# People v. Barrett

> California Supreme Court · July 30, 2012 · 54 Cal. 4th 1081

URL: https://www.frixlaw.com/law-library/cases/844167

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. CHRISTINE BARRETT, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 30, 2012
- **Citations:** 54 Cal. 4th 1081; 144 Cal. Rptr. 3d 661; 281 P.3d 753; 2012 Cal. LEXIS 7246; 2012 WL 3064339
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Liu
- **Cited by:** 118 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/844167

## Opinion text

Filed 7/30/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S180612
v. )
) Ct.App. 6 H034154
CHRISTINE BARRETT, )
) Santa Clara County
Defendant and Appellant. ) Super. Ct. No. MH034663
____________________________________)

Christine Barrett is an adult who has long been diagnosed with mental
retardation and other mental disorders, and who has lived in the community while
being supported and supervised by others. Because of her increasingly violent
behavior, Barrett became the subject of this proceeding to civilly commit her as a
―mentally retarded person‖ who is a ―danger‖ to herself or others. (Welf. & Inst.
Code,1 § 6500 (section 6500).)2 The People sought placement in a secure
treatment facility pursuant to the statutory scheme.

1 All further undesignated statutory references are to the Welfare and
Institutions Code.
2 Barrett suggests that ―mental retardation‖ and closely related phrases are
outmoded expressions for persons with subaverage cognitive and adaptive
functioning, and that California courts should speak only in terms of persons who
are ―developmentally disabled‖ or ―intellectually disabled.‖ A similar point is
made in the lone amicus curiae brief filed in this court, which was submitted by
Disability Rights California on behalf of itself and other entities and individuals.
The terms ―mentally retarded‖ and ―mental retardation‖ appeared throughout the
(footnote continued on next page)

1
Following a nonjury trial in which Barrett was represented by counsel, the
trial court sustained the allegations of the petition. The court ordered her
committed for one year to the State Department of Developmental Services
(Department), and otherwise approved the requested placement. The judgment
was affirmed on appeal. This court granted Barrett‘s petition for review.
We now decide whether the Court of Appeal properly rejected Barrett‘s
claims that she was denied due process and equal protection of the law insofar as
the record does not reveal the circumstances under which she was tried by the
court, rather than by a jury. The statutory scheme does not expressly provide
either for a right to jury trial or for any related requirement that an alleged
mentally retarded person be advised of, or allowed to personally act upon, any
such right. Nevertheless, the parties do not dispute that Barrett was entitled under
longstanding equal protection principles to a jury unless a jury was validly waived.
Critical here is that Barrett further insists the trial court was constitutionally
compelled to (1) expressly advise her that she could request a jury, and (2) obtain
her personal waiver of a jury, before holding a bench trial and deciding all

(footnote continued from previous page)

statutory scheme when the present commitment proceedings were held and the
findings under review were made. To avoid confusion, we use such original
terminology here, and cite the version of the statutory scheme applied to Barrett at
all stages of the present case. Nonetheless, we are aware that legislative
enactments and proposed amendments replace references to ―mental retardation‖
under section 6500 et seq. with such terms as ―developmental disability‖ and
―intellectual disability.‖ (See Assem. Bill No. 1472, approved by Governor, June
27, 2012 (2011-2012 Reg. Sess.); see also Sen. Amend. to Assem. Bill No. 2370
(2011-2012 Reg. Sess.) June 20, 2012.) As suggested by both Barrett and Justice
Liu‘s concurring and dissenting opinion, however, nothing in this new or pending
legislation appears on its face to concern either the right to jury trial or the
ancillary procedures at issue here.

2
commitment issues itself. Because the record does not show whether such
procedures occurred here, Barrett views the commitment order as inherently
unsound and reversible per se. We disagree, and find no constitutional violation.
Barrett‘s due process and equal protection theories share the same flawed
premise. The section 6500 procedure itself undermines Barrett‘s assumption that
persons alleged to be mentally retarded and dangerous can necessarily decide for
themselves, in a knowing and intelligent manner, whether to demand a jury at their
commitment trials. As we explain, that process is initiated, and proceeds from the
outset, on the basis of strong evidence that the individual facing commitment has
cognitive and intellectual impairments that would prevent him or her from making
a meaningful decision whether to invoke, or waive, the right to a jury trial. The
person‘s rights and interests are nonetheless protected by the state‘s statutory
obligation to provide counsel in section 6500 proceedings.
Accordingly, consistent with closely related decisions of this court, and
given the mental competence issues addressed in section 6500 proceedings as
compared to other commitment scenarios, we conclude it is counsel who must
make the tactical decision whether to seek or waive a jury. To encumber the jury
trial right with a collateral requirement that any waiver be personally made by the
proposed committee following a formal court advisement would serve no useful
purpose in this context. This approach does not undermine the fairness of the
proceedings in a due process sense, or treat dangerous mentally retarded persons
differently from those with whom they are aligned for equal protection purposes.
We therefore will affirm the judgment.

I. CASE HISTORY
On January 22, 2009, the district attorney, acting on the People‘s behalf,
filed a petition in Santa Clara County Superior Court to commit Barrett under
3
section 6500. According to the petition, Barrett lived in a private residence with
staff assistance. The party responsible for her care, maintenance, and support was
the San Andreas Regional Center (Center).3 The Center‘s service coordinator,
Betty Crane, was the person who requested that the petition be filed.
The petition further alleged that Barrett was mentally retarded and
dangerous to herself and others. On this basis, the court was asked to hold an
evidentiary hearing and to order Barrett committed to the Department for care,
custody, and treatment for a period not exceeding one year. In providing reasons
for filing the commitment petition, the district attorney relied on ―the assessment,
evaluations, reports and other documents‖ of the Center and the Department.
These materials were incorporated by reference into the petition, and were filed at
the same time in the form of a confidential exhibit.
On the day the petition was filed, the trial court set a hearing for March 9,
2009. Pending the hearing, the court also ordered Barrett‘s interim placement
under the Department‘s care in a particular secure treatment facility.
Counsel for both parties appeared in court on March 9. Although a court
reporter was also present, no reported proceedings occurred and no transcript was
prepared. As noted by the Court of Appeal, the only record of the hearing is a
printed minute order. It indicates, in an abbreviated handwritten note, that the
matter was continued to April 8, 2009, at 10:00 a.m., for a two-hour hearing. The
March 9 minute order contains no other substantive information.

3 The Center is one of several regional, community-based nonprofit agencies
funded and regulated by the state to serve developmentally disabled persons,
pursuant to the Lanterman Developmental Disabilities Services Act (LDDSA).
(See § 4620; see also post, at p. 11, fn. 10.)

4
On April 8, the trial court began the proceeding at the scheduled time.
Barrett and counsel for both parties were present in the courtroom. Counsel
agreed that the previous two-hour estimate accurately reflected the total amount of
time needed to present evidence and try the case. The People then called Dr.
Robert Thomas, their first and only witness, to the stand. Nothing in the reporter‘s
transcript indicates that any mention of trial by jury occurred.
Dr. Thomas was a psychologist at the Center who qualified as an expert
witness on mental retardation, and who had examined Barrett and reviewed her
case history. He testified that Barrett, then age 27, was mentally retarded. She
had an I.Q. in the ―50‘s to 40‘s‖ — a level deemed ―moderate‖ in the sense that it
was neither mild nor severe. Dr. Thomas based this conclusion, in part, on school
records and psychological reports from early in Barrett‘s life, before she became a
client of the Center in 2001.4
Dr. Thomas further opined that because of cognitive deficits associated
with her mental retardation, Barrett had serious difficulty controlling her behavior,
and was a danger to herself and others. This determination rested on two main
factors: (1) Barrett‘s incapacity ―to understand the complexity of her disorder and
the need for treatment,‖ and (2) her volatile and violent history, as set forth in
―incident reports‖ compiled by the Center.5

4 Dr. Thomas noted near the end of his direct examination that Barrett had
been diagnosed over the years with various mental disorders in addition to mental
retardation. They included autism, bipolar disorder, schizophrenia, and
schizoaffective disorder.
5 On cross-examination, Dr. Thomas acknowledged that other mental
disorders besides mental retardation can trigger aggression, including autism and
schizophrenia. However, in Barrett‘s case, he declined to blame her violent
outbursts either solely or primarily on any diagnosed mental disorder other than
mental retardation. While such conditions likely interacted to affect her behavior,
(footnote continued on next page)

5
Dr. Thomas explained that Barrett had lived at home with her parents until
2001. Because of physical assaults and verbal abuse against her parents, and
noncompliance with her treatment plan, Barrett was placed in a residential facility,
or group home. This facility, where Barrett stayed for five years, was well staffed
and closely monitored. However, according to Dr. Thomas, Barrett repeatedly left
the premises without proper notice and supervision, and disrupted the community
by ―threatening people‖ and acting in ―inappropriate‖ and ―self-destructive‖ ways.
Similar problems arose inside the facility, often triggering an emergency response
and psychiatric hospitalization.
Dr. Thomas testified that, beginning in 2006, Barrett was moved into a
condominium that her parents owned. This arrangement was facilitated by support
staff trained to help persons like Barrett live independently. According to Dr.
Thomas, Barrett‘s outbursts continued. The Center documented 30 incidents in
the 18-month period before the hearing. Typically, Barrett became agitated about
personal matters, and responded by assaulting family members or staff, damaging
property, and committing certain forms of self-abuse. Dr. Thomas noted that
―furniture and pictures and all kinds of things had to be removed from her
apartment just to keep her safe.‖6

(footnote continued from previous page)

and it was difficult to distinguish between them in that sense, the ―limited
cognitive ability‖ associated with mental retardation played a central role in
causing her dangerousness. According to Dr. Thomas, it was Barrett‘s inability to
understand that she was mentally disordered and needed treatment that most
impaired her past progress and prognosis.
6 For example, in September 2008, Barrett was ―obsessing‖ at home about
her hair color when she learned her mother would arrive soon. Barrett became
upset, broke a chair and other furnishings, and was restrained by staff when she
showed aggression toward her mother. Barrett then locked herself in the
(footnote continued on next page)

6
In light of this evidence, Dr. Thomas recommended that Barrett be
committed to a particular secure treatment facility — the same one that was
serving as interim housing at the time of the hearing. He explained that it was the
least restrictive placement. Barrett‘s history showed that she could not safely
reside in either a less secure group home or an independent living situation.
Barrett testified as the only witness on her behalf. She did not like her
current placement because, even though the people were nice and the food was
good, she could not go on outings and preferred the group home. She liked her
medication because it calmed her, but denied being mentally disordered.
Following closing argument, the trial court found that, notwithstanding any
other disorders, Barrett was mentally retarded and dangerous under section 6500,
and that the danger she posed to herself and others was based upon, and caused by,
her mental retardation. She was committed to the Department for one year
beginning on April 8, 2009, the date of the hearing. The court designated the

(footnote continued from previous page)

bathroom, but became docile when the police arrived and took her to a psychiatric
unit for evaluation. Later that month, Barrett was crying in her bedroom when she
suddenly emerged and punched holes in the walls. She threw a glass bowl at a
window, breaking the window on the second try. Two months later, in December
2008, Barrett refused to leave home for a mental health appointment. She
threatened to harm staff, destroyed property, and purposefully scratched her face
to make it bleed. This episode triggered a 9-1-1 call and admission to a
psychiatric unit. Finally, two incidents occurred in January 2009. First, Barrett
came home upset after attending church with her parents. She assaulted staff and
was hospitalized for emergency psychiatric care. Later that month, at the Center,
Barrett cursed and angrily announced that she had changed her name. She
threatened to harm staff with a knife, and then entered the bathroom and scratched
her arm.

7
secure treatment facility then being used as interim housing as the least restrictive
and most appropriate placement.7
On appeal, Barrett focused on the lack of a jury at her commitment trial.
Based on the premise that she had a constitutional right to a jury decision on the
allegations of the petition, Barrett argued that due process and equal protection
principles were violated insofar as the record did not show that the trial court
advised her of the right to a jury, or elicited a valid waiver of that right before
holding a bench trial. She relied on two cases — both from the Third District
Court of Appeal — imposing these requirements in section 6500 proceedings.
(People v. Alvas (1990) 221 Cal.App.3d 1459 (Alvas); see id. at pp. 1463-1464
[recognizing equal protection right to personal jury advisement like the one given
to dangerous mentally ill persons under § 5302 of the Lanterman-Petris-Short
(LPS) Act], pp. 1464-1465 [concluding that jury waiver is uninformed and invalid
for due process purposes absent an express personal advisement]; accord, People
v. Bailie (2006) 144 Cal.App.4th 841, 847 (Bailie) [reaffirming Alvas on equal
protection grounds, and declining to reexamine Alvas‘s due process analysis].)

7 The trial court scheduled a followup hearing in July 2009, to review the
complex nature of Barrett‘s diagnosed disorders, and to ensure the best placement
and treatment options over the long term. The court contemplated that, in the
ensuing three-month period, either the Center or Barrett‘s treatment facility would
conduct a full evaluation of her psychiatric history. No further testing was
ordered. The record contains no other information about the July 2009 hearing or
about any other trial court proceeding after the April 2009 commitment hearing.
Indeed, we infer that the original commitment order ―expire[d] automatically‖ by
its own terms one year after it was made (§ 6500), and that it therefore is
technically moot. Because the issues are of recurring importance and properly
presented by the parties, we decide the case on the merits. (See, e.g.,
Conservatorship of John L. (2010) 48 Cal.4th 131, 142, fn. 2 (John L.), and cases
cited; Conservatorship of Hofferber (1980) 28 Cal.3d 161, 167, fn. 2 (Hofferber),
and cases cited.)

8
Here, however, a unanimous Sixth District Court of Appeal panel rejected
the Third District‘s approach as an aberrant departure from settled law. The
instant Court of Appeal observed that except for Alvas, supra, 221 Cal.App.3d
1459, and Bailie, supra, 144 Cal.App.4th 841, California courts have never placed
any procedural conditions on the manner in which the defense demands or
declines a jury under section 6500. This approach warranted rejection of Barrett‘s
constitutional claims, the court said, because her competence on jury trial matters
was in doubt given the nature of the issues raised under section 6500. The Court
of Appeal further reasoned that the failure of the defense to request a jury
generally waives the right, and that the apparent absence of such a request here
precluded a finding that a jury had been wrongly denied. The judgment was
affirmed. Barrett sought review.
II. STATUTORY BACKGROUND
California has no fewer than nine involuntary commitment procedures that
may apply to persons who have various mental problems, and who pose a threat to
their own welfare or to the safety of others. Some of these laws, including section
6500 et seq., operate in a manner largely independent of the criminal justice
system. (See §§ 4825 [developmentally disabled persons under the LDDSA],
5000 et seq. [mentally ill persons under the LPS Act].) Others apply depending on
whether a criminal prosecution has occurred. (See § 3000 et seq. [narcotic addicts
whether or not they have been convicted of crimes].) Certain accused criminals
may receive a mental health commitment in lieu of conviction and punishment.
(See Pen. Code, §§ 1026-1027 [defendants acquitted by reason of insanity], 1367
et seq. [defendants found mentally incompetent].) Also, dangerously disordered
offenders may be held upon discharge by the juvenile authorities (see Welf. &
Inst. Code, § 1800 et seq.), or after serving a prison term (see § 6600 et seq.

9
[sexually violent predators]; Pen. Code, § 2960 et seq. [mentally disordered
offenders]).
The statutory scheme applied here has been in effect for over 40 years.8
The basic rule is that ―no mentally retarded person may be committed‖ to the
Department ―unless he or she is a danger to himself or herself, or others.‖
(§ 6500.) Dangerousness includes a finding of incompetence to stand trial under
Penal Code section 1367 et seq., for accused criminals in certain serious and
violent cases. (Welf. & Inst. Code, § 6500.) For mentally retarded persons under
the care or treatment of a state hospital or other facility when the petition is filed,
proof of a recent overt act is not needed to find them to be a danger to themselves
or others. (Ibid.)
A section 6500 proceeding commences under certain conditions. First,
designated persons ―may request‖ that a petition for commitment be filed by an
―authorized‖ official, as discussed further below. (§ 6502.)9 In general,
individuals allowed to make this ―request‖ are those charged with the support of
the mentally retarded person, are representatives of the juvenile or criminal justice

8 See former section 6500.1, added by Statutes 1970, chapter 351, section 3,
page 765, and renumbered as section 6500 and amended by Statutes 1978, chapter
1319, section 2, page 4316; see also sections 6502-6512 (exclusive of § 6504.5),
added by Statutes 1967, chapter 1667, section 37, page 4107, operative July 1,
1969.
9 Section 6502 states, in pertinent part: ―The following persons may request
the person authorized to present allegations pursuant to Section 6500 to file a
petition for commitment: [¶] (a) The parent, guardian, conservator, or other
person charged with the support of the mentally retarded person. [¶] (b) The
probation officer. [¶] (c) The Youth Authority. [¶] (d) Any person designated
for that purpose by the judge of the court. [¶] (e) The Director of Corrections. [¶]
(f) The regional center director or his or her designee. [¶] The request shall state
the petitioner‘s reasons for supposing the person to be eligible for admission
thereto, and shall be verified by affidavit.‖

10
system, are designated by the court, or — as in the present case — serve as the
director of a regional center, or as his or her designee. (§ 6502.)10 This provision
appears to assume that the requesting party is familiar with the person sought to be
committed, or has access to relevant information about the person‘s condition and
history. Indeed, any ―request‖ made under section 6502 must document or
otherwise state ―reasons‖ for asserting that the person is eligible for commitment.
Any request containing such information also must be ―verified by affidavit.‖
(Ibid.)
Second, allegations that a person is mentally retarded and dangerous are
presented to the superior court in petition form by either the district attorney or
county counsel, as determined by the county board of supervisors. (§ 6500; see
§ 6502.) Where a petition is filed, the court appoints the director of the regional
center, or a designee, to examine the person and submit a written report.
(§ 6504.5.)11 The report must include an evaluation of the person, as well as a

10 Under the LDDSA, regional centers consist of a network of ―private
nonprofit community agencies‖ (§ 4620, subd. (b)) with which the state, through
the Department, contracts to provide lifetime support directly to developmentally
disabled persons and their families. (Id., subd. (a); see § 4512, subd. (a) [defining
― ‗developmental disability‘ ‖ to include mental retardation].) Regional centers
assess clients by reviewing their diagnostic history, and providing or procuring a
wide range of tests and evaluations. (See §§ 4642, 4643.) In each case, the center
establishes both a ― ‗planning team‘ ‖ (§ 4512, subd. (j)) and an ―individual
program plan‖ identifying goals and needs (§ 4646). A high priority is ―direct
service coordination‖ (§ 4640.6, subd. (a)), in which services are obtained from
providers, vendors, and contractors. (See §§ 4640.7, 4647, 4648.) A regional
center employee, or ― ‗service coordinator,‘ ‖ prepares individual program plans,
secures needed services, and provides placement and monitoring support.
(§ 4640.6, subd. (d); see Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 487-
488.)
11 Section 6504.5 states, in pertinent part: ―Wherever a petition is filed [under
section 6500 et seq.], the court shall appoint the director of a regional center for
(footnote continued on next page)

11
recommendation for placement both on an interim basis pending the evidentiary
hearing and after any commitment decision is made. (§ 6504.5, see §§ 6506,
6509, subd. (a).) Relevant factors include the least restrictive residential option
needed to achieve treatment goals and maintain public safety. (§ 6504.5.) A
separate report along similar lines may be submitted by any developmental center
recommended for placement in the regional center report. (Ibid.)
Within a limited time after the petition is filed, the court must set an
evidentiary hearing. (§ 6503; see § 6504 [notice of hearing].) A suitable interim
placement may be ordered pending the hearing, with consideration given to the
reports and recommendations of the regional center and any developmental center
involved in the case. Again, relevant concerns include the least restrictive
arrangement that promotes treatment and protects public safety. (§ 6506.)

(footnote continued from previous page)

the developmentally disabled established under [section 4500 et seq.], or the
designee of the director, to examine the alleged mentally retarded person. [¶]
Within 15 judicial days after [such] appointment, the regional center director or
designee shall submit to the court in writing a report containing his or her
evaluation of the . . . person. The report shall contain a recommendation of a
facility or facilities in which the . . . person may be placed. [¶] The report shall
include a description of the least restrictive residential placement necessary to
achieve the purposes of treatment. . . . [C]onsideration shall be given to public
safety. If placement into or out of a developmental center is recommended, the
regional center director or designee simultaneously shall submit the report to the
executive director of the developmental center or his or her designee. The
executive director . . . or his or her designee may, within 15 days of receiving the
regional center report, submit to the court a written report evaluating the ability of
the developmental center to achieve the purposes of treatment [and] to protect the
public health and safety from . . . the person‘s known behaviors. [¶] The
[foregoing] reports . . . shall also address suitable interim placements . . . [under]
Section 6506.‖

12
The process of hearing and commitment includes substantial procedural
safeguards. Thus, for persons who lack their own attorney, the court ―shall
immediately appoint‖ counsel to represent them. (§ 6500.)12 The court is also
directed to ―inquire‖ into the person‘s condition, and to thereby enhance the
availability of evidence on this issue. (§ 6507.) Thus, the court may subpoena
qualified physicians and psychologists to examine the person and to testify about
his or her ―mentality.‖ (Ibid.) The attendance of other witnesses also may be
compelled. (Ibid.; see § 6508 [authorizing witness fees and expenses].)
The requisite findings of mental retardation and dangerousness allow the
person to be ―committed to the [Department] for suitable treatment and
habilitation services.‖ (§ 6509, subd. (a).) The same statute requires selection of
the ―least restrictive residential placement‖ to meet these goals, identifies a range
of available facilities (e.g., state hospitals and community care centers), and
permits other appropriate dispositions (e.g., conditional release into the
community) that do not risk the welfare of the person or the public. (Ibid.)
Specific procedures guide the court in selecting an appropriate placement,
including consideration of the regional center report submitted under section
6504.5. (§ 6509, subd. (a).)
An order of commitment ―expire[s] automatically one year after‖ it is
made. (§ 6500.) Subsequent commitments for additional periods may be sought

12 Section 6500 states, in pertinent part: ―In any proceedings conducted under
the authority of [section 6500 et seq.], the alleged mentally retarded person shall
be informed of his or her right to counsel by the court, and if the person does not
have an attorney for the proceedings, the court shall immediately appoint the
public defender or other attorney to represent him or her.‖

13
for persons who remain mentally retarded and dangerous. Recommitment
procedures are ―the same as with an initial petition for commitment.‖ (Ibid.)
III. DISCUSSION
Preliminarily, no statute by its plain terms authorizes a jury to determine
whether someone is mentally retarded and dangerous for purposes of a section
6500 commitment. The lack of any jury trial provision distinguishes the statutory
procedures regulating section 6500 proceedings from most other involuntary
commitment schemes, as we discuss further below.
Nevertheless, here, as in the Court of Appeal, there is no dispute that
someone facing commitment under section 6500 et seq. has the right to trial by
jury on the allegations of the petition. Neither party rests this premise on any
provision of the federal or state Constitution that directly or expressly grants the
right to a jury in criminal or civil trials.13 Rather, they invoke a long and
unbroken line of California appellate court cases holding or assuming — largely
on the basis of federal and state equal protection principles affecting fundamental
interests — that persons alleged to be mentally retarded and dangerous cannot be
denied a jury altogether where jury trials are granted by statute to persons alleged
to be mentally impaired and dangerous under comparable commitment laws.

13 See, e.g., the Sixth Amendment to the United States Constitution (―In all
criminal prosecutions, the accused shall enjoy the right to . . . an impartial jury‖);
article I, section 16 of the California Constitution (―Trial by jury is an inviolate
right and shall be secured to all, but in a civil cause three-fourths of the jury may
render a verdict. A jury may be waived in a criminal cause by the consent of both
parties expressed in open court by the defendant and the defendant‘s counsel. In a
civil cause a jury may be waived by the consent of the parties expressed as
prescribed by statute‖).

14
Thus, persons like Barrett ―are entitled to jury trial upon request.‖ (O‘Brien v.
Superior Court (1976) 61 Cal.App.3d 62, 69.)14
We now assess the adequacy of this basic rule, and decide whether
additional adjunct procedures must be followed in open court for a valid nonjury
trial to occur. Each of Barrett‘s theories under the due process and equal
protection clauses of the federal and state Constitutions is examined in turn.
A. Due Process Claim
Barrett contends it is not sufficient for federal and state due process
purposes that the courts have implied a right to trial by jury to protect the interests
at stake in section 6500 proceedings. She claims the jury trial option needs its
own supplemental layer of support. In other words, the decision whether to try the
case to the court or to a jury belongs solely to the person facing commitment, and
it must be made personally, not through counsel. Under this view, any waiver of a
jury trial is not knowing and intelligent, and is invalid, unless the court first
expressly advises the person of that right. Because the record shows no such

14 See People v. Wilkinson (2010) 185 Cal.App.4th 543, 547; People v.
Sweeney (2009) 175 Cal.App.4th 210, 217-218; Bailie, supra, 144 Cal.App.4th
841, 844-847; Alvas, supra, 221 Cal.App.3d 1459, 1462-1463; Money v. Krall
(1982) 128 Cal.App.3d 378, 398 (Money); In re Watson (1979) 91 Cal.App.3d
455, 459-460; see also In re Hop (1981) 29 Cal.3d 82, 92-93 (Hop) (holding that
developmentally disabled adults who are incapable of protesting or consenting to
hospitalization by third parties under § 4825, and who have no statutory hearing
rights upon admission, have equal protection hearing rights that include ―jury trial
on demand,‖ consistent with jury trial statutes in other commitment schemes); see
Hop at pp. 93-94 (noting that similar constitutional jury trial rule applies in § 6500
proceedings under O‘Brien v. Superior Court, supra, 61 Cal.App.3d 62, 68-69); In
re Gary W. (1971) 5 Cal.3d 296, 303-308 (Gary W.) (same equal protection rule as
to dangerously disturbed persons held for treatment upon discharge from juvenile
system under § 1800 et seq., and who had no statutory jury trial right at the time).

15
express advisement and personal waiver here, Barrett insists a structural defect in
the proceeding occurred, and that automatic reversal of the judgment is compelled.
The People reply that persons alleged to be mentally retarded should be
treated no differently from defendants in certain other kinds of commitment trials
who, because of their alleged mental impairments, lack sufficient capacity to
personally understand and implement the jury trial right, or to override any
contrary decision by counsel. Alluding to the rules generally applicable in civil
cases, the People insist a waiver meets due process requirements where, as here,
the record does not show that counsel, who presumably made an informed and
competent decision in this regard, requested a jury before the section 6500 trial
began.15 The People have the better view.
This court observed long ago that section 6500 proceedings are not criminal
in nature, and that commitment under this scheme, though involuntary, is not
punishment. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [denying alleged
mentally retarded and dangerous persons an absolute right under § 6500 similar to
the one held by criminal defendants not to be called as a witness].) ―The sole state

15 Code of Civil Procedure section 631, subdivision (a) states: ―The right to a
trial by jury as declared by Section 16 of Article I of the California Constitution
shall be preserved to the parties inviolate. In civil cases, a jury may only be
waived pursuant to subdivision (d).‖ Under subdivision (d) of the same section,
―[a] party waives trial by jury in any of the following ways: [¶] (1) By failing to
appear at the trial. [¶] (2) By written consent filed with the clerk or judge. [¶] (3)
By oral consent, in open court, entered in the minutes. [¶] (4) By failing to
announce that a jury is required, at the time the cause is first set for trial, if it is set
upon notice or stipulation, or within five days after notice of setting if it is set
without notice or stipulation. [¶] (5) By failing to deposit with the clerk, or judge,
advance jury fees as provided in subdivision (b). [¶] (6) By failing to deposit with
the clerk or judge, at the beginning of the second and each succeeding day‘s
session, the sum provided in subdivision (c).‖ (Code Civ. Proc., § 631, subd. (d),
italics added.)

16
interest, legislatively expressed, is the custodial care, diagnosis, treatment, and
protection of persons who are unable to take care of themselves and who for their
own well being and the safety of others cannot be left adrift in the community.‖
(Cramer v. Tyars, at p. 137.)
But civil commitment for any purpose can affect liberty and other vital
interests. (Addington v. Texas (1979) 441 U.S. 418, 425-426 (Addington); People
v. Allen (2008) 44 Cal.4th 843, 862 (Allen).) Hence, due process safeguards apply
whether the proceeding concerns mentally retarded and dangerous persons (e.g.,
Heller v. Doe (1993) 509 U.S. 312, 330-333 (Heller)), or persons suffering from
other dangerous disorders needing care and treatment. (E.g., Addington, at
pp. 420-421, 425-427 [mental illness in the form of paranoid schizophrenia];
Moore v. Superior Court (2010) 50 Cal.4th 802, 810, 815 (Moore) [diagnosed
mental disorder qualifying convicted sex offender as ―sexually violent predator‖];
John L., supra, 48 Cal.4th 131, 142, 150 [grave disability affecting welfare of
mentally disordered person].)
Notably, the procedural safeguards required in this context are flexible
(People v. Tilbury (1991) 54 Cal.3d 56, 68 (Tilbury)), and the quantum and quality
of the process due depends upon the nature and purpose of the challenged
commitment. (John L., supra, 48 Cal.4th 131, 150.) In making this
determination, the courts weigh, assess, and consider various factors affected by
the disputed procedure. Distilled, these considerations involve (1) the various
private interests at stake, (2) any competing state or public concerns, and (3) the
potential risk of an erroneous or unreliable outcome. (Ibid.; see Moore, supra, 50
Cal.4th 802, 819; Allen, supra, 44 Cal.4th 843, 862-863; Conservatorship of
Ben C. (2007) 40 Cal.4th 529, 538-539 (Ben C.).)
Barrett treats the first factor, involving her own due process interests, as
salient here. (See Ben C., supra, 40 Cal.4th 529, 538.) She observes, and we
17
agree, that section 6500 proceedings potentially involve a significant restraint on
liberty. Whether the requisite findings of mental retardation and dangerousness
are made by the court or a jury, the person is ordered committed to the Department
for up to one year. Recommitment may be sought if the person‘s condition has not
materially changed during that time. Although the least restrictive placement is
required under the particular circumstances, several statutory options involve
custodial control. They include confinement in a secure facility to treat the
mentally retarded person and to protect the public from the dangers that he or she
presents. (See §§ 6500, 6509, subd. (a).) Such was the case with Barrett.
In addition, we have said that persons facing commitment have a
― ‗dignitary interest‘ ‖ in being informed of the ― ‗nature, grounds, and
consequences‘ ‖ of the proceeding, and in presenting ― ‗their side of the story‘ ‖
before a determination is made. (Allen, supra, 44 Cal.4th 843, 862; see id. at
p. 868 [identifying statutory procedures that protect due process dignitary interests
of alleged sexually violent predators under § 6600 et seq.]; accord, Moore, supra,
50 Cal.4th 802, 819, 824.) It bears emphasis that Barrett does not highlight this
factor, or identify any specific flaws in the statutory scheme in this regard. (See
§§ 6502 [petition must be supported by verified ―request‖ from informed party,
and must state ―reasons‖ for commitment], 6504 [notice of hearing], 6504.5
[mental examination and written report required by regional center director or
designee], 6500 [right to counsel], 6507 [availability of expert testimony and other
witnesses on mental retardation].)
As Barrett suggests, the foregoing interests have been deemed sufficiently
fundamental to implicate certain constitutional jury trial concerns in commitment
cases, at least in those relatively few instances in which a right to trial by jury has
not been legislatively prescribed. It does not follow, however, that the jury trial
option implied by the courts in section 6500 proceedings is illusory unless
18
accompanied by the ancillary procedures Barrett seeks. Nor do such procedures
necessarily amount to independent constitutional rights applicable in every case.
Instead, their due process availability depends, in a particular instance, on a
careful balancing of the public and private interests described above.
In this regard, Barrett fails to consider, and we must now address, the
special character of the commitment proceeding at issue. This consideration
undermines her due process claim.
The controlling principles appear in our unanimous decision in People v.
Masterson (1994) 8 Cal.4th 965 (Masterson). There, the defendant was charged
by felony complaint with violent crimes. Before the preliminary hearing, the
magistrate declared a doubt as to the defendant‘s mental competence to stand trial.
(See Pen. Code, § 1367.) The matter was sent to the superior court for a
competence hearing.
For the hearing, a panel of 12 jurors was chosen to hear evidence and
decide competence. Shortly before the presentation of evidence was set to begin,
counsel for both sides and the defendant were present in court. However, only 11
jurors appeared. The 12th juror apparently was missing. The prosecutor and
defense counsel agreed that the matter could be tried by a jury consisting of the 11
panelists in court at the time. When asked by the trial court whether he understood
this stipulation, the defendant made clear that he rejected its terms. He told the
court that he would ― ‗rather have 12 jurors.‘ ‖ (Masterson, supra, 8 Cal.4th 965,
967.) When asked pointblank if he objected to the stipulation allowing an 11-
person jury, the defendant said, ― ‗Yes.‘ ‖ (Id. at p. 968.)
Over the defendant‘s objection, and consistent with counsel‘s approach, the
competence trial was held in front of only 11 jurors. They unanimously found the
defendant mentally competent. A different jury then convicted him of the charged
crimes. On appeal, the judgment was reversed on the ground that use of an 11-
19
person jury to decide competence over the defendant‘s personal objection
constituted prejudicial error. This court reversed the Court of Appeal.
The critical question in Masterson was whether defense counsel could
―waive the right to a jury trial entirely,‖ even if the defendant objected.
(Masterson, supra, 8 Cal.4th 965, 968.) If so, counsel would necessarily have the
lesser authority, so to speak, of agreeing to a jury of fewer than the usual 12
persons. (Id. at p. 969; see Cal. Const., art. I, § 16; Code Civ. Proc., § 220.)
Masterson first emphasized that in all cases, civil and criminal, ― ‗a party‘s
attorney has general authority to control the procedural aspects of the litigation
and, indeed, to bind the client in these matters . . . .‘ ‖ Counsel, not the client, ― ‗is
captain of the ship.‘ ‖ (Masterson, supra, 8 Cal.4th 965, 969.)
Of course, an exception to this broad rule exists in criminal cases in which
the defendant has a state constitutional right to a jury trial that can only be
expressly and personally waived. (Masterson, supra, 8 Cal.4th 965, 969, citing
Cal. Const., art. I, § 16, & People v. Ernst (1994) 8 Cal.4th 441.) Masterson
observed, however, that a mental competence proceeding, though a byproduct of
the underlying criminal prosecution, is not itself a criminal action in which the
state constitutional requirement of an express personal waiver applies. Nor is it a
civil action. It is a ― ‗special proceeding‘ ‖ in which the right to trial by jury is
wholly statutory. (Masterson, at p. 969; see Pen. Code, § 1369, subds. (a)-(f)
[describing mental examinations, evidence, argument, and instructions in any
―trial by court or jury of the question of mental competence‖].)
Against this backdrop, Masterson concluded that it ―need not decide‖
whether the statutory nature of the jury trial right in a criminal mental competence
proceeding dictates the circumstances under which it can be waived, i.e., whether
there are some statutory rights that counsel may not waive on the client‘s behalf or
over his objection. (Masterson, supra, 8 Cal.4th 965, 970.) Rather, the validity of
20
counsel‘s decision to dispense with a 12-person jury — like the larger question
whether to have a jury at all — rested primarily upon ―the nature of competency
proceedings‖ and the issues addressed therein. (Id. at p. 971.)
Masterson then made the following key point: ―The sole purpose of a
competency proceeding is to determine the defendant‘s present mental
competence, i.e., whether the defendant is able to understand the nature of the
criminal proceedings and to assist counsel in a rational manner. [Citations.]
Because of this, the defendant necessarily plays a lesser personal role in the
proceeding than in a trial of guilt. How can a person whose competence is in
doubt make basic decisions regarding the conduct of a proceeding to determine
that very question?‖ (Masterson, supra, 8 Cal.4th 965, 971.)
In answering this question adversely to the defendant, Masterson relied
heavily on People v. Hill (1967) 67 Cal.2d 105 (Hill). In Hill, after both the trial
court and defense counsel expressed doubt about an alleged felon‘s mental
competence, a hearing was held in which the defendant received new counsel. For
reasons not clear from record, the competence issue was tried by the court, not a
jury. The trial court found the defendant competent and he was later tried and
convicted of the charged crimes. Ultimately, in Hill, this court rejected the
defendant‘s claim that his convictions should be reversed because, in the
competence proceeding, he had not personally waived a jury, or been advised
either by the court or counsel of his right to request a jury trial.
As noted in Masterson, supra, 8 Cal.4th 965, 971, this court made clear in
Hill, supra, 67 Cal.2d 105, 114, that there is ―no duty in a judge‖ to advise the
defendant about his jury trial right in a mental competency proceeding, at least
where he or she is represented by counsel. Also, Masterson observed, when the
preliminary evidence is sufficient to trigger a mental competence hearing, ― ‗it
should be assumed that [the defendant] is unable to act in his own best interests.
21
In such circumstances counsel must be free to act even contrary to the express
desires of his client.‘ ‖ (Masterson, at p. 971, quoting Hill, at p. 115, fn. 4.)
According to Masterson, it is settled that, ― ‗as a matter of tactics counsel may,
without consulting defendant, waive defendant‘s statutory right to demand that a
jury decide his competence.‘ ‖ (Masterson, at p. 972, quoting People v. Samuel
(1981) 29 Cal.3d 489, 496 [summarizing Hill].)
Accordingly, Masterson held that ―counsel may waive the right to a jury
trial in a competency proceeding, and the court need not advise the defendant of
that right.‖ (Masterson, supra, 8 Cal.4th 965, 972.) Hence, Masterson concluded,
no error occurred insofar as counsel stipulated to a jury of 11 persons. It also
made no difference that the defendant in Masterson had personally opposed the
stipulation in open court. In light of the initial doubts expressed about his mental
competence (which the 11-person jury did not sustain), the defendant could not
―veto‖ counsel‘s professional judgment or decisional authority in jury trial
matters. (Id. at p. 973.)16

16 At one point, Masterson, supra, 8 Cal.4th 965, 972, linked its assumptions
about a criminal defendant‘s limited capacity to play a personal role in the
competence hearing to what prior cases had called a ― ‗prima facie showing‘ ‖ of
incompetence. More accurately, the Legislature contemplates that, in the
underlying criminal case, the trial court has entertained a ―doubt‖ on competence
(Pen. Code, § 1368, subd. (a)) and/or counsel has expressed a similar ―belie[f].‖
(Id., subd. (b).) Because due process bars any criminal defendant from being tried
while mentally unsound, a competence hearing is required if ―substantial
evidence‖ raises a ― ‗reasonable doubt‘ ‖on the issue. (People v. Lawley (2002) 27
Cal.4th 102, 131, and cases cited.) Of course, different procedures and formalities
accompany a Welfare and Institutions Code section 6500 matter, which does not
necessarily arise out of, or have any connection to, a criminal case. This does not
mean, however, that before any section 6500 trial, no substantial doubts have been
raised about the person‘s cognitive condition, or that no evidentiary support for the
allegations of mental retardation exists. As we shall explain, a section 6500
(footnote continued on next page)

22
Not surprisingly, this court has determined that persons who are mentally
impaired for reasons other than those present in Masterson, supra, 8 Cal.4th 965,
also cannot ― ‗ ―act in [their] own best interests‖ ‘ ‖ when committed. (Id. at
p. 971.) (See, e.g., Hop, supra, 29 Cal.3d 82, 90-91 [developmentally disabled
adult too incompetent to admit herself to a mental hospital was not competent to
protest or consent to hospitalization by third parties under the LDDSA, § 4825, for
purposes of determining the voluntariness of the latter process]; Thorn v. Superior
Court (1970) 1 Cal.3d 666, 674-675 [persons with acute mental disorders
requiring involuntary 14-day treatment under the LPS Act, § 5250, lack the
capacity to comprehend their statutory rights, or to knowingly decide whether or
not to exercise them, and thus require the assistance of counsel].)
Similar logic applies here. No definition of mental retardation appears in
section 6500 or elsewhere in the statutory scheme. However, the Legislature has
made clear under a neighboring law, the LDDSA, that mental retardation — like
cerebral palsy, epilepsy, and autism — constitutes a ― ‗[d]evelopmental
disability.‘ ‖ (§ 4512, subd. (a).) As such, the condition ―originates before an
individual attains age 18 years, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual.‖ (Ibid.)
More to the point, it is understood for section 6500 commitment purposes
that mental retardation involves ― ‗ ―significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior,‖ and
appearing in the ―developmental period.‖ ‘ ‖ (Money, supra, 128 Cal.App.3d 378,

(footnote continued from previous page)

proceeding begins, and commitment and placement hearings occur, based on
verified information and mental evaluations from interested and informed parties.

23
397, italics added [using ―generally accepted technical meaning‖ of mental
retardation to hold § 6500 is not unconstitutionally vague]; accord, Cramer v.
Gillermina R. (1981) 125 Cal.App.3d 380, 387-388; see Heller, supra, 509 U.S.
312, 321-325 [accepting premise of Kentucky commitment law, in dispute over
constitutional standard-of-proof requirements, that mental retardation is a
permanent developmental and learning disability arising before adulthood].)
Of course, as Barrett suggests, a diagnosis of mental retardation can cover a
range of intellectual deficits and behavioral phenomena. (Money, supra, 128
Cal.App.3d 378, 397.) Still, the significant cognitive and intellectual deficits that
the condition entails, which appear early in life and never recede, affect the ability
to ―make basic decisions‖ regarding the conduct of the section 6500 proceeding.
(Masterson, supra, 8 Cal.4th 965, 971.) Such an individual thus plays a limited
―personal role‖ in the case, and must rely on counsel to decide all tactical and
procedural matters, such as whether to exercise the jury trial right. (Ibid.)
Applying these circumstances to the due process principles discussed
above, we disagree with Barrett that ―the private interests at stake‖ play a
predominant or dispositive role in the analysis. (Allen, supra, 44 Cal.4th 843,
863.) We cannot ignore limits in a section 6500 proceeding on the person‘s ability
to comprehend and control procedural matters, including the decision whether to
exercise the right to a jury trial. It follows that the collateral procedures Barrett
seeks, involving an express advisement and personal waiver, would have little
effect on enhancing either the jury trial right itself or the vital interests it protects.
Hence, these factors do not weigh in favor of finding a constitutional violation to
the extent the requested procedures were not used at her commitment trial.
Barrett further suggests that such a conclusion violates due process because
it improperly ―presumes‖ that a person is mentally retarded before the fact finder
has decided the issue. Again, we are not persuaded. As we explain, no section
24
6500 proceeding is brought or pursued in an evidentiary vacuum or without
competent support.
First, the filing of a section 6500 petition is requested by a responsible and
interested party (e.g., parent, conservator, correctional or probation official, or
regional center director), who presents specific information (reasons) for
supposing that the person is mentally retarded and dangerous, in need of treatment,
and eligible for commitment. The significance of this request, and its role in
providing a foundation for the petition and commitment process, is underscored by
the verification requirement. (§ 6502.) Here, the petition alleged that a request for
commitment was duly made by the Center, which provided Barrett with regular
care and support. In the process, the Center submitted assessments, evaluations,
and reports necessary to support the allegations that Barrett was mentally retarded
and dangerous. These documents were incorporated by reference into the petition
and attached as an exhibit for the court‘s confidential use in the section 6500 case.
Second, where a section 6500 petition is filed, the trial court is entitled to a
written report prepared by, or at the behest of, the director of the regional center,
following an examination of the alleged mentally retarded person. (§ 6504.5.)
Regional centers specialize in assessing and assisting mentally retarded and other
developmentally disabled persons on an individual basis. (See ante, at p. 11,
fn. 10.) Thus, the regional center report obviously serves as a professional pretrial
evaluation of the person‘s history, condition, and behavior, and includes informed
recommendations on treatment and placement, including any interim placement
pending the hearing. According to the petition here, the Center supplied
assessments, evaluations, and reports about Barrett in seeking to commit her as
mentally retarded and dangerous under section 6500.
In light of these principles and authorities, we conclude that someone like
Barrett, who is alleged to be mentally retarded and dangerous under section 6500,
25
is not in a position to personally assert or waive the right to jury trial, to
sufficiently comprehend the jury trial advisement, or to override the views of
counsel on the subject. Sole control over such tactical and procedural decisions
rests with counsel, whether or not the client has been consulted or objects.
Moreover, absent any requirement of a personal waiver, the person facing
commitment has no need for an express court advisement of the right to request a
jury trial. Thus, no fundamental interest requires us to hold that the nonjury trial
in this case violated Barrett‘s due process rights insofar as the record does not
show that she personally declined a jury or was told of the right to request one.
We also agree with the People‘s related suggestion that the defense must
affirmatively and timely request a jury trial, and that the apparent failure to do so,
reflected by the lack of evidence in the record that such a request was made,
results in a valid and enforceable waiver. (See ante, at p. 16, fn. 15 [Code Civ.
Proc, § 631, subd. (d)].) As noted, a statutory right to counsel exists under
Welfare and Institutions Code section 6500. Counsel is presumed competent and
informed as to applicable constitutional and statutory law. This presumption
necessarily includes the defense right to seek a jury trial in a section 6500
proceeding, regardless of any court advisement. Counsel also can be expected,
where necessary or advisable, to consult with the client about jury trial concerns.
(See John L., supra, 48 Cal.4th 131, 154-156 [due process claim rejected on the
basis of similar assumptions that counsel consulted with the client in an LPS Act
conservatorship proceeding under § 5350, and knowingly entered a binding waiver
of any presence and trial rights by informing the court of the client‘s consent].) It
follows that where no defense request for a jury trial appears on the record, we can
properly infer that this omission and the ensuing bench trial were the product of an
informed tactical choice. Counsel has absolute authority to bind the client. (See

26
Masterson, supra, 8 Cal.4th 965, 972-973.) No due process interest is served by
requiring counsel to expressly confirm any waiver of a jury trial in open court.
We further reject the contrary analysis in Alvas, supra, 221 Cal.App.3d
1459, 1464-1465, on which Barrett relies. In Alvas, the Court of Appeal held that
a due process violation occurs, and that a section 6500 commitment following a
nonjury trial is invalid, when the record fails to show that the person being
committed received an express advisement and personally waived the right to a
jury trial. Alvas emphasized the need for a knowing and intelligent waiver of that
right. In doing so, however, Alvas ignored the factors we deem most relevant —
the individual‘s limited ability to personally make a jury trial decision, counsel‘s
sole authority to do so, and the lack of any need for a jury trial advisement in this
regard. Insofar as People v. Alvas, supra, 221 Cal.App.3d 1459, is inconsistent
with these conclusions, it is disapproved.
Finally, Barrett suggests that, at the very least, only the most profound
cognitive impairments should prevent someone undergoing a section 6500
proceeding from being allowed to personally make the jury trial decision
following a court advisement. She seems to envision a cumbersome process in
which the court holds (1) a pretrial evidentiary hearing on whether the person is so
mentally retarded that counsel must handle all jury trial issues, and (2) a full-
blown trial in which the fact finder (judge or jury) decides whether the person is so
mentally retarded and dangerous as to warrant commitment.
However, when assessing competing due process concerns, courts are not
blind to the ― ‗administrative burdens‘ ‖ and ―practical difficulties‖ of demanding
new procedures. (Moore, supra, 50 Cal.4th 802, 828, quoting Allen, supra, 44
Cal.4th 843, 867; see, e.g., Tilbury, supra, 54 Cal.3d 56, 69 [noting state‘s due
process interest ―in avoiding the cost of unnecessary jury trials‖ in hearings for
180-day outpatient placements for insanity acquittees under Pen. Code, § 1026.2].)
27
No statute guides the screening procedure suggested here, including the standards
of mental retardation that might apply at each phase. To the extent significant
overlap exists, we are reluctant to require duplicative hearings in the context of the
compact timeframe in which one-year commitments, and recommitments, occur.
Considering all of the relevant factors, we reject Barrett‘s due process
challenge to her nonjury trial. Nothing indicates that a valid waiver of her right to
trial by jury did not occur.
B. Equal Protection Claim
Barrett argues that federal and state equal protection principles require
section 6500 proceedings to involve the same jury trial safeguards that apply under
the LPS Act to proceedings in which already confined patients who pose a
―demonstrated danger‖ as a result of ―mental disorder or mental defect‖ may be
retained for a further 180 days of intensive custodial treatment. (§ 5300, subds.
(a)-(c); see § 5300 et seq. [postcertification procedures for imminently dangerous
persons].) Specifically, under section 5302, the superior court must give an
―advise[ment]‖ when the 180-day LPS Act proceeding begins that, among other
things, the patient has a statutory ―right to demand a jury trial‖ on the allegations
of the petition. (Ibid.; see §§ 5301 [describing petition for postcertification
treatment], 5303 [authorizing ―requests [for] a jury trial‖ at the time of the hearing
on such petitions].)17 Barrett insists that persons who are allegedly mentally

17 Section 5302 states: ―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. The court shall
assist him in finding an attorney, or, if need be, appoint an attorney if the person is
unable to obtain counsel. The court shall appoint the public defender or other
attorney to represent the person named in the petition if the person is financially
unable to provide his own attorney. The attorney shall advise the person of his
rights in relation to the proceeding and shall represent him before the court.‖

28
retarded and dangerous under section 6500 are no different for jury trial purposes
from 180-day LPS Act candidates under section 5300 et seq. Relying heavily on
the equal protection analysis set forth in Alvas, supra, 221 Cal.App.3d 1459, 1463-
1464, and followed by the same court in Bailie, supra, 144 Cal.App.4th 841, 844-
847, Barrett claims no rational distinction exists between the two groups as to
involuntary commitment, and no compelling reason for their disparate statutory
treatment on jury trial advisements.
Because of the fundamental interests at stake, equal protection principles
are often invoked in civil commitment cases to ensure that the statutory scheme
applicable to a particular class of persons has not treated them unfairly in
comparison with other groups with similar characteristics. (People v. McKee
(2010) 47 Cal.4th 1172, 1199, and cases cited.) A prerequisite to a meritorious
claim is that individuals ―similarly situated with respect to the legitimate purpose
of the law receive like treatment.‖ (Gary W., supra, 5 Cal.3d 296, 303; accord, In
re Lemanuel C. (2007) 41 Cal.4th 33, 47; Cooley v. Superior Court (2002) 29
Cal.4th 228, 253.) Where two or more groups are properly distinguishable for
purposes of the challenged law, it is immaterial if they are indistinguishable in
other respects. (Cooley, supra, at p. 253.) Nor, absent this threshold requirement,
is an equal protection inquiry into the justification for any legislative distinction
necessary. (See Gary W., at pp. 304, 306.)
Barrett offers no analysis of the language, history, or function of section
5302 to facilitate the requisite constitutional comparison with jury trial procedures
in section 6500 cases. She simply seems to assume for equal protection purposes
— consistent with her views in the due process context — that the express
advisement in section 5302 is intended to ensure that dangerously disordered
patients facing 180-day LPS Act commitments make an informed personal choice
about whether to exercise their right to request a jury trial under section 5303.
29
However, we need not decide the meaning or purpose of section 5302 to
resolve whether equal protection requires a similar jury trial advisement in section
6500 proceedings. Nor must we address the circumstances under which a 180-day
LPS Act candidate may, either acting alone or through counsel, properly waive a
jury trial and submit to a court trial under section 5303. Assuming for argument‘s
sake that Barrett‘s view of section 5302 is correct, and assuming further that
dangerous mentally retarded persons and dangerous mentally disordered persons
are similarly situated as to the existence of a basic jury trial right, nothing compels
the conclusion that they are also similarly situated as to the ancillary purpose that
an express jury trial advisement, and an express personal waiver, purportedly
serve.
As the People suggest, the critical factor is the distinct ―mentality‖ (§ 6507)
covered by the two schemes. Section 6500 et seq. governs commitments of
dangerous mentally retarded persons, while the LPS Act is a comprehensive
scheme for the involuntary detention, evaluation, and treatment of ―mentally ill‖
individuals. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008
(Susan T.).) For purposes of the LPS Act, such a mentally ill person is anyone
who, ―as a result of mental disorder, is a danger to others, or to himself or herself,
or gravely disabled.‖ (§ 5150; see John L., supra, 48 Cal.4th 131, 142.)
Intervention occurs on a limited basis through successive statutory periods which
are initially quite brief (§ 5150 [72 hours]), and which are ―carefully calibrated‖ to
increase over time. (Ben C., supra, 40 Cal.4th 529, 541; see, e.g., §§ 5250 [14
days], 5270.15 [30 days], 5300 [180 days].) The process culminates in a one-year
conservatorship (§ 5361) for persons who are ―gravely disabled‖ (§ 5350) as a
result of their mental disorders. (See § 5008, subd. (h)(1) & (2) [defining
― ‗gravely disabled‘ ‖]; see id., subd. (h)(3) [excluding ―mentally retarded persons
by reason of being mentally retarded alone‖].)
30
The term ―mental disorder‖ is not defined in any LPS Act provision.
(People v. Allen (2007) 42 Cal.4th 91, 107, fn. 7.) Courts applying the LPS Act
and similar commitment schemes have sought to fill this gap. Mental illness and
related disorders are said to be conditions that may arise suddenly and, for the first
time, in adulthood. (Heller, supra, 509 U.S. 312, 322.) The LPS Act process
itself assumes that the need for treatment may be temporary, and that disabling
mental disorders may be intermittent or short-lived. (See Susan T., supra, 8
Cal.4th 1005, 1018 [―not every detention under section 5150 leads to a
conservatorship proceeding‖].)
In addition, because of the complexity of human behavior, and the lack of a
long history in every case, mental illness and related disorders may be difficult to
diagnose. (Heller, supra, 509 U.S. 312, 322, citing Addington, supra, 441 U.S.
418, 430.) Where present, however, ― ‗mental illness ―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, italics added [addressing circumstances in
which mentally disordered offenders under Pen. Code, § 2960 et seq. have
qualified rights similar to some LPS Act patients to refuse antipsychotic drugs].)
These characteristics suggest that the mental conditions that create
eligibility for an extended 180-day LPS Act commitment, though they include
imminent dangerousness, do not necessarily imply incompetence or a reduced
ability to understand, and make decisions about, the conduct of the proceedings.
Hence, nothing compels the conclusion that such LPS Act patients will not benefit
by the statutory right to a jury trial advisement set forth in section 5302. By
contrast, in the case of persons alleged to be mentally retarded and dangerous
under section 6500, the commitment process itself raises substantial doubts about
their cognitive and intellectual functioning sufficient to limit the personal and
31
procedural role they play. It follows that the two groups are not similarly situated
as to the function that Barrett implies an advisement like section 5302 serves —
comprehending and controlling the decision whether to request a jury trial. Thus,
any disparate statutory treatment with respect to jury trial advisements does not
deprive persons like Barrett of equal protection of the law.
The equal protection analysis included in both People v. Alvas, supra, 221
Cal.App.3d 1459, 1463-1464, and People v. Bailie, supra, 144 Cal.App.4th 841,
844-847, does not persuade us to reach different conclusions. In finding no valid
basis for any disparate statutory treatment as to jury trial advisements, both cases
simply assumed that section 6500 defendants are similarly situated with 180-day
LPS Act candidates. This assumption is flawed and erroneous for reasons we have
explained. Hence, both Alvas and Bailie are disapproved to the extent they
conflict with the views we have expressed.
We also reject a further insinuation in Barrett‘s equal protection claim. She
suggests that, in not expressly authorizing jury trials or requiring jury trial
advisements in section 6500 proceedings, even though several other commitment
schemes include such rights, the Legislature has arbitrarily decided that alleged
mentally retarded persons are unsuited to such protection, and has unfairly
subjected them to more burdensome procedures than persons facing commitment
in almost any other circumstance. In essence, Barrett simply implies that if some
such schemes include these provisions, then all must.
But an equal protection violation does not occur merely because different
statutory procedures have been included in different civil commitment schemes.
(See Hofferber, supra, 28 Cal.3d 161, 172 [Legislature ―may adopt more than one
procedure for isolating, treating, and restraining dangerous persons‖].) Nothing
compels the state ―to choose between attacking every aspect of a problem or not
attacking the problem at all.‖ (People v. Jennings (2000) 81 Cal.App.4th 1301,
32
1312-1313.) Far from having to ―solve all related ills at once‖ (People v. Cooper
(1996) 43 Cal.App.4th 815, 829), the Legislature has ―broad discretion‖ to
proceed in an incremental and uneven manner without necessarily engaging in
arbitrary and unlawful discrimination. (People v. Ward (2005) 36 Cal.4th 186,
217, citing McLaughlin v. Florida (1964) 379 U.S. 184, 191; Warden v. State Bar
of California (1999) 21 Cal.4th 628, 649.)
Contrary to what Barrett implies, she has not been singled out for harsh and
unfair treatment in this regard. Of the nine commitment procedures we have listed
above, a majority (including § 6500 et seq.) either do not reference jury trial
matters at all (such that a right to jury trial on request has been constitutionally
implied),18 or they say nothing about advisements or waivers of any jury trial right
otherwise provided therein.19 By the same token, variations in the other

18 See section 4825, added by Statutes 1977, chapter 1252, section 550,
page 4564, operative July 1, 1978; see also Hop, supra, 29 Cal.3d 82, 92-94.
19 For example, in proceedings to commit narcotic addicts, whether they have
been convicted of crimes (see § 3050 et seq.) or not convicted of crimes (see
§ 3100 et seq.), section 3108 contemplates a ―written demand‖ to be ―tried by a
jury‖ under civil law, and a verdict ―by at least three-fourths of the jury.‖ (§ 3108,
as amended by Stats. 1967, ch. 1124, § 13, p. 2970); but see People v. Thomas
(1977) 19 Cal.3d 630, 641, 644 [holding that due process requires proof beyond a
reasonable doubt and unanimous verdicts in § 3108 jury trials].) Another
approach to the basic jury trial right is used to civilly commit sexually violent
predators. (See § 6600 et seq.) Since that scheme‘s enactment in 1995, section
6603 has stated that the defendant is ―entitled to a trial by jury‖ (§ 6603, subd.
(a)), and that the ―attorney petitioning for commitment‖ also has ―the right to
demand that the trial be before a jury.‖ (Id., subd. (b); see id., subd. (e) [if neither
party demands a jury trial, ―the trial shall be before the court without a jury‖].)
Elsewhere, in proceedings to determine the mental competence of criminal
defendants, Penal Code section 1369 simply authorizes a ―trial by court or jury,‖
and regulates the content and chronology of such trials. (See Pen. Code, former
§ 1369, as amended by Stats. 1974, ch. 1511, § 5, p. 3318, eff. Sept. 27, 1974.)

33
commitment schemes suggest no uniform set of jury trial procedures exists or was
withheld from Barrett.20 There is nothing unusual or unconstitutional about the
manner in which these statutes have evolved over time.

20 See sections 1801.5 (contemplating jury trials in proceedings under § 1800
et seq. to detain disordered and dangerous persons upon discharge from the
juvenile system, unless the right to jury trial is personally waived by the person,
after being fully advised of the waived rights, and by the prosecuting attorney),
5302 (requiring that in LPS Act proceedings to extend custodial treatment to 180
days for imminently dangerous and disordered persons, the court must advise the
person of the right to demand a jury trial); Penal Code, section 1026.5, subdivision
(b)(3), (4) (providing that in proceedings to extend commitment and treatment of
disordered and dangerous persons found not guilty by reason of insanity in felony
cases, the court must advise the person of the right to jury trial, and that any
waiver must be by both the person and the prosecuting attorney), Penal Code,
section 2972, subdivisions (a) and (e) (establishing that in proceedings to continue
commitment and treatment of mentally disordered and dangerous prisoners, the
court must advise the person of the right to jury trial, and that any waiver must be
by both the person and the district attorney).

34
For all of the foregoing reasons, Barrett has not presented a meritorious
equal protection challenge to the statutory jury trial procedures available under
section 6500 compared to other commitment schemes. We decline to invalidate
the commitment order entered after her nonjury trial on this ground.21

21 In separate concurring and dissenting opinions, Justices Liu and Werdegar
likewise approve the commitment order, but only after crafting their own
constitutional theory of equal protection — a theory which contravenes settled law
and undercuts the Legislature‘s decision not to require jury trial advisements in
section 6500 proceedings. Justices Liu and Werdegar are aware that we have
correctly applied the United States Supreme Court‘s prevailing ―rational basis‖
standard for analyzing the equal protection claims of mentally retarded persons.
(Heller, supra, 509 U.S. 312, 319-321.) Nonetheless, though Justice Liu argues
otherwise, he and Justice Werdegar use the jury trial advisement statutorily
available to certain mentally ill patients facing extended 180-day commitments
under the LPS Act (see § 5302) to create a new state constitutional jury trial
advisement right for mentally retarded persons. Their reason for invoking the
state charter is to import federal authority that is outmoded in this context
(Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432), and to thereby
find an equal protection violation under an unduly strict standard of scrutiny. (See
id. at pp. 448, 450.) The standard they propose was, of course, superseded, and
essentially discarded, in Heller, supra, 509 U.S. at page 321. Ironically, the views
set forth at length in the concurring and dissenting opinions result in little real-
world benefit to Barrett, and, as Justice Liu appears to concede, the right to a jury
trial advisement for which he and Justice Werdegar advocate is largely symbolic.
Their analyses include the concession, either express or implicit, that Barrett was
not necessarily entitled to act on such a direct advisement by personally deciding
whether to demand a jury. Moreover, they conclude that to the extent Barrett
received no such advisement, no prejudice occurred in light of undisputed
evidence that she was both mentally retarded and dangerous. In sum, we find the
concurring and dissenting opinions unpersuasive, and we decline to adopt their
views or to modify our approach.

35
IV. DISPOSITION
The judgment of the Court of Appeal is affirmed. To the extent the
analyses in People v. Alvas (1990) 221 Cal.App.3d 1459, and People v. Bailie
(2006) 44 Cal.App.4th 841, are inconsistent with the views expressed herein, these
decisions are disapproved.
BAXTER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
CHIN, J.
CORRIGAN, J.

36
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

I agree with the majority‘s conclusion that defendant Christine Barrett was
entitled to have a jury decide whether the state had proven she met the statutory
standards for involuntary commitment under Welfare and Institutions Code
section 6500.1 (Maj. opn., ante, at p. 14.) But the majority‘s next step in its
analysis is unpersuasive: it finds that although mentally ill persons facing
involuntary civil commitment under the Lanterman-Petris-Short Act (§ 5000 et
seq.) are entitled by statute to have the court advise them ―of [their] right to
demand a jury trial‖ (§ 5302), persons—like Barrett—who are alleged to be
mentally retarded and a danger to themselves or others who similarly face
involuntary civil commitment are not entitled to the same jury advisement. As
Justice Liu explains in his separate opinion, the differences between mentally ill
persons and those alleged to be mentally retarded ―do not support a categorical
distinction between the two groups with respect to a jury right advisement.‖
(Conc. & dis. opn. of Liu, J., post, at p. 21.)
Article I, section 24 of the California Constitution provides that ―[r]ights
guaranteed by this Constitution are not dependent on those guaranteed by the
United States Constitution.‖ The California Constitution is thus a document of
independent force, and the people of this state are not dependent on the United

1 All statutory references are to this code.

1
States Constitution as the primary source of their protection. (See, e.g., People v.
Monge (1997) 16 Cal.4th 826, 847, 871 (dis. opn. of Werdegar, J.) [―good reasons
exist to rely on our state Constitution even before we consider whether the federal
Constitution applies‖].) I thus agree with the approach taken by my colleague
Justice Liu, in his separate opinion, relying on the state equal protection guarantee
in article I, section 7 of the California Constitution, which provides that ―[a]
person may not be . . . denied equal protection of the laws . . . .‖ As he explains
(conc. & dis. opn. of Liu, J., post, at p. 44), this court‘s landmark decision in
Serrano v. Priest (1976) 18 Cal.3d 728 made clear that our state equal protection
clause is ―possessed of an independent vitality which, in a given case, may
demand an analysis different from that which would obtain if only the federal
standard were applicable.‖ (Id. at p. 764.)
A critical first step when determining whether Barrett has a state equal
protection right to an advisement of her jury trial right is to discern the appropriate
equal protection standard, or level of scrutiny, applicable in the case. We recently
explained in Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 298-299, that
the first level of scrutiny ― ‗ ―is the basic and conventional standard for reviewing
economic and social welfare legislation in which there is a ‗discrimination‘ or
differentiation of treatment between classes or individuals. . . .‖ ‘ [Citation.] This
first basic equal protection standard generally is referred to as the ‗rational
relationship‘ or ‗rational basis‘ standard.‖ But while the rational basis test under
the Fourteenth Amendment to the United States Constitution has been applied to
economic and social welfare legislation (see FCC v. Beach Communications,
Inc. (1993) 508 U.S. 307 [applying the rational basis test to uphold a portion of the
Cable Communications Policy Act of 1984]; Warden v. State Bar (1999) 21
Cal.4th 628 [applying the rational basis test to reject a challenge to exemptions
from minimum continuing legal education for retired judges, state officers and

2
elected officials]), that highly deferential test is inappropriate here, where Barrett
faces involuntary civil commitment under section 6500. This serious curtailment
of her personal liberty, along with the stigma that attaches upon being found both
mentally retarded and dangerous,2 justifies a heightened standard in these
circumstances, and for the reasons he explains, I agree with Justice Liu that the
state constitutional protection of article I, section 7, in this context, should be
informed by the high court‘s decision in Cleburne v. Cleburne Living Center, Inc.
(1985) 473 U.S. 432. (See conc. & dis. opn. of Liu, J., post, at pp. 34-35; see
generally id., pt. V.)
The majority justifies its decision to distinguish between persons who are
mentally ill and those who are mentally retarded in part by suggesting that because
Barrett is alleged to be unable to care for herself, we should assume her attorney
will act in her best interests (maj. opn., ante, at pp. 21-23); that due to Barrett‘s
alleged mental deficits she would necessarily play a limited role in her defense (id.
at p. 24); and that a personal jury advisement requirement ―would have little effect
on enhancing either the jury trial right itself or the vital interests it protects‖
(ibid.). Such reasoning fails to acknowledge that those suffering from mental
retardation exhibit a wide range of abilities: ―they range from those whose
disability is not immediately evident to those who must be constantly cared for.‖
(Cleburne v. Cleburne Living Center, Inc., supra, 473 U.S. at p. 442.) More

2 See, e.g., U.S. v. Davis (D.Md. 2009) 611 F.Supp.2d 472, 483 (parents
resist having their children labeled mentally retarded ―because of the stigma
associated with it‖); State v. Vela (2010) 279 Neb. 94, 129 [777 N.W.2d 266, 293]
(―We are aware that a social stigma exists with respect to the phrase ‗mental
retardation.‘ ‖); In re Daniel D. (R.I. 2010) 9 A.3d 651, 652, fn. 1 (noting ―the
State of Rhode Island recently has endeavored to eliminate use of the word
‗retarded‘ and like terms in an effort to address the unfortunate stigma attached to
developmental disabilities‖).

3
importantly, the majority‘s reasoning fails to accord sufficient respect to the rights
of the mentally disabled, as directed by our Legislature as a matter of state policy
in section 4502, which states: ―Persons with developmental disabilities have the
same legal rights and responsibilities guaranteed all other individuals by the
United States Constitution and laws and the Constitution and laws of the State of
California.‖ The same section provides: ―It is the intent of the Legislature that
persons with developmental disabilities shall have rights including, but not limited
to, the following: [¶] . . . [¶] (j) A right to make choices in their own lives,
including, but not limited to, where and with whom they live, their relationships
with people in their community, the way they spend their time, including
education, employment, and leisure, the pursuit of their personal future, and
program planning and implementation.‖ (Ibid.)
Accordingly, a legal scheme in which Barrett may be forced to live in an
institution, against her will and possibly for the rest of her life, without being told
she could have had a jury decide her fate, when the state requires a jury
advisement for mentally ill persons facing essentially the same type of
commitment (§ 5302), lacks a rational basis and thus violates Barrett‘s right to
equal protection under the California Constitution.
Unlike the United States Constitution, the California Constitution specifies
the conditions that must be present before a judgment is reversed. Article VI,
section 13 of the California Constitution states: ―No judgment shall be set aside,
or new trial granted, in any cause . . . for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.‖ Like Justice Liu, I conclude that the violation of Barrett‘s rights under
the state equal protection clause was harmless because it was not reasonably
probable she would have achieved a more favorable result had the trial court

4
informed her of her jury trial right. (People v. Watson (1956) 46 Cal.2d 818,
836.)3 Although I disagree with the majority‘s reasoning, I thus concur in its
result.

WERDEGAR, J.

3 The majority criticizes the reasoning of the separate opinions, saying it is
―[i]ronic[],‖ ―largely symbolic,‖ and ―result[s] in little real-world benefit to
Barrett.‖ (Maj. opn., ante, at p. 35, fn. 21.) To the contrary, although Barrett has
not demonstrated prejudice resulting from the trial court‘s failure to advise her of
her jury trial right in the commitment hearing at issue here, she may be able to do
so in the future if she is recommitted and the error recurs. Moreover, were the
majority to endorse, as I do, the state equal protection analysis set forth in Justice
Liu‘s separate opinion, potential committees in the future would benefit from the
jury trial advisement, thereby fulfilling the statutory directive that such persons
have the ―right to make choices in their own lives, including, but not limited to,
where and with whom they live.‖ (§ 4502, subd. (j).)

5
CONCURRING AND DISSENTING OPINION BY LIU, J.

To most people who are thrust into a courtroom, the whir and din of the
legal process make for a bewildering experience. Counsel is necessary, but even
diligent representation does not always ensure due regard for the dignity of a
vulnerable yet dangerous individual whose liberty is at stake.
In this case, a young woman, Christine Barrett, was found mentally
retarded and dangerous by a judge, and she was ordered committed to a secure
treatment facility. Barrett was not charged with any crime, and the record does not
show any criminal history. The order of commitment was for one year, but it is
renewable year after year without limit. In all likelihood, the commitment
proceeding has irreversibly altered the course of her life. And yet, there is no
indication in the record of the proceedings that the trial court spoke directly to
Barrett about her rights or any other substantive matter.
The trial court found that Barrett, in addition to having mental retardation,
also suffered from mental illness. If Barrett had faced prolonged involuntary
commitment on the basis of mental illness instead of mental retardation, she would
have been statutorily entitled to an advisement by the court of her right to be tried
by a jury. Barrett contends that the Legislature‘s selectivity — requiring the
advisement for mentally ill persons but denying it to persons alleged to be
mentally retarded — proceeds from the objectionable premise that persons in her
position are unworthy of an advisement. As stated in her opening brief, she brings

1
an equal protection challenge to this disparate treatment on the ground that ―there
is no justification for depriving all people identified with having an intellectual or
developmental disability from the opportunity to learn of the right to a jury trial,
and to act on the information in accordance with their individual abilities.‖
I agree with Barrett. Although due process principles do not require
involuntary commitment procedures to include a jury trial advisement either for
persons who are mentally ill or for persons alleged to be mentally retarded, the
statutory requirement of an advisement for one but not the other is unsupported by
any facts or findings in the record before us. It is supported only by hypothesized
differences concerning the relative abilities of the two groups to understand an
advisement. To be sure, many potential committees who are alleged to be
mentally retarded have disabilities that preclude any meaningful comprehension of
a jury trial advisement. But that is not true of all such persons. Applying our state
equal protection guarantee (Cal. Const., art. I, § 7, subd. (a)) as informed by
federal constitutional precedent (Cleburne v. Cleburne Living Center, Inc. (1985)
473 U.S. 432 (Cleburne)), I conclude that there is no rational basis for denying
Barrett — simply because she was alleged to be mentally retarded — the same
advisement and the same dignity afforded by such an advisement to which other
persons with mental disabilities are statutorily entitled when facing prolonged
involuntary commitment.
Accordingly, I respectfully dissent from the court‘s denial of Barrett‘s
equal protection claim. The court says I would ―create a new state constitutional
jury trial advisement right for mentally retarded persons.‖ (Maj. opn., ante, at
p. 35, fn. 21.) To be clear, my view is not that persons with mental retardation
have a free-standing constitutional right to an advisement. As explained below,
my view is that persons with mental retardation are, on the record before us,
constitutionally entitled to the same statutory advisement right that the Legislature

2
has seen fit to provide to other persons with mental disabilities. But because I
agree with the Court of Appeal that any failure to advise was harmless under the
circumstances here, I concur in the court‘s affirmance of the judgment below.

I.
Christine Barrett was 27 years old and living in a private residence under
the care of the San Andreas Regional Center (Regional Center) when the district
attorney filed a petition under Welfare and Institutions Code section 6500 to
commit her as a person who is ―mentally retarded‖ and ―a danger to herself and
others.‖ (All undesignated statutory references are to the Welfare and Institutions
Code.) The petition was filed at the request of Betty Crane, the Regional Center‘s
service coordinator. The district attorney requested an evidentiary hearing and an
order that Barrett be committed to the custody of the Department of
Developmental Services (Department) for up to one year. The petition
incorporated by reference a declaration from Crane along with ―the assessment,
evaluations, reports, and other documents‖ of the Regional Center. These were
filed with the superior court, and we are treating them as confidential exhibits at
the request of the parties. The reports attached to the petition are the only expert
reports that appear in the record before us; no further reports were submitted by
the parties or obtained by the court pursuant to its authority under section 6504.5
to order a report by the director of the regional center or the director‘s designee.
The petition was filed on January 22, 2009. On that date, the court set a
hearing for March 9, 2009, and placed Barrett under the Department‘s care
pending resolution of the petition. Counsel for both parties appeared on March 9,
and the matter was continued to April 8 for an evidentiary hearing. The only
record of that hearing is a printed minute order with no substantive information. It

3
is not clear whether Barrett was present or received any information at that time
about the proceeding or her rights therein.
The proceedings resumed on April 8, 2009, in the presence of Barrett and
counsel for both parties. The district attorney‘s sole witness was Dr. Robert
Thomas, a psychologist for the Regional Center. Dr. Thomas testified that Barrett
had been previously diagnosed with mental retardation and that she fell within the
moderate range of mental retardation with an estimated IQ ―[i]n the 50‘s to 40‘s.‖
Although he did not conduct a formal cognitive assessment of Barrett, Dr. Thomas
based his opinion of Barrett‘s mental retardation on her case file, which included
school documents, psychological assessments, and medical documents with results
of cognitive tests. He also based his opinion on the fact that Barrett, though
initially deemed ineligible for Regional Center services, was accepted for such
services in 2001 upon a second review of her case. Dr. Thomas said he personally
evaluated Barrett once, during a visit to her apartment, and said he found it ―very
difficult to have a normal reciprocal conversation with her.‖
Dr. Thomas further testified that Barrett had also been diagnosed with a
range of psychiatric conditions, including schizophrenia, bipolar disorder, and
schizoaffective disorder. He said that individuals like Barrett with a dual
diagnosis of mental illness and mental retardation do not always receive the
treatment and supervision they need at the Regional Center because the staff there
is trained to address mental retardation, not to provide psychiatric treatment.
In addition, Dr. Thomas testified that Barrett was a danger to herself and
others based on his review of 20 to 30 incident reports dating back to 2001. He
said those reports included numerous accounts of violent behavior, including
physical assaults on Regional Center staff, destruction of property, and self-
mutilation. Dr. Thomas also said that ―[s]he has threatened suicide and verbalized
suicidal thoughts‖ based on one of the incident reports. Although Dr. Thomas

4
could not describe the severity of each incident based on the reports, he testified
that Barrett had the potential to cause serious injury to herself and to others
because of her inability to control her aggression.
When asked whether Barrett‘s mental illness or her mental retardation was
the cause of her dangerous behavior, Dr. Thomas said her mental retardation
limited her ability ―to understand the complexity of her disorder and the need for
treatment.‖ But he also said that given the extent of Barrett‘s mental and
developmental disorders, ―it would be very difficult to differentiate what behavior
is attributed to what particular disorder.‖ Dr. Thomas opined that the least
restrictive placement for Barrett was commitment to the secure treatment facility
where she had been placed pending disposition of the section 6500 petition.
Barrett testified on her own behalf. She spoke about her current placement,
stating a clear preference for placement in a group home rather than the secure
facility. She testified that she was taking medication that left her mind ―clearer‖
and helped her to stay calm. The record contains no indication that her attorney or
the court inquired into her ability to comprehend the proceedings or the rights to
which she was entitled. But Barrett made clear that she wanted to make her own
living and medical decisions: ―[I]f I had a choice in life I‘d have a choice to have
my freedom and I‘d have a choice to talk to my doctor.‖
Based on the testimony and reports, the trial court found that Barrett was
mentally retarded and dangerous under section 6500, and committed her to the
custody of the Department for one year. The court acknowledged that ―Ms.
Barrett presents a complex situation‖ in light of ―a series of mental health
diagnoses, many of which seem to be overlapping depending on various times.‖
The court concluded that her dangerousness is ―based upon mental retardation‖
and ―may also have an element of being based on her mental illness.‖

5
The record does not show that the court directly addressed Barrett at any
point in the proceedings to explain any rights she might have under state or federal
law, including the right to trial by jury. Among other things, Barrett contends that
the court‘s failure to advise her of the right to demand a jury trial violates the
principle of equal protection of the laws.
II.
California has a panoply of statutes providing for the involuntary
commitment of individuals who pose a threat to themselves and others. As we
recently observed, ―[d]ecisions by this court and the United States Supreme Court
. . . have 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.‖ (People v. McKee (2010) 47 Cal.4th 1172, 1199
[collecting cases].)
Most of California‘s civil commitment statutes apply to persons who have
been accused or convicted of a crime. (See §§ 1800 et seq. [mentally disordered
offenders discharged by juvenile authorities], 3000 et seq. [narcotics addicts],
6600 et seq. [sexually violent predators]; Pen. Code, §§ 1026–1027 [defendants
acquitted by reason of insanity]; Pen. Code, § 1367 [defendants found mentally
incompetent]; Pen., Code § 2960 et seq. [mentally disordered offenders].) Only
two involuntary commitment schemes — the Lanterman-Petris-Short Act (LPS
Act) (§ 5300 et seq.) and section 6500 — authorize the state to assert prolonged
custody over individuals through proceedings completely separate from the
juvenile and criminal justice systems. Section 5300 authorizes the commitment of
certain mentally ill persons for 180 days upon a finding of dangerousness. Section
6500 authorizes a renewable one-year commitment for persons found to be
mentally retarded and dangerous. Neither statute requires the state to show or
charge criminal conduct.

6
In framing her equal protection claim, Barrett contrasts the procedures for a
180-day commitment under the LPS Act with the procedures for a one-year
commitment under section 6500. The LPS Act expressly recognizes a right to a
jury trial (§§ 5302, 5303) and says ―the court shall advise the person named in the
petition . . . of his right to demand a jury trial‖ (§ 5302). Section 6500, by
contrast, does not mention the right to a jury trial or contain any advisement
requirement.
Today‘s opinion confirms that an individual facing commitment under
section 6500 has the right to trial by jury. (Maj. opn., ante, at pp. 14–15.) The
court endorses ―a long and unbroken line of California appellate court cases
holding or assuming — largely on the basis of federal and state equal protection
principles affecting fundamental interests — that persons alleged to be mentally
retarded and dangerous cannot be denied a jury trial altogether where jury trials
are granted by statute to persons alleged to be mentally impaired and dangerous
under comparable commitment laws.‖ (Id. at p. 14.) I join this holding of the
court.
The question here is whether persons facing commitment under section
6500 are also entitled, as a matter of equal protection, to the same advisement of
the right to trial by jury that is guaranteed to persons facing commitment under
section 5300. It is on this question that I disagree with the court‘s opinion.
Barrett additionally contends that section 5302‘s advisement requirement
means that the decision to waive a jury trial must be made personally by the
individual facing commitment under the LPS Act and that this right to personal
waiver extends to section 6500 proceedings as a matter of equal protection. The
court does not decide whether a right to personal waiver inheres in section 5302
(maj. opn., ante, at p. 30), and I also see no need to decide that issue. Separate and
apart from a right to personal waiver, a jury trial advisement has important value

7
to an individual facing involuntary commitment in at least two ways. First, an
advisement may prompt the individual to discuss jury trial concerns with counsel
if she is able. Even if counsel can be expected to consult with the client about
such concerns when counsel believes it is ―necessary or advisable‖ (maj. opn.,
ante, at p. 26), an advisement by the court may have the practical effect of
empowering the individual, at her own initiative, to participate in the decision with
counsel. Second, an advisement conveys respect for the individual‘s
understanding of and interest in a key issue — who will be the decision maker,
judge or jury? — in a proceeding that may inalterably shape the trajectory of her
life. In short, an advisement recognizes the dignity and agency of the individual
who appears before the court.
In addressing Barrett‘s equal protection claim, I begin in part III below by
discussing at some length the troubled history of our nation‘s and our state‘s
treatment of persons with mental disabilities. In part IV, I discuss the
shortcomings of the court‘s analysis of Barrett‘s claim. In part V, I elucidate the
proper standard of equal protection review and apply it to the statutory
classification at issue here.
As my analysis will make clear, the issue in this case is not whether people
who are mentally retarded generally have less cognitive ability than people who
are mentally ill. Barrett‘s claim specifically concerns the ability to understand a
jury trial advisement and involves a specific comparison between two groups:
mentally ill persons facing 180-day commitment under section 5300 and persons
alleged to be mentally retarded under section 6500. In light of historic and
continuing misperceptions concerning the ability of persons who are mentally
retarded to understand and influence their own fate, I believe the requirement of a
jury trial advisement for persons facing commitment under section 5300, but not

8
for persons facing commitment under section 6500, does not survive equal
protection scrutiny.
III.
To fully appreciate the nature of a section 6500 proceeding and the context
of Barrett‘s claim, it is helpful to begin with some history. Civil proceedings
against individuals alleged to be mentally retarded and dangerous have long been
thought necessary to protect society as well as the individual involved. But such
proceedings also have a regrettably long history of abuse.
A.
This history is familiar to those trained in the law. For it was Justice
Holmes‘s infamous opinion for the high court in Buck v. Bell (1927) 274 U.S. 200
that upheld a Virginia statute authorizing the compulsory ―sterilization of mental
defectives.‖ (Id. at p. 205.) That category included Carrie Buck, whom the court
described as ―a feeble-minded white woman‖ who was ―the daughter of a feeble-
minded mother‖ and ―the mother of an illegitimate feeble-minded child.‖ (Ibid.)
Echoing the eugenics theories popular at the time, Justice Holmes reasoned: ―We
have seen more than once that the public welfare may call upon the best citizens
for their lives. It would be strange if it could not call upon those who already sap
the strength of the State for these lesser sacrifices, often not felt to be such by
those concerned, in order to prevent our being swamped with incompetence. It is
better for all the world, if instead of waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The principle that sustains
compulsory vaccination is broad enough to cover cutting the Fallopian tubes.
[Citation.] Three generations of imbeciles are enough.‖ (Id. at p. 207.) With the
high court‘s endorsement, Virginia officials forcibly sterilized Buck along with
8,300 other inmates of state mental institutions between 1927 and 1974, when the

9
law was finally repealed. (See Lombardo, Three Generations, No Imbeciles:
Eugenics, the Supreme Court, and Buck v. Bell (2008) p. 294 (Lombardo).)
The high court‘s eight-to-one decision in Buck v. Bell reflected then
prevalent attitudes toward persons with mental disabilities. Twenty-five states,
including Virginia, had sterilization laws in place at the time Buck v. Bell was
decided, and seven others followed suit by 1937. (Lombardo, supra, at p. 294; see
ibid. [citing a 1965 study finding that more than 65,000 Americans were sterilized
under such laws].) It is tempting to say, from our contemporary perspective, that
such laws were the product of unthinking prejudice and blatant disregard for the
rights of the individuals affected. But to their proponents, the sterilization laws
had a genuinely benign purpose as an alternative to civil confinement. As the
Virginia Supreme Court explained in Buck‘s case: ―Unless sterilized by surgical
operation, she must be kept in the custodial care of the [State Colony for
Epileptics and Feeble-Minded] for thirty years, until she is sterilized by nature,
during which time she will be a charge upon the State. If sterilized under the law,
she could be given her liberty and secure a good home, under supervision, without
injury to society. Her welfare and that of society would be promoted by such
sterilization.‖ (Buck v. Bell (Va. 1925) 130 S.E. 516, 517–518, affd. (1927) 274
U.S. 200.)
Moreover, the Virginia statute was not devoid of procedural safeguards.
(See Buck v. Bell, supra, 274 U.S. at p. 206 [noting ―the very careful provisions by
which the act protects the patients from possible abuse‖].) The high court
described the statute‘s protections as follows: ―The superintendent [of the State
Colony for Epileptics and Feeble-Minded] first presents a petition to the special
board of directors of his hospital or colony, stating the facts and the grounds for
his opinion, verified by affidavit. Notice of the petition and of the time and place
of the hearing in the institution is to be served upon the inmate, and also upon his

10
guardian, and if there is no guardian the superintendent is to apply to the Circuit
Court of the County to appoint one. If the inmate is a minor notice also is to be
given to his parents, if any, with a copy of the petition. The board is to see to it
that the inmate may attend the hearings if desired by him or his guardian. The
evidence is all to be reduced to writing, and after the board has made its order for
or against the operation, the superintendent, or the inmate, or his guardian, may
appeal to the Circuit Court of the County. The Circuit Court may consider the
record of the board and the evidence before it and such other admissible evidence
as may be offered, and may affirm, revise, or reverse the order of the board and
enter such order as it deems just. Finally any party may apply to the Supreme
Court of Appeals, which, if it grants the appeal, is to hear the case upon the record
of the trial in the Circuit Court and may enter such order as it thinks the Circuit
Court should have entered.‖ (Id. at pp. 206–207.)
Although the statute did not include a right to counsel, the protections it did
afford led the high court to conclude that ―[t]here can be no doubt that so far as
procedure is concerned the rights of the patient are most carefully considered.‖
(Buck v. Bell, supra, 274 U.S. at p. 207.) And yet, careful scholars of Buck‘s life
have come to the conclusion that neither she nor her daughter Vivian was ―feeble-
minded‖ at all. (See Lombardo, supra, at p. 139 [citing school records showing
Buck ―was a normal child‖]; Brunius, Better for All the World: The Secret
History of Forced Sterilization and America‘s Quest for Racial Purity (2006)
pp. 76–77 [Vivian completed four semesters of school and made the honor roll
before her death at age eight]; Smith & Nelson, The Sterilization of Carrie Buck
(1989) p. 194 [reviewing letters written by Buck after her discharge from the
Colony and concluding that ―neither mother or daughter was illiterate despite
Oliver Wendell Holmes‘ comments‖].) Instead, it appears that Buck‘s real
―deficiency‖ was that she was an unwed mother, likely as a result of rape, and this

11
was a point of embarrassment and shame for Buck‘s foster parents, who filed a
petition supporting Buck‘s sterilization. (See Lombardo, supra, at pp. 139–140;
Brunius, supra, at pp. 51–53; Smith & Nelson, supra, at p. 5.)
Although the doctrinal underpinnings of Buck v. Bell have been eroded (see
Skinner v. Oklahoma (1942) 316 U.S. 535), the case remains a cautionary tale in
two respects. First, although state intervention into the lives of individuals with
mental disabilities has often been rationalized on the ground that it is for their own
good or the good of society, unfounded assumptions of incapacity and a legacy of
paternalism have resulted in serious ―depriv[ations] of . . . basic liberty‖ with
―subtle, far-reaching and devastating effects.‖ (Skinner, at p. 541.) Second, even
where such intervention is not inherently unlawful, laws directed at controlling
individuals with mental disabilities have been prone to overbroad application
despite what appear to be ―very careful provisions . . . protect[ing] the patients
from possible abuse‖ (Buck v. Bell, supra, 274 U.S. at p. 206).
B.
California was not immune to the eugenics theories underlying the Virginia
legislation at issue in Buck v. Bell. Indeed, by some accounts, California was a
pioneer. During the first half of the 20th century, California‘s approach to persons
who were mentally ill or developmentally disabled centered on institutionalizing
such individuals or otherwise isolating them from the rest of society. A broad
range of individuals deemed ―feeble-minded‖ or mentally deficient were subject to
sterilization. As treatments for mental illness advanced, California made efforts to
differentiate mental conditions viewed as treatable from those viewed as
hereditary or immutable. Over time, isolation and warehousing gradually gave
way to treatment and habilitation. In the 1960s, the Legislature enacted
substantive and procedural limits on the state‘s authority to commit individuals

12
with mental illness. Protections for persons with mental retardation followed the
same general trajectory but lagged behind those afforded to the mentally ill.
In 1909, California became the third state in the nation to pass a
sterilization bill. (Stats. 1909, ch. 720, § 1, pp. 1093–1094; see Stern, Eugenic
Nation: Faults and Frontiers of Better Breeding in Modern America (2005) p. 99.)
California‘s law was ―perhaps the most expansive legislation of all state acts
permitting sterilization.‖ (Lombardo, supra, at p. 26.) It allowed ―any inmate‖ of
any state hospital, the California Home for the Care and Training of Feeble-
Minded Children, or any state prison to be ―asexualized‖ whenever a panel of
medical officials determined ―it would be beneficial and conducive to the benefit
of the physical, mental or moral condition‖ of that individual. (Stats. 1909,
ch. 720, § 1, p. 1093.) Although the law applied only to prisoners who had been
imprisoned ―at least two times for some sexual offense, or at least three times for
any other crime‖ (id. at p. 1094), it placed no substantive limits on the sterilization
of persons deemed ―feeble-minded.‖
The 1909 act was repealed in 1913 and replaced with legislation applying
to three discrete groups. Before release or discharge, inmates of state hospitals for
the insane ―afflicted with hereditary insanity or incurable chronic mania or
dementia‖ could be sterilized with or without their consent at the discretion of ―the
state commission in lunacy . . . after a careful investigation of all the
circumstances of the case.‖ (Stats. 1913, ch. 363, § 1, pp. 775–776.) Recidivists
committed to state prison for sexual crimes could also sterilized whenever the
resident physician determined it would be ―to the benefit of the physical, mental or
moral condition‖ of the inmate. (Id., § 2, p. 776.) Finally, any ―idiot or fool‖
could be sterilized by the superintendent of any state hospital with the written
consent of a parent or appointed guardian. (Id., § 3, p. 776.) Upon written request

13
of the parent or guardian, the operation was to be performed ―without charge.‖
(Ibid.)
The 1913 law was repealed four years later and replaced with two separate
statutes. The first statute, enacted in May 1917, expanded the state‘s authority to
sterilize inmates of mental hospitals before their release if they were found to be
afflicted with hereditary mental disease, ―the various grades of feeble
mindedness,‖ or ―perversion or marked departures from normal mentality or . . .
disease of a syphilitic nature.‖ (Stats. 1917, ch. 489, § 1, p. 571.) The second
statute, enacted in June 1917, established ―an institution to be known as the Pacific
colony‖ devoted to ―the care, confinement and instruction of feeble-minded and
epileptic persons.‖ (Stats. 1917, ch. 776, § 1, p. 1623 & preamble.) The statute
defined ― ‗feeble-minded‘ ‖ to include persons who were ―not insane‖ but ―so
mentally deficient that they are incapable of managing themselves and their affairs
independently, with ordinary prudence, or of being taught to do so, and who
require supervision, control, and care, for their own welfare, or for the welfare of
others, or for the welfare of the community.‖ (Id., § 16, p. 1626.) The June 1917
statute marked the first effort by the Legislature to differentiate between persons
classified as ―insane‖ (mentally ill) and those classified as ―feeble-minded‖
(mentally retarded) in the context of civil commitment.
The June 1917 statute created a procedure for involuntary commitment that
later became section 6500. ―[A]ny parent, guardian or other person charged with
the support of a supposedly feeble-minded person‖ could petition the court for
admission of the individual to the Pacific colony. (Stats. 1917, ch. 776, § 17,
p. 1626.) The petitioner had to submit a verified affidavit ―disclos[ing] his reasons
for supposing such person to be eligible for admission.‖ (Ibid.) Peace officers
could also petition for commitment, but they were required to provide written

14
notice of the petition to the ―parent, guardian or other person charged with such
support‖ of the proposed committee, if known. (Ibid.)
If a person was found to be ―feeble-minded,‖ the judge could order the
person committed indefinitely to the Pacific colony, so long as the person had
been a resident of California for at least a year. (Stats. 1917, ch. 776, § 19,
pp. 1626–1627.) The only provision for discharge or release was at the discretion
of the institution‘s board of trustees. (Id., § 41, p. 1631.) Before discharge, the
board of trustees could order sterilization ―with or without the consent of the
inmate‖ upon a recommendation of the superintendent based on ―careful
investigation of all the circumstances.‖ (Id., § 42, p. 1631.) The statute declared
that such sterilization ―shall be lawful‖ and deemed the trustees and ―any person
participating in the operation‖ immune from civil or criminal liability. (Ibid.) In
1937, the Legislature added a provision requiring the court in a commitment
proceeding to give ―due notice of the hearing of the petition‖ to the ―alleged
incompetent.‖ (Stats. 1937, ch. 369, pp. 1005, 1137.)
During the 1950s, improved medical treatments and increased public
awareness of the ―scandalous conditions in state mental institutions‖ gave rise to a
deinstitutionalization movement. (Levy & Rubenstein, The Rights of People with
Mental Disabilities (1996) p. 19 [citing Deutsch, The Shame of the States
(1948)].) From midcentury through the 1970s, California took a series of
important if halting steps that would, at one point, establish our state as a leader in
protecting the civil rights of persons with mental disabilities. As explained below,
reforms applicable to persons with mental illness focused on procedural rights that
gave such individuals the opportunity to participate in and make decisions about
their care to the extent possible. By contrast, reforms applicable to persons with
mental retardation began with substantive limits on the state‘s authority to order

15
involuntary commitment. Although procedural protections followed, they
generally lagged behind the protections afforded to persons with mental illness.
The first step toward reform came in 1951, when California enacted a new
sterilization scheme for all persons with mental disabilities under the jurisdiction
of the Department of Mental Hygiene. (Stats. 1951, ch. 552, § 1, pp. 1706–1707.)
For the first time, the Legislature required written notice to the patient and his or
her guardians of any proposed sterilization and created a procedure for individuals
to object and seek judicial review. (Ibid.) If the patient or a family member filed
a written objection within 30 days, the department director was required to ―make
full inquiry into the case, and may hold a hearing.‖ (Id., p. 1707.) If the director
decided that the patient should be sterilized despite the patient‘s or the family‘s
objection, the director had to provide written notice of the decision and the right to
petition the superior court for review. Whether due to this law or to other factors,
the use of sterilization in California dropped significantly. After sterilizing over
19,000 individuals between 1909 and 1949, the state performed only 981
procedures between 1949 and 1959. (Lombardo, supra, at pp. 241–242.)
In 1965, the commitment scheme for ―feeble-minded‖ persons was
recodified, and the term ―feeble-minded‖ was replaced with ―mentally deficient
persons.‖ (Stats. 1965, ch. 391, § 4, pp. 1630, 1668 [former § 5590].) Individuals
who were adjudged ―mentally deficient‖ and who had resided in the state for at
least one year could be ordered committed to the Department of Mental Hygiene
for placement in the Sonoma State Home or the Pacific colony. (Id., p. 1670.)
Individuals who had been in the state for less than one year could also be
committed to the department ―for the purpose of transportation of such person to
the state of his legal residence.‖ (Ibid.)
In 1967, California enacted the LPS Act in order ―[t]o end the
inappropriate, indefinite, and involuntary commitment of mentally disordered

16
persons and persons impaired by chronic alcoholism, and to eliminate legal
disabilities.‖ (Stats. 1967, ch. 1667, § 36, pp. 4053, 4704 [former § 5001, subd.
(a)].) The LPS Act created a tiered scheme for involuntary commitment of
individuals with mental illness. Upon ―reasonable cause,‖ peace officers or other
designated professionals could place an individual believed to be dangerous or
gravely disabled into custody for 72-hour treatment and evaluation. (Id.,
pp. 4077–4078 [former § 5150].) Staff at the facility could then certify the
individual for an additional 14-day involuntary intensive treatment (id., pp. 4085–
4088 [former § 5250]), subject to judicial review (id., pp. 4088–4089 [former
§ 5275 et seq.]). After 14 days, an individual could be committed for an additional
90 days only after a hearing to determine whether the individual presented ―an
imminent threat of substantial physical harm to others.‖ (Id., pp. 4089–4091
[former § 5300].) The statute required the court to appoint counsel to represent
the person in that hearing, and the statute required counsel to advise the proposed
committee of his or her rights. (Id., p. 4090 [former § 5302].) Alternatively, an
individual found to be ―gravely disabled‖ could be committed through a one-year
conservatorship. (Id., pp. 4093–4098.) Before such commitment, the individual
had a right to demand a jury trial. (Id., p. 4094 [former § 5350, subd. (d)].)
Many of the LPS Act‘s procedures for commitment of mentally ill persons
remain in place today (see post, at p. 21), although the 90-day commitment has
been extended to 180 days (see § 5300 [current]). By all accounts, the LPS Act
was a genuine step forward in protecting the rights of such individuals facing civil
commitment. ―The LPS Act has been called a ‗Magna Carta for the Mentally Ill‘
that ‗established the most progressive . . . commitment procedures in the
country.‘ ‖ (In re Qawi (2004) 32 Cal.4th 1, 17 [quoting Assem. Subcom. on
Mental Health Services, Dilemma of Mental Commitments in California (1978)
foreword by Assemblyman Louis Papan].)

17
In contrast to the commitment procedures for persons with mental illness,
the LPS Act simply recodified the existing commitment scheme for ―mentally
deficient persons,‖ moving the statute to section 6500 of the Welfare and
Institutions Code and replacing the phrase ―mentally deficient persons‖ with
― ‗mentally retarded persons.‘ ‖ (Stats. 1967, ch. 1667, § 37, pp. 4107, 4134–
4137.) Whereas the prior version of the statute applied to ―[a]ny mentally
deficient person,‖ the statute now provided: ―Any mentally retarded person
requiring hospitalization may be committed to the Department of Mental Hygiene
. . . .‖ (Id., p. 4134 [former § 6501].) The LPS Act did not explain what
conditions might ―requir[e] hospitalization‖; it simply provided that the court
could order a hospitalization commitment simply upon a finding that the person
was ―mentally retarded.‖ (Id., p. 4136.) The LPS Act did not give individuals
facing commitment under section 6500 a right to counsel.
As enacted in 1967, the LPS Act also recodified the sterilization procedures
established in 1951, authorizing the sterilization of individuals with hereditary
mental disease, mental retardation, and other ―[m]arked departures from normal
mentality.‖ (Stats. 1967, ch. 1667, § 40, pp. 4146, 4155 [former § 7254].) The
sterilization law was not repealed until 1979. (Stats. 1979, ch. 552, § 1, p. 1762.)
In 1970, the Legislature enacted section former 6500.1, establishing the
first substantive limit on the state‘s authority to involuntarily commit individuals
with developmental disabilities. The act provided: ―On and after July 1, 1971, no
mentally retarded person may be committed to the Department of Mental Hygiene
pursuant to this article, unless he is a danger to himself or others.‖ (Stats. 1970,
ch. 351, § 3, p. 765.)
Even as the 1970 act imposed a requirement of dangerousness as a
substantive limit on the involuntary commitment of persons with mental
retardation, a second bill passed later that year established an additional

18
procedural protection for persons with mental illness. In addition to providing the
right to counsel, the Legislature beginning in 1970 required trial courts to advise
mentally ill persons facing prolonged commitment of their right to demand a jury
trial. (Stats. 1970, ch. 1627, § 17, p. 3443.) This advisement requirement, now
codified at section 5302, is the basis of Barrett‘s equal protection claim.
It was not until 1975 that the Legislature provided the right to counsel in
section 6500 proceedings. (Stats. 1975, ch. 694, § 27, p. 1651.) The 1975 act also
imposed a substantive time limit on commitment, providing that any order for
commitment would automatically expire after one year. (Ibid.) Any party
authorized to submit an original petition for commitment could file subsequent
petitions for additional one-year periods of commitment, and each subsequent
petition would follow the same procedures applicable to the original petition.
(Ibid.) These provisions remain in place today. (See § 6500.)
Ten years after the LPS Act was passed, the Legislature in 1977 extended
the LPS Act‘s goal of ending ―inappropriate, indefinite, and involuntary
commitment‖ to individuals with developmental disabilities, a term defined to
include mental retardation. (Stats. 1977, ch. 1167, § 1, p. 3824 [former § 5001].)
At the same time, the Legislature enacted the Lanterman Developmental
Disabilities Services Act (Lanterman Act). (Stats. 1977, ch. 1252, § 550, p. 4521.)
The Lanterman Act expanded community-based treatment and habilitation
services for persons with a wide range of developmental disabilities, and it
declared that ―[p]ersons with developmental disabilities have the same legal rights
and responsibilities guaranteed all other individuals,‖ including ―[a] right to
dignity‖ (id., pp. 4521–4522, p. 4712, codified at § 4502, subd. (b))

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/844167. Public record. Not legal advice.