P v. Dunley (4th Dist., Div.2) Defendants in MDO Proceedings May Not Be Compelled to Testify.

Mr. Dunley was an ill man.  Due to various diseases he thought himself the flesh of God.  Following the completion of his criminal sentence, he was repeatedly civilly committed as a mentally disordered offender (MDO).  During his commitment extension trial in 2014, he was called as a prosecution witness and admitted, after many confused and non-responsive answers, that he was mentally ill and dangerous.  He appealed.

California has at least three proceedings by which people who suffer from mental diseases may be locked up in mental hospitals (or euphemistically, "subject to a civil commitment").  These three proceedings are for persons found not guilty by reason of insanity (NGI), persons deemed to be sexually violent predators (SVP), and, like Dunley, mentally disordered offenders (MDO).

Despite carrying the possibility of a lifetime behind locked doors, none of these three is criminal in nature.  Rather they are civil proceedings established for purposes other than punishment.  As they are not criminal, there is no Fifth Amendment right against self incrimination.  The rub is that California statutory law confers to NGI defendants the right against compelled self incrimination.  Dunley argues that MDO defendants are similarly situated to NGI defendants and that the different treatment is not justified.

A Fourth District panel agrees with Dunley.

The analysis is clear and linear.  Precedent holds that SVP defendants are similarly situated to NGI defendants, meaning SVP defendants have a right against self incrimination.  Another line of cases holds that MDO defendants are similar to SVP defendants.  The transitive property then means that MDO defendants are similarly situated to NGI defendants.

This being established, the issue shifts to whether California's different treatment of NGI defendants and MDO defendants can survive a strict scrutiny analysis.    Surprisingly, the AG doesn't even try to justify the different treatment.  The panel does take pity on the state however and states they are not foreclosed from making such arguments in the future.