiny.” (McKee, at p. 1210, citing

Hofferber, at p. 171, fn. 8.) Accordingly, the Attorney General’s contention is simply

erroneous.

       We also reject the Attorney General’s assertion that in McKee, the court held that

“because” the challenged law increased the length of an SVP’s commitment and placed

                                              17
the burden on the SVP to prove eligibility for release, strict scrutiny applies. Nowhere

does McKee state that strict scrutiny applies for any reason other than because the

challenged law affects the liberty interests of the individuals who are subject to it.

(McKee, supra, 47 Cal.4th at pp. 1203-1204 [liberty interest], 1210 [strict scrutiny].)

Opinions are not authority for propositions that were not raised and decided. (People v.

Knoller (2007) 41 Cal.4th 139, 154-155.)

       The Attorney General asserts that in other cases, the Supreme Court has held that

only challenges to “the duration of an MDO’s commitment such that it infringes upon

either his liberty or freedom [and] substantive definitional standards and burdens of

proof, which affect the criteria used to determine whether a person is subject to

commitment” are subject to strict scrutiny review. The cases she cites are In re Moye

(1978) 22 Cal.3d 457 (Moye),11 Hofferber, supra, 28 Cal.3d 161, and Hubbart, supra, 19

Cal.4th 1138. This contention, too, is erroneous.

       In Moye, supra, 22 Cal.3d 457, the issue was whether a person who is committed

to the Department of Health following his acquittal of criminal charges because of

insanity can be held in the department’s custody for a period in excess of the maximum

term provided for the underlying offense of which he was acquitted. (Id. at p. 460.) In

Hofferber, supra, 28 Cal.3d 161, the issue was whether a person who had been charged

       11 Moye, supra, 22 Cal.3d 457, was superseded in part by the enactment of
section 1026.5. (Hudec, supra, 60 Cal.4th at pp. 821-822.)




                                              18
with a violent crime but found incompetent to stand trial was subject to civil commitment

“for reasons and under procedures that differ from those applicable to other mentally

disordered persons.”12 (Id. at p. 167.) In Hubbart, supra, 19 Cal.4th 1138, the issue was

whether the criteria used for determining eligibility for civil commitment under the SVP

act violated due process or equal protection. (Id. at pp. 1151-1167 [due process], 1168-

1170 [equal protection].) However, in none of those cases did the court address a

contention that strict scrutiny applied because of the particular aspect of the civil

commitment scheme that was at issue, nor did it so hold. In Moye, the court merely

stated, “Because petitioner’s personal liberty is at stake, the People concede that the

applicable standard for measuring the validity of the statutory scheme now before us

requires application of the strict scrutiny standard of equal protection analysis.

Accordingly, the state must establish both that it has a ‘compelling interest’ which

justifies the challenged procedure and that the distinctions drawn by the procedure are

necessary to further that interest. [Citation.]” (Moye, at p. 465.) Similarly, in Hofferber,

the applicable standard was not in issue. The sole reference to it is in a footnote, where

the court stated, “The conservator concedes that, because a fundamental liberty interest is

at stake, strict scrutiny is the correct standard of review.” (Hofferber, at p. 171, fn. 8.) In

Hubbart, the court merely noted in a footnote that it “has traditionally subjected

       12  The former Mentally Disordered Sex Offenders Act (Welf. & Inst. Code,
former section 6300 et seq.) is the forerunner of the current SVP act. (McKee, supra, 47
Cal.4th at p. 1196.)



                                              19
involuntary civil commitment statutes to the most rigorous form of constitutional

review.” (Hubbart, at p. 1153, fn. 20.) Accordingly, we reject the suggestion that those

cases stand for the proposition that only certain types of issues arising through equal

protection challenges to civil commitment statutes are subject to strict scrutiny. The

dictum in McKee, supra, 47 Cal.4th 1172, on which the Attorney General relies, does not

affect the court’s existing holdings. We, of course, are bound by the court’s directly

applicable holdings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.)

        For the same reason, we reject the Attorney General’s assertion that denial of the

statutory right not to be compelled to testify is not subject to strict scrutiny because it

“touches on only a single procedural aspect of the trial,” and is therefore merely a trial

error, as opposed to structural error, within the meaning of Arizona v. Fulminante (1991)

499 U.S. 279.13 She is correct that denial of a purely statutory trial right is subject to the

least stringent standard of reversal, i.e., that of People v. Watson (1956) 46 Cal.2d 818.

(People v. Epps (2001) 25 Cal.4th 19, 29.) That is not, however, relevant to the question

of what standard of review applies for purposes of equal protection. In the context of

equal protection, the test for the application of strict scrutiny is whether the civil

        13In Arizona v. Fulminante, supra, 499 U.S. 279, the court distinguished between
federal constitutional errors that are “structural” and require automatic reversal of a
criminal conviction because they affect the “framework within which the trial proceeds,”
from “trial errors” occurring during the trial. Trial errors are subject to harmless error
analysis. (Id. at pp. 306-310.)



                                              20
commitment scheme itself affects personal liberty, not whether a particular aspect of the

act is the equivalent of structural error.


       For these reasons, we reject the Attorney General’s contentions on rehearing and

reiterate that strict scrutiny applies to the determination whether the testimonial privilege

provided for in section 1026.5(b)(7) applies to MDO proceedings.14

                                              3.

    REVIEW OF THE ASSERTED INSTRUCTIONAL ERROR IS FORFEITED15

       Appellant appears to assert that the trial court erred by failing to instruct the jury

on the burden of proof with respect to his medicated state, i.e., whether he is in remission

because his symptoms are controlled by his current medication. That is, at least, what the

heading of his argument states. He relies on People v. Noble (2002) 100 Cal.App.4th 184

(Noble). Upon further examination, however, appellant’s actual contention is that the

trial court erred by failing to give an instruction suggested in dictum by the court in

Noble. (Id. at p. 190.) The suggested instruction does not relate to the actual issue in


       14  The Attorney General has not identified a compelling state interest which
would support different treatment for MDO’s with respect to the testimonial privilege. In
both McKee, supra, 47 Cal.4th 1172 and Curlee, supra, 237 Cal.App.4th 709, the courts
remanded the matters for an evidentiary hearing to allow the state the opportunity to
establish a factual basis justifying the disparate treatment of the affected groups.
(McKee, at pp. 1208-1211; Curlee, at pp. 722-723.) Because we are dismissing the
instant appeal as moot, however, that issue must be litigated in some future case.

       15   See footnote 4, ante.



                                              21
Noble, which is that the court gave an instruction that impermissibly shifted the burden of

proof. (Id. at pp. 188-190.)

       The issue in Noble is as follows. In that case, the trial court in an MDO

proceeding first instructed the jury: “‘It is the burden of the prosecution to prove beyond

a reasonable doubt that the defendant meets the requirements for a hospital extension as

defined in these instructions.’ It then instructed the jury to determine whether defendant,

‘by reason of a mental disorder, not at this time in remission, represents a substantial

danger of physical harm to others. [¶] The People have the burden of proving beyond a

reasonable doubt that the respondent [defendant]: [¶] 1. Has a severe mental disorder;

[¶] 2. Suffers from a severe mental disorder that is not in remission or cannot be kept in

remission if the person’s treatment is not continued; and [¶] 3. By reason of his severe

mental disorder, the respondent [defendant] represents a substantial danger of physical

harm to others.’ Quoting the statutory definition of the term, the trial court also

instructed the jury that ‘“remission” means a finding that the overt signs and symptoms of

the severe mental disorder are controlled either by psychotropic medication or

psychosocial support. . . .’” (Noble, at p. 189.)

       The jury was further instructed in terms of CALJIC No. 4.15 as follows: “‘It is a

defense to a Petition to Extend Commitment that the respondent [defendant] in a

medicated state does not represent a substantial danger of physical harm to others. [¶]

The . . . [defendant] has the burden of proving by a preponderance of the evidence all of

the facts necessary to establish: [¶] 1. In his present medicated condition he no longer

                                             22
represents a substantial danger of inflicting physical harm upon others; and [¶] 2. He

will continue to take the medication as prescribed, in an unsupervised environment. [¶]

If you find that the respondent [defendant] has met this burden on these issues, you

should find that he does not represent a substantial danger of physical harm to others.’”

(Noble, supra, 100 Cal.App.4th at p. 189.)

       The appellate court held that giving CALJIC No. 4.15 was erroneous because the

so-called “medication defense,” i.e., the defense that the person is in remission because

his medication controls his mental disorder and renders him not dangerous is not an

affirmative defense. Rather, it is a defense that negates an element of the state’s case, in

that the state has the burden of proving that the person is not in remission. An affirmative

defense is one which does not negate an essential element of a cause of action or charged

crime, but instead presents new matter to excuse or justify conduct that would otherwise

lead to liability. (Noble, supra, 100 Cal.App.4th at p. 189.) “Where a ‘defense’ negates

an essential element of the crime charged rather than introducing new matter . . . ‘the

state may not constitutionally place the burden of persuasion on that issue upon the

defendant.’ [Citation].” (Ibid.) Accordingly, the court held, the trial court erred in

giving CALJIC No. 4.15. (Noble, at pp. 189-190.)

       The court then stated in dictum that when a defendant relies on the medication

defense, the court should instruct the jury as follows: “The People have the burden to

prove, beyond a reasonable doubt, that if released, the defendant will not take his or her




                                             23
prescribed medication and in an unmedicated state, the defendant represents a substantial

danger of physical harm to others.” (Noble, supra, 100 Cal.App.4th at p. 190.)

       Here, the trial court did not give an instruction shifting the burden of proof to

appellant on the medication defense. Instead, it instructed on the state’s burden using

CALCRIM No. 3457. That instruction explains that the state must prove that the person

has a severe mental disorder that is not in remission or that cannot be kept in remission

without continued treatment and, as a result, the person poses a substantial danger of

physical harm to others. It defines “remission” as meaning that “the external signs and

symptoms of the severe mental disorder are controlled by either psychotropic medication

or psychosocial support.” (CALCRIM No. 3457.)

       Appellant relied on the medication defense in the hearing and presented evidence

that he had not engaged in any violence since he began taking lithium. He requested a

special instruction in the language suggested in Noble, supra, 100 Cal.App.4th at page

190. The court denied the request, saying that the requested instruction was adequately

covered by CALCRIM No. 3457.

       Appellant now contends that this was error, because the jury might have been

confused by CALCRIM No. 3457. He contends that the instruction may be confusing or




                                             24
misleading, “[d]epending on the jury’s understanding of the word ‘treatment.’”16 If the

jury understood “treatment” to mean “medication,” he contends, the instruction’s

definition of remission “would have made no sense, and the jury would have been

confused.” Appellant did not, however, make that argument in the trial court. Rather, his

attorney merely stated that he was requesting the Noble instruction because an appellate

attorney had taken him to task in a prior case for failing to request the instruction. Even

after the jury submitted a question asking for clarification about remission, defense

counsel merely suggested that the Noble instruction “might be appropriate in light of the

question.”17 He did not make the assertion appellant now makes, i.e., that CALCRIM

No. 3457 is confusing because it does not define “treatment.” The Noble instruction in

no way clarifies the meaning of “treatment,” however. Rather, it addresses the People’s

burden “to prove, beyond a reasonable doubt, that if released, the defendant will not take

his or her prescribed medication and in an unmedicated state, the defendant represents a

substantial danger of physical harm to others.” (Noble, supra, 100 Cal.App.4th at

p. 190.) Failure to request clarifying language where an instruction is otherwise correct

forfeits review. (People v. Maury (2003) 30 Cal.4th 342, 425-426, disapproved on other

       16  Appellant’s argument initially appears to be that CALCRIM No. 3457 was
confusing, depending on how the jury understood the word “treatment.” However, as we
discuss, this is not actually the gist of his argument.

       17  “1. Is substantial danger of physical harm to others; are we to consider the fact
if he is medicated or not? [¶] 2. Also, will Mr. Dunley be given a social worker when
released?”



                                             25
grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) Accordingly,

appellant’s claim was not preserved for review.


                                    DISPOSITION

      The appeal is dismissed.

      CERTIFIED FOR PARTIAL PUBLICATION



                                                            McKINSTER
                                                                                 J.
We concur:



RAMIREZ
                       P. J.



HOLLENHORST
                          J.




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