Filed 2/18/16 P. v. Small CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050103

         v.                                                            (Super. Ct. No. 94WF1665)

FREDERIC BYRON SMALL,                                                  OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Lance
Jensen, Judge. Reversed and remanded.
                   Richard Schwartzberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jule L. Garland, Assistant Attorney General, Peter Quon, Jr., Randall
D. Einhorn, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent.
                                          *                  *                  *
              Frederic Byron Small appeals from a judgment entered pursuant to Penal
Code section 2962 (all further undesignated statutory references are to this code),
declaring him to be a mentally disordered offender (MDO) and thus subject to mandatory
inpatient treatment at a state mental hospital as a condition of his parole. He contends the
trial court violated his rights under the Fifth Amendment of the United States
Constitution and his constitutional right to equal protection, when it compelled him to
testify at the hearing to determine whether he qualified as a MDO. We reject his first
contention but conclude his second may have merit.
              As defendant points out, the determination that a defendant qualifies as a
MDO, and thus may be confined for treatment in a state mental hospital following the
completion of his prison term, is similar to the determination that a person found not
guilty of a crime by reason of insanity (NGI) should be confined in a state mental hospital
for treatment past the maximum term of commitment for his or her crime. In the latter
proceeding, however, the governing statute provides the defendant is “entitled to the
rights guaranteed under the federal and State Constitutions for criminal proceedings”
(§ 1026.5, subd. (b)(7)), which includes the right not to testify in the proceeding. (Hudec
v. Superior Court (2015) 60 Cal.4th 815.) By contrast, defendant here asserted a right
not to testify in the MDO proceeding, but the trial court rejected the assertion and
compelled his testimony.
              On appeal, the Attorney General makes several arguments in an attempt to
explain why the Legislature’s extension of the right not to testify to the subjects of
proceedings to extend the commitments of persons previously found to be NGI, but not to
the subjects of proceedings to declare someone an MDO, is not a denial of equal
protection. None of those arguments is persuasive. We conclude that for purposes of
asserting a right not to testify, these two groups are similarly situated. Nor are we
persuaded by the Attorney General’s attempt to justify this disparate treatment for these
two groups. Thus, in accordance with People v. McKee (2010) 47 Cal.4th 1172, 1207

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(McKee) and People v. Curlee (2015) 237 Cal.App.4th 709, we reverse the judgment and
remand the case to the trial court to give the prosecutor the chance to make the
appropriate showing that disparate treatment is justified.


                                           FACTS


              Defendant was convicted of two counts of forcible lewd conduct, both
arising from an incident in which he approached a 13-year-old girl at a bus stop and
inquired whether she would like to smoke “pot” and “make love.” When she declined, he
grabbed her breast and placed her hand on his penis. We affirmed his conviction in 1997.
(People v. Small (May 5, 1997, G018852) [nonpub. opn.].)
              In February 2012, the district attorney filed a petition to commit defendant
as a MDO, pursuant to section 2970. While that petition was still pending, the district
attorney filed an additional petition to extend defendant’s commitment for an additional
year, until August 2014. The petition alleged defendant suffers from a severe mental
disorder, not in remission and which cannot be kept in remission if his treatment is
discontinued. The petition further alleged that as a result of his severe mental disorder,
defendant represents a substantial danger of physical harm to others.
              In April 2014, the district attorney filed a proposed witness list for trial that
included defendant. Defendant filed a motion in limine seeking an order preventing the
district attorney from calling him as a witness. Defendant argued he should be entitled to
the same rights afforded to a person previously adjudicated to be NGI, in a proceeding
where the prosecutor seeks to extend that person’s commitment past the maximum term
of confinement for his or her crime. Among those rights would be the right not to testify
at trial. The trial court denied the motion and ruled defendant could be compelled to
testify.



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              Defendant testified at the trial in April 2014, and at its conclusion, the jury
returned a finding that defendant qualified as an MDO as alleged in the petition.


                                       DISCUSSION


1. The MDO Proceeding
              As explained by our Supreme Court, the MDO statutory scheme provides
that “[a]s a condition of parole, a prisoner may be designated and civilly committed as an
MDO for involuntary treatment of a ‘severe mental disorder’ if certain conditions are
met.” (People v. Allen (2007) 42 Cal.4th 91, 99, fn. omitted.) Specifically, the law
“requires civil commitment of a state prisoner during and after parole when a chief
psychiatrist of the Department of Corrections and Rehabilitation has certified that the
prisoner suffers from a severe mental disorder that is not or cannot be kept in remission
without treatment, that the disorder was one of the causes of or an aggravating factor in
the prisoner’s qualifying crime, that the prisoner has been in treatment for the disorder for
at least 90 days within the year preceding release on parole, and that the prisoner
represents a substantial danger of physical harm to others by reason of the disorder.
[Citation.] A prisoner may challenge the MDO certification by requesting a hearing
before the Board of Parole Hearings (Board) and, if unsuccessful, in superior court as to
whether the prisoner ‘“meets the criteria in Section 2962.”’” (People v. Harrison (2013)
57 Cal.4th 1211, 1215.) At trial, “‘[t]he standard of proof shall be beyond a reasonable
doubt, and if the trial is by jury, the jury shall be unanimous in its verdict.’” (People v.
Allen, supra, 42 Cal.4th at p. 99.)


2. Defendant’s Fifth Amendment Claim
              Defendant asserts the trial court’s refusal to afford him the right not to
testify in the MDO proceeding amounted to both a denial of his Fifth Amendment right

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not to testify against himself, and a denial of equal protection. His first argument is
easily disposed of because it is well-settled that although a proceeding to involuntarily
commit a person for treatment affects his or her liberty interest, it is not criminal in
nature. “[T]he MDO provisions are neither punitive in purpose nor effect and their
procedural safeguards do not require us to transform the hearing into a criminal trial.”
People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 834.) Instead, “‘[t]he
MDO Act has the dual purpose of protecting the public while treating severely mentally
ill offenders.’” (People v. Harrison, supra, 57 Cal.4th at p. 1218.) Where the statutory
scheme is not punitive in either purpose or effect, the Fifth Amendment is not implicated.
(Allen v. Illinois (1986) 478 U.S. 364, 369 [106 S.Ct. 2988, 2992, 92 L.Ed. 2d 296].)


3. Defendant’s Equal Protection Claim
               Defendant’s equal protection argument fares better, however. He bases his
argument on the contention that (1) as the subject of an MDO proceeding at the end of his
prison term, he is similarly situated to a person who is facing the extension of a term of
civil confinement after being found NGI, and (2) the person found NGI is, in that
comparable situation, afforded the right not to testify in connection with the proceeding
to extend the commitment. Specifically, section 1026.5 provides that in a proceeding
where the prosecutor seeks to extend the commitment of a person found to be NGI
beyond the maximum term of confinement for the crime committed, “[t]he person shall
be entitled to the rights guaranteed under the federal and State Constitutions for criminal
proceedings.” (See § 1026.5, subd. (b)(7).) And as recently confirmed by our Supreme
Court in Hudec v. Superior Court, supra, 60 Cal.4th 815 (Hudec), those rights do include
the right not to testify.
               “‘The concept of the equal protection of the laws compels recognition of
the proposition that persons similarly situated with respect to the legitimate purpose of
the law receive like treatment.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253

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(Cooley); People v. Guzman (2005) 35 Cal.4th 577, 591.) Moreover, “[d]ecisions by [the
California Supreme Court] and the United States Supreme Court . . . have [long] used the
equal protection clause to police civil commitment statutes to ensure that a particular
group of civil committees is not unfairly or arbitrarily subjected to greater burdens.”
(McKee, supra, 47 Cal.4th at p. 1199.)
              As explained in Cooley, the first issue to be addressed when an equal
protection claim is made is whether the state has adopted a classification that affects two
or more similarly situated persons or groups in an unequal manner. “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.’” (Cooley, supra, 29 Cal.4th at p.
253.) “If persons are not similarly situated for purposes of the law, an equal protection
claim fails at the threshold.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
              The Attorney General’s initial brief did not address defendant’s equal
protection claim on the merits. Instead, it argued that because Hudec was then pending
before the Supreme Court, and some intermediate appellate courts had actually rejected
the claim that section 1026.5 afforded a person found to be NGI the right not to testify in
a proceeding to extend his or her commitment, it would be speculative and premature to
consider whether the existence of such a right would give rise to an equal protection
argument in this case. However, in January 2015, after this case had been fully briefed,
the Supreme Court decided Hudec and concluded section 1026.5 did afford the subject of
a proceeding to extend an NGI commitment the right not to testify. (Hudec, supra, 60
Cal.4th at p. 830.)
              Consequently, in May 2015, we ordered the parties to file supplemental
briefs addressing the impact of Hudec on the equal protection argument asserted by
defendant. We also invited the parties to address related issues, such as whether a person
facing the possibility of continued involuntary confinement as a MDO under section 2960



                                             6
et seq., is similarly situated to a person who was previously found NGI and is facing the
possibility of extended commitment under section 1026.5, subd. (b)(1).
              In his supplemental brief, defendant reiterated his contention that a person
facing commitment as an MDO is confronting the same denial of liberty as a person
facing an extended commitment following completion of an initial term of confinement
as a NGI – and for essentially the same reasons. In both situations, the prosecution is
attempting to establish the defendant is a danger to society because of a psychiatric
condition that requires treatment in a locked facility for an additional period (a term of
two years in the case of a person found to be NGI (§ 1026.5, subd. (b)(8)), and for the
term of the defendant’s parole in the case of a MDO (§§ 2962, 2968). In both cases, 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. (Cf. §§ 1026.5, subd. (b)(1), 2962, subd. (d)(1).)
              Moreover, the procedural protections given to the subjects of these
proceedings are similar. In a proceeding to extend the commitment of a person found to
be NGI, the subject is entitled to be represented by counsel and to have a jury trial
(§ 1026.5, subd. (b)(3)) and is also given a blanket entitlement “to the rights guaranteed
under the federal and State Constitutions for criminal proceedings.” (§ 1026.5, subd.
(b)(7).) And in the case of an alleged MDO, the statute specifies various protections
found in criminal proceedings – e.g., it places the burden of proof on the person or
agency that certified the person as requiring further treatment under the relevant statute,
and the burden of proof is beyond a reasonable doubt. Additionally, the rules of criminal
discovery, as well as civil discovery apply, the subject of the proceeding is entitled to be
represented by an attorney and to a jury trial, and if the trial is by a jury, the jury must be
unanimous in its verdict. (§ 2966, subd. (b).)
              Defendant also relied on People v. Curlee, supra, 237 Cal.App.4th 709, a
case decided in the wake of Hudec which addressed a similar equal protection claim

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grounded on the fact that a person found NGI could refuse to testify at the hearing to
extend his or her commitment, but a person facing commitment as a sexually violent
predator (SVP) was not entitled to that same right. Relying on McKee, the Curlee court
found that for purposes of assessing the necessity of their testimony at trial, a person
alleged to be a SVP was similarly situated to a person facing an extended commitment
after being found NGI, but then remanded the case to the trial court to allow the
prosecutor an opportunity to justify the disparate treatment. (Id. at pp. 722-723.)


              3.1. The Attorney General’s Contention the Groups Are Not Similarly
              Situated
              The Attorney General responded to defendant’s equal protection argument
by first asserting persons found to be NGI are not similarly situated to persons facing
civil commitment for other reasons. Specifically, the Attorney General relies on Jones v.
United States (1983) 463 U. S. 354, 367 [103 S.Ct. 3043, 77 L.Ed.2d 694] for the
proposition that the “United States Supreme Court has recognized that there are
‘important differences between the class of potential civil-commitment candidates and
the class of insanity acquittees.’” However, the difference highlighted in that case is that
a person who has been acquitted of a crime on the basis of insanity has himself
“advance[d] insanity as a defense and prove[d] that his criminal act was a product of his
mental illness” (ibid.), a distinction that justified affording those NGI acquittees less
procedural protection than were afforded to other candidates for civil commitment. That
distinction certainly does not help the Attorney General, when the crux of defendant’s
argument is that those defendants who have advanced (and proved) insanity as a defense
to their criminal charge are being afforded greater procedural protections than he is.
              The Attorney General also relies on Allen v. Illinois, supra, 478 U.S. at pp.
372-375, in which the Supreme Court notes that because civil commitments are
nonpunitive in nature, the defendant would have no Fifth Amendment right against

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compulsory testimony in a commitment proceeding. But that point is equally applicable
to a person found to be NGI – a person who, after all, has been acquitted of the crime
charged – as it is to a person who is facing a civil commitment as an MDO following
completion of a prison term. As we have already explained, neither of these persons is
facing punishment, and thus neither would be entitled to invoke the protections of the
Fifth Amendment. But as confirmed in Hudec, our Legislature has nonetheless chosen to
extend the right against compulsory testimony to persons facing extended commitment
after being found to be NGI – along with all of the other rights inherent in a criminal
proceeding. By doing so, the Legislature triggers equal protection scrutiny. “[W]hen
certain due process protections for those civilly committed are guaranteed by statute,
even if not constitutionally required, the denial of those protections to one group must be
reasonably justified in order to pass muster under the equal protection clause.” (McKee,
supra, 47 Cal.4th at p. 1207.)
              Indeed, the crux of defendant’s argument is that it is the Legislature’s
decision to extend such a right to persons found to be NGI, but not to persons who are
facing similar exended civil commitment as an MDO, which violates the constitutional
guarantee of equal protection.
              The Attorney General next asserts there is a distinction between persons
found to be NGI and persons facing commitment as an MDO, in that a person found NGI
has the affirmative burden of proving his restoration of sanity, while the burden is on the
prosecutor to establish that a defendant should be committed as an MDO. The
comparison is inapt, however, because it focuses on the burden of proof placed on a
person found NGI, but who is seeking to obtain release before the end of his or her
maximum term of confinement, on the basis of restored sanity. (See § 1026.2.) There is
no comparable proceeding for a MDO.
              Instead, the proper comparison to be made in this case is between the
proceeding to civilly commit a person as an MDO following the completion of his or her

                                             9
prison term (§ 2966), and the proceeding to extend the commitment of a person found
NGI beyond their maximum term of confinement. (§ 1026.5) In both of those
proceedings, the burden of proof is placed on the prosecutor to prove the defendant’s
mental state. There is no distinction.
              Finally, the Attorney General appears to argue that MDOs should not be
considered similarly situated to persons found NGI because our Legislature did not intend
to confer the same rights on these groups. Instead, the Legislature purportedly intended
to treat MDOs like persons civilly committed under the Lanterman-Petris-Short Act (LPS
Act) (Welf. & Inst. Code, § 5000, et seq.) But the Legislature’s intention to treat MDOs
like persons committed under the LPS Act, rather than like persons found NGI, does not
itself demonstrate MDOs are not similarly situated to persons who were found NGI.
              In summary, the Attorney General has failed to proffer any persuasive
argument as to why persons facing commitment as MDOs are not similarly situated to
those persons who, having previously been found NGI, are facing the extension of their
commitment past the maximum term of confinement for their crime. We conclude they
are similarly situated, and consequently turn to the issue of whether the Legislature’s
disparate treatment of these two groups – by affording persons found NGI the right not to
testify, while denying that same right to MDOs, is justified.


              3.2 The Attorney General’s Contention that Disparate Treatment Is
             Justified
              The Attorney General argues that even assuming persons found to be NGI
and those asserted to be MDO are similarly situated, the propriety of offering them
disparate treatment should be assessed under the rational basis test, rather than subjected
to strict scrutiny. We disagree. The Attorney General’s argument is based on the
assertion that the relevant interest at stake in this proceeding for purposes of equal
protection analysis is the person’s right to refuse to testify, a right the Attorney General

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characterizes as a nonfundamental in the context of a civil proceeding. But the right to
refuse to testify is not the interest at stake in the MDO proceeding. Instead, in both a
proceeding to civilly commit a defendant as an MDO, and a proceeding to extend the
commitment of a person found to be NGI, the interest at stake is the defendant’s liberty
interest. “‘[C]ivil commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection.’” (People v. Allen, supra, 42 Cal.4th at p.
98.) That liberty interest is a fundamental one. (See In re Moye (1978) 22 Cal.3d 457,
465 [explaining that “[b]ecause petitioner’s personal liberty is at stake, . . . the applicable
standard for measuring the validity of the [NGI] statutory scheme now before us [as
distinguished from the MDSO scheme then in effect] requires application of the strict
scrutiny standard of equal protection analysis”].)
              Under the strict scrutiny standard, “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.” (In re Moye, supra, 22
Cal.3d at p. 465; see also McKee, supra, 47 Cal.4th at p. 1208 [requiring the prosecutor to
establish that disparate treatment “is needed to protect society”].) But having cited the
wrong standard, the Attorney General has made no attempt to satisfy the correct one.
Consequently, we cannot conclude that has been done.
              However, we also note, like the courts in McKee and Curlee, that the issue
of justification for this disparate treatment was not litigated in the trial court. (McKee,
supra, 47 Cal.4th 1208-1209; People v. Curlee, supra, 237 Cal.App.4th at p. 722.)
Moreover, like those courts, we cannot foreclose the possibility that the prosecutor would
be able to demonstrate an appropriate justification if given the opportunity to do so on
remand. Consequently, we conclude remand for that purpose is appropriate.




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4. The Attorney General’s Claim of Harmless Error
              Finally, the Attorney General argues that even if it was a denial of equal
protection for the court to compel defendant’s testimony, that error was harmless beyond
a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824,
17 L.Ed.2d 705]. However, in making that argument, the Attorney General simply
asserts there was sufficient evidence to support the judgment, even in the absence of
defendant’s testimony. That is not the test. In assessing whether an error was harmless
beyond a reasonable doubt, “[t]he inquiry . . . is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unattributable to the error.”
(People v Johnwell (2004) 121 Cal.App.4th 1267, 1278, italics added.) Where, as here,
the claimed error was allowing the jury to rely on defendant’s own testimony as a basis
for evaluating his mental state, that standard is almost impossible to meet. Indeed, it
would be difficult to conceive of a jury ignoring the defendant’s own testimony in
reaching such a verdict. We certainly cannot say that occurred here, and thus we reject
the claim of harmless error.


                                       DISPOSITION


              The judgment is reversed and the case is remanded to the trial court for an
evidentiary hearing to allow the prosecutor an opportunity to justify the differential
treatment between persons found NGI and persons facing extended commitment as
MDOs when it comes to the right to refuse testimony at a hearing to extend their
commitment. In conducting the hearing, the trial court shall apply the standards and rules
articulated in McKee. If the prosecutor can provide an appropriate justification for
treating these similarly situated groups differently, which withstands strict scrutiny, then
the trial court shall affirm the judgment extending defendant’s commitment as a MDO. If

                                              12
the prosecutor does not carry that burden, the trial court shall conduct a new hearing at
which defendant is not required to testify.




                                                   RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



ARONSON, J.




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