Cole v. Super. Ct.

1
Filed 9/12/24 (review denied 1/15/25; reposted with Supreme Court order and statement)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DEARI COLE,
Petitioner,
v.
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY,
Respondent;
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Real Party in Interest.
A169804
(Contra Costa County
Super. Ct. No. P2400263)
Deari Cole was committed to a developmental center under Welfare
and Institutions Code section 6500, which governs commitments of those
with developmental disabilities who are a danger to themselves or others.1 A
petition to extend the commitment was filed close to the end of the
commitment period, too late for trial to take place before it expired, and Cole
was held pending trial. Cole brought this petition for writ of mandate or
habeas corpus, contending principles of equal protection demanded his
release pending trial.
1 All undesignated statutory references are to the Welfare and
Institutions Code.

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2
Cole has since been released from custody for unrelated reasons, and
the matter is now moot. Nevertheless, because the issues he raises are of
public importance and are capable of recurring yet escaping review, we
exercise our discretion to consider them. Having done so, we reject his
arguments on the merits before dismissing the petition as moot. (See People
v. G.A. (2023) 93 Cal.App.5th 1126, 1128; People v. Sweeney (2009) 175
Cal.App.4th 210, 214.)
FACTUAL AND PROCEDURAL BACKGROUND
Cole was charged with felony possession of a firearm and ammunition,
second degree burglary, and two counts of petty theft, and in July 2022 he
was found incompetent to stand trial and referred to the Regional Center of
the East Bay. On September 30, 2022, the People filed a petition to initiate a
commit under section 6500, alleging Cole had a developmental disability
(more specifically, a diagnosed intellectual disability) and that he was a
danger to himself or others. The trial court found Cole had a developmental
disability, that as a result he could not understand the nature and purpose of
the proceedings against him and assist counsel, and that he was a danger to
himself or others as defined in section 6500, subdivision (a)(1). The court
ordered a conservatorship for one year, through February 1, 2024. On the
Regional Center’s recommendation, the court ordered Cole placed in the
Porterville Developmental Center.
On January 30, 2024, two days before the commitment was set to
expire, the People filed a petition to extend it. On the same date the trial
court ordered Cole held pending the trial on the recommitment petition.
Cole filed a petition for writ of mandate and/or habeas corpus on
February 23, 2024, alleging that principles of equal protection required his
release pending trial.

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We summarily denied the petition on March 6, 2024. Cole petitioned
for review, and on April 24 our high court granted the petition and
transferred the matter to us with directions to vacate our order denying the
writ petition and to issue an order to show cause—which we have done.
DISCUSSION
Cole argues that because the extended commitment petition was filed
too late for trial on the petition to be held before expiration of his current
commitment under section 6500, equal protection demanded his release from
custody, a right granted to those committed under two other civil
commitment statutes.
Statutory Background
California has multiple procedures for involuntary commitment of
those with various mental problems who pose a threat to their own welfare or
the safety of others. (People v. Barrett (2012) 54 Cal.4th 1081, 1093
(Barrett).) At issue here are three of these statutory schemes. The first is the
one under which Cole was confined, section 6500, which authorizes civil
commitment of “[a] person with a developmental disability . . . if the person is
found to be a danger to self or others.” (§ 6500, subd. (b)(1).) Developmental
disability, in this context, means a “disability that originates before an
individual attains 18 years of age, continues, or can be expected to continue,
indefinitely, and constitutes a substantial disability for that individual”; this
definition expressly encompasses an intellectual disability. (§§ 4512,
subd. (a)(1), 6500, subd. (a)(2).) A person who falls within the statutory
scheme may be committed for “suitable treatment and habilitation services,”
meaning “the least restrictive residential placement necessary to achieve the
purposes of treatment.” (§ 6509, subd. (a).) A commitment order under
section 6500 expires a year after it is made. (§ 6500, subd. (b)(1)(A).)

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Subsequent petitions may be brought for additional periods of commitment,
in which case “the procedures followed shall be the same as with the initial
petition for commitment.” (§ 6500, subd. (b)(1)(B).)
Among those procedures, the hearing on a subsequent petition must be
set “no more than 60 days after the filing of the petition,” and it may be
continued only on a showing of good cause. (§ 6503.) Pending the hearing,
the court may order the person placed in a suitable placement, including a
state developmental center. (§ 6506.) Thus, this statutory scheme does not
require a recommitment petition to be filed in time for the hearing to take
place during the initial commitment period, and it authorizes the court to
retain the person in a placement pending the hearing even after the
commitment expires.
Different procedures are available under two other statutory schemes
to which Cole directs our attention. One of them, for offenders found not
guilty by reason of insanity (NGI), authorizes a commitment to extend past
the person’s maximum term of confinement by increments of two years, and
requires trial on a petition for extended commitment to begin “no later than
30 calendar days prior to the time the person would otherwise have been
released, unless that time is waived by the person or unless good cause is
shown.” (Pen. Code, § 1026.5, subd. (b)(4), see also subds. (b)(1), (b)(8).)
The remaining statutory scheme is for offenders with a mental health
disorder (OMHD),2 a category that encompasses those with a “severe mental
2 Such offenders were formerly known as mentally disordered offenders
(MDO’s). We will adopt the current usage even when discussing cases that
used the term MDO. (See Pen. Code, § 2962, subd. (d)(3); Conservatorship of
Eric B. (2022) 12 Cal.5th 1085, 1095, fn. 3 (Eric B.).) Similarly, except when
quoting a case that uses the term “mentally retarded,” we instead use the
terms “developmental disability” or “intellectual disability” currently found in

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health disorder that is not in remission or that cannot be kept in remission
without treatment,” and which is defined to exclude “intellectual disability or
other developmental disabilities.” (Pen. Code, § 2962, subds. (a)(1), (a)(2).)
Such offenders may be committed to the State Department of State Hospitals
for a period of one year for necessary treatment. (§§ 2962, 2970, subd. (b).) A
petition for a recommitment may be brought before termination of the
commitment, and trial on the petition must begin at least 30 calendar days
before the person would have been released, unless there is a waiver or a
showing of good cause. (Pen. Code, § 2972, subds. (a)(2), (e).)
Central to the case before us, in the case of both NGI’s and OMHD’s, if
an extension petition is filed before the expiration of the commitment but,
without good cause, too late to allow a reasonable time to prepare for trial
before the commitment period ends, the defendant must be released pending
the trial. (People v. Lara (2010) 48 Cal.4th 216, 229–236 (Lara); People v.
Cobb (2010) 48 Cal.4th 243, 252 (Cobb).)3 That procedure stands in contrast
to a petition to extend a section 6500 commitment, which must be filed before
expiration of the commitment period but need not be heard for up to 60 days
thereafter, during which time the person may be required to remain in
custodial placement. (§§ 6503, 6506; Cramer v. Gillermina R. (1981) 125
Cal.App.3d 380, 393 [those in § 6500 commitment “shall be reviewed no more
than fourteen months after their last judicial review”].)
the pertinent statutes. (See Stats. 2012, ch. 25, § 19 [amending § 6500],
Stats. 2013, ch. 289, § 3 [amending § 4512].)
3 A defendant entitled to release under this rule may nevertheless be
subject to civil confinement in a therapeutic setting under the Lanterman-
Petris-Short Act (§ 5000 et seq; LPS Act). (Lara, supra, 48 Cal.4th at p. 236,
Cobb, supra, 48 Cal.4th at p. 252, fn. 3.)

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Principles of Equal Protection
Both the federal and the California Constitutions guarantee equal
protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a).) This guarantee is intended to “ ‘ensure[] that the government does
not treat a group of people unequally without some justification.’ ” (People v.
Hardin (2024) 15 Cal.5th 834, 847 (Hardin).)
Traditionally, California cases have engaged in a two-part inquiry to
determine if there has been a violation of the guarantee of equal protection.
First, the courts asked whether a classification affected two or more groups
that were similarly situated in an unequal manner. (People v. Chatman
(2018) 4 Cal.5th 277, 289.) If the groups were “similarly situated in all
material respects,” the court would then consider whether the challenged
classification was justified under the appropriate standard of review. (Id. at
p. 289.) In the first step, the inquiry was “not whether persons are similarly
situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th
228, 253.)
Recently, in Hardin, our high court modified this rule to eliminate the
first step of the analysis “when plaintiffs challenge laws drawing distinctions
between identifiable groups or classes of persons, on the basis that the
distinctions drawn are inconsistent with equal protection,” that is, when the
classification appears on the face of the law. (Hardin, supra, 15 Cal.5th at
p. 850.) In such a case, the court held, “courts no longer need to ask at the
threshold whether the two groups are similarly situated for purposes of the
law in question. The only pertinent inquiry is whether the challenged
difference in treatment is adequately justified under the applicable standard
of review.” (Id. at pp. 850–851.) But, the court went on to explain, it did not

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call into question any earlier decisions “that purported to dispose of an equal
protection challenge upon deciding that the challenged disparate treatment
did not involve groups that were similarly situated for the purposes of the
law in question”; in fact, “the conclusion in each of those cases could just as
well have been cast as a conclusion about whether the difference in treatment
was adequately justified under the applicable standard of review.” (Id. at
p. 851, citing People v. Salazar (2016) 63 Cal.4th 214, 227 [defendants who
commit capital crime after earlier conviction of juvenile murder in superior
court not similarly situated to those whose earlier murder was adjudicated in
juvenile court, because Legislature could conclude their culpability was
different]; People v. Johnson (1992) 3 Cal.4th 1183, 1242–1243 [capital
defendants not similarly situated to those with ordinary sentencing
enhancements because of aggravating circumstance of capital offense].)
The classifications at issue here appear on the face of the laws in
question, and we will apply the analysis set out in Hardin. As the party
challenging the law, Cole bears the burden to show the different treatment
for different groups is not justified. (See Hardin, supra, 15 Cal.5th at p. 851.)
Where, as here, the facts are undisputed, we review independently whether
the classifications offend equal protection. (People v. Nolasco (2021) 67
Cal.App.5th 209, 217 (Nolasco).)
Analysis
Cole’s central argument is that he was deprived of equal protection
because, as one committed under section 6500, he was held in custody after
his commitment expired while awaiting trial on the extended commitment
petition, whereas an OMHD or NGI committee would not have been. The
first question we face is the level of scrutiny appropriate to analyzing this
claim. Cole urges us to apply strict scrutiny because the fundamental right

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to liberty is at stake. The Attorney General advocates for the more
deferential rational basis standard.
The Attorney General relies primarily on two cases, our high court’s
decision in Barrett and a Court of Appeal decision in Nolasco, a case that
follows Barrett. Because Nolasco more closely tracks the issues before us, we
begin there. The question in Nolasco was whether civil commitment schemes
that peg the end of a recommitment period to different events offend equal
protection. In the case of a so-called Murphy conservatorship under the LPS
Act,4 a recommitment order must terminate by the first anniversary of the
initial commitment order (§ 5361, subd. (b)), but in a section 6500
commitment, it runs through the anniversary of the recommitment order
(§ 6500, subd. (b)(1)). This difference results in a longer recommitment
period for persons committed under section 6500 when, as is common, a
recommitment order is not made until after the initial commitment has
expired. (Nolasco, supra, 67 Cal.App.5th at p. 215.) The Nolasco court set
forth the then-governing two-step process for evaluating such a claim, then
considered the level of scrutiny appropriate to determine the constitutional
sufficiency of the government’s justification for the differential treatment.
(Id. at pp. 220–221.)
The Nolasco court noted that the law on this point was “in a state of
flux.” (Nolasco, supra, 67 Cal.App.5th at p. 224.) California courts had
traditionally applied strict scrutiny to claims of disparate treatment in
connection with civil commitment. (See, e.g., In re Moye (1978) 22 Cal.3d
4 A Murphy conservatorship is used in certain circumstances where a
person has been ruled incompetent to stand trial and “ ‘represents a
substantial danger of physical harm to others by reason of a mental disease,
defect, or disorder.’ ” (Eric B., supra, 12 Cal.5th at p. 1096; § 5008,
subd. (h)(1)(B).)

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457, 465, superseded by statute on other grounds as stated in People v.
Superior Court (Frezier) (2020) 54 Cal.App.5th 652, 662–663 [Attorney
General concedes strict scrutiny applies in challenge to indefinite
confinement of NGI’s]; Conservatorship of Hofferber (1980) 28 Cal.3d 161,
171, fn. 8 [LPS conservatorship implicates a fundamental liberty interest].)
But more recently the California Supreme Court applied two other
approaches in analogous cases without expressly overruling the earlier
authorities. (Nolasco, at pp. 224–225.) Specifically, when considering a
challenge by a sexually violent predator (SVP) to his indefinite commitment
in People v. McKee (2010) 47 Cal.4th 1172 (McKee), superseded by statute on
another ground as stated in People v. McCloud (2021) 63 Cal.App.5th 1, 15,
the high court appeared to apply a standard that was “less rigorous than
strict scrutiny but more onerous than rational basis scrutiny.” (Nolasco, at
pp. 224–225.) The Court applied not “the ‘usual judicial deference to
legislative findings’ consonant with rational basis scrutiny,” but rather
“ ‘independent judgment of the facts to ascertain whether the legislative body
“ ‘has drawn reasonable inferences based on substantial evidence.’ ” ’ ”
(Nolasco, at p. 225, quoting McKee, at p. 1206; see McKee, at pp. 1184–1185.)
And more recently, the Nolasco court went on, in Barrett the high court
applied rational basis review in deciding whether equal protection required a
personal waiver of the right to jury trial by a person subject to commitment
proceedings under section 6500, as was required of those subject to LPS
proceedings. (Nolasco, at p. 225, citing Barrett, supra, 54 Cal.4th at p. 1111,
fn. 21; see Barrett, at pp. 1106–1107.)
These varying standards, according to the Nolasco court, had created
confusion in the courts of appeal and led to inconsistent results. (Nolasco,
supra, 67 Cal.App.5th at p. 225.) The Nolasco court explained that it chose

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“to follow Barrett—and hence to apply rational basis scrutiny—because
Barrett is the most recent pronouncement by our Supreme Court as to the
pertinent level of scrutiny to apply when comparing divergent civil
commitment procedures” and because it was the authority most on-point.
(Nolasco, at p. 225.)5
Bearing in mind these authorities, we are not persuaded that strict
scrutiny applies here. Strict scrutiny is proper when a disparity in treatment
implicates a suspect class or a fundamental right. (Flint, supra, 22
Cal.App.5th at p. 990.) Otherwise, the challenger must show that the
challenged law “is not rationally related to any legitimate government
purpose.” (Ibid.) The developmentally disabled are not a suspect class for
these purposes. (Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1851,
citing Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 445–446,
and Adoption of Kay C. (1991) 228 Cal.App.3d 741, 753–754; Barrett, supra,
54 Cal.4th at p. 1111, fn. 21 [“we have correctly applied the United States
Supreme Court’s prevailing ‘rational basis’ standard for analyzing the equal
protection claims of mentally retarded persons”].) Nor are we persuaded that
5 In Eric B., our Supreme Court noted that appellate courts have
reached different conclusions on the appropriate level of scrutiny for
evaluating claims of disparate treatment in civil commitments, but it left
resolution of the issue for another day. (Eric B., supra, 12 Cal.5th at
pp. 1107–1108, citing Nolasco, supra, 67 Cal.App.5th at p. 225 and People. v.
Flint (2018) 22 Cal.App.5th 983, 992–993 (Flint).) That day may be
approaching. In People v. Cannon (2022) 85 Cal.App.5th 786, 798–799, our
colleagues in Division Five followed Nolasco and People v. Magana (2022) 76
Cal.App.5th 310, 324, in concluding rational basis review applied in
determining whether the Sexually Violent Predators Act (§§ 6600 et seq.)
violates equal protection by not requiring a personal waiver of a jury trial
right, as other civil commitment statutes require. The California Supreme
Court has granted review in Cannon. (People v. Cannon, review granted
Feb. 15, 2023, S277995.)

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the current challenge implicates a fundamental right in a manner that
triggers the use of strict scrutiny. The question is not whether a person
should be civilly committed—that is, deprived of liberty—but the outer limits
of the duration of that confinement—that is, whether it may continue for an
additional 60 days after the commitment expires, pending hearing on a
petition to extend the commitment.
The court in People v. Barner (2024) 100 Cal.App.5th 642 (Barner)
made this point in a different context. The appellant had been found not
guilty of a crime by reason of insanity and was committed to the State
Department of State Hospitals for an indeterminate life term. (Id. at p. 645.)
He contended this commitment deprived him of his right to equal protection
because, unlike an insanity acquittee with a determinate term of
commitment, he must remain in physical custody until his sanity was
restored even if he did not represent a substantial danger to others. (Id. at
p. 662.) He contended the court should apply strict scrutiny because the
length of the term of commitment affected his personal liberty, a
fundamental interest. (Id. at p. 664.) The appellate court instead applied
rational basis review, analogizing to case law holding that a defendant has no
fundamental interest in a specific term of imprisonment and explaining that
“where the issue is not whether a deprivation of an individual’s liberty will
occur, but rather the duration of that deprivation, rational basis review is
appropriate because ‘ “ ‘ “the power to define crimes and fix penalties is
vested exclusively in the legislative branch,” ’ ” ’ ” and “the issue here is the
duration of the commitment period, not whether insanity acquittees will be
deprived of their liberty.” (Ibid.; see People v. Wilkinson (2004) 33 Cal.4th
821, 840–841; People v. K.P. (2018) 30 Cal.App.5th 331, 343 [“where the issue

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is not whether a deprivation of an individual’s liberty will occur, but rather
the duration of that deprivation, rational basis review is appropriate”].)
This conclusion is consistent with our high court’s explanation in
McKee that “different classes of individuals civilly committed need not be
treated identically. . . . [Although] fundamental distinctions between classes
of individuals subject to civil commitment are subject to strict scrutiny[,] . . .
the government[ has a] legitimate capacity to make reasonable distinctions[,]
. . . ‘[including v]ariation of the length and conditions of confinement,
depending on degrees of danger reasonably perceived as to special classes of
persons.’ ” (McKee, supra, 47 Cal.4th at p. 1210, italics added.) The question
is whether the “distinctions in classes of persons subject to civil commitment
are reasonable and factually based.” (Ibid.) The high court summarized,
“[w]hen a constitutional right, such as the right to liberty from involuntary
confinement, is at stake, the usual judicial deference to legislative findings
gives way to an exercise of independent judgment of the facts to ascertain
whether the legislative body ‘ “has drawn reasonable inferences based on
substantial evidence.” ’ ” (Id. at p. 1206.) The Court emphasized it was not
holding that “ ‘every detail of every civil commitment program is subject to
strict scrutiny.’ ” (Id. at p. 1210, fn. 13.)
So too here. The issue in this case is not whether Cole would be
deprived of his liberty; that determination was made when he was committed
under section 6500. The issue is the disparity in whether the confinement
may continue for a limited period while awaiting a hearing on a petition to
extend his commitment. This, in our view, is not a “fundamental distinction[]
between classes of individuals subject to civil commitment” but rather a
reasonable variation in the length of the confinement, a matter not subject to
strict scrutiny. (McKee, supra, 47 Cal.4th at p. 1210; see Barner, supra, 100

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Cal.App.5th at p. 664; People v. K.P., supra, 30 Cal.App.5th at p. 343.)
Indeed, even the two statutory schemes to which Cole compares his own vary
in the length of a commitment permitted before a court must consider
whether it should be renewed: two years in the case of NGI’s (Pen. Code,
§ 1026.5, subd. (b)(8)), and one year in the case of OMHD’s (Pen. Code,
§ 2970, subd. (b)). The fourteen months effectively allowed for a person
committed under section 6500 falls comfortably within this range. In the
circumstances of this case, we conclude some form of rational basis review is
appropriate.
We recognize that when our high court compared the term of
confinement for SVP’s against that for other ex-felons subject to civil
commitment in McKee, it suggested a more searching type of inquiry than is
customary for rational basis review because liberty from involuntary
confinement is at stake. (McKee, supra, 47 Cal.4th at p. 1184.) In such a
case, according to the McKee court, “the usual judicial deference to legislative
findings gives way to an exercise of independent judgment of the facts to
ascertain whether the legislative body ‘ “has drawn reasonable inferences
based on substantial evidence.” ’ ” (Id. at p. 1206.) Justice Liu has similarly
advocated for a robust application of rational basis review for statutory
classifications based on developmental disability. (See Barrett, supra, 54
Cal.4th at pp. 1137–1145 (conc. & dis. opn. of Liu, J.) [criticizing
“conventional rational basis review” in challenge comparing right to jury trial
advisement in civil commitment schemes, and endorsing stricter approach
that requires record support for government’s proffered rationale for
differential treatment].)
We conclude there is no equal protection violation under either
conventional rational basis review or this more searching permutation. We

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start from the premise that “different classes of individuals civilly committed
need not be treated identically.” (McKee, supra, 47 Cal.4th at p. 1210.) And
in Barrett, our high court explained why differences between dangerous
developmentally disabled persons committed under section 6500 and
dangerous mentally disordered persons committed under the LPS Act justify
the differential requirements for waiver of the right to a jury trial. Under the
two-step test then used, the Court explained that, even assuming the two
groups were 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.” (Barrett, supra, 54 Cal.4th at p. 1108.)
The Court reached this conclusion because of differences between the
individuals covered by the respective statutory schemes. The LPS Act
provides for detention and treatment of certain people with “mental
disorders,” a term construed in the case law to mean “conditions that may
arise suddenly and, for the first time, in adulthood,” that may be
“intermittent or short lived” and require only temporary treatment, and that
do not necessarily deprive the person of the ability to function in a competent
manner. (Barrett, supra, 54 Cal.4th at pp. 1108–1109.) By contrast, for those
alleged to fall within the scope of section 6500, “the commitment process
itself raises substantial doubts about their cognitive and intellectual
functioning sufficient to limit the personal and procedural role they play” in
proceedings. (Id. at p. 1109.)
A similar distinction informs our analysis as well. For purposes of
section 6500, a developmental disability is a substantial disability that
originates in childhood and continues indefinitely. (§ 4512, subd. (a)(1); see
§ 6500, subd. (a)(2).) The other two statutes at issue govern extended

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commitment of NGI’s, who pose a substantial danger of harm to others “by
reason of a mental disease, defect, or disorder” (Pen. Code, § 1026.5,
subd. (b)(1)), and OMHD’s, who have “a severe mental health disorder that is
not in remission or that cannot be kept in remission without treatment” (Pen.
Code, § 2962, subd. (a)(1); see People v. Allen (2007) 42 Cal.4th 91, 99).
Our Supreme Court has held that, without a time waiver or good cause,
the OHMD statutory scheme does not allow continued confinement when
trial on an extension petition does not begin before the scheduled release
date. (Cobb, supra, 48 Cal.4th at p. 252.) In so doing, it emphasized that the
criteria for continued commitment “relate, not to the past, but to the
defendant’s current condition”: that is, the questions are whether the
defendant has a severe mental disorder that is not in remission and whether
the defendant continues to pose a substantial danger to others. (Ibid.) This
emphasis on a defendant’s current condition is consistent with the high
court’s explanation in Barrett that mental illness and related disorders may
be intermittent or short-lived. (Barrett, supra, 54 Cal.4th at p. 1108.)
The Legislature could reasonably provide different procedures for those
with a developmental disability under section 6500, which by definition can
be expected to continue indefinitely. (§ 4512, subd. (a)(1); see § 6500,
subd. (a)(2).) As the court in Nolasco explained, “[b]ecause a person’s mental
illness can come and go, there is a greater danger that delay in evaluating his
condition—and delay in his release arising from the time it takes to litigate
recommitment—could result in the unnecessary commitment of a person who
no longer suffers from a mental illness that poses a danger,” but that in
contrast, “[c]hances are scant that a person will ‘recover’ from a
developmental disability and hence there is less danger of their unnecessarily

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prolonged commitment.” (Nolasco, supra, 67 Cal.App.5th at p. 223, italics
added.)
We bear in mind that section 6500 does not allow for an open-ended
delay in the recommitment hearing, but rather provides for continued
confinement during a 60-day window within which the hearing must be held,
absent a showing of good cause. (§§ 6500, subd. (b)(1)(B), 6503, 6506.) Cole
complains that the result is “a system of de facto 14-month commitments.”
But in light of the differences between those with developmental disabilities
and mental illness, we are not persuaded the Legislature lacked a rational
basis for allowing continued confinement during a 14-month period before
renewal of a section 6500 commitment, instead of the 12-month period for
OMHD’s (Pen. Code, § 2970, subd. (b)) or the two-year period for NGI’s (Pen.
Code, § 1026.5, subd. (b)(8)).
In reaching this conclusion, we do not discount the seriousness of
depriving those with developmental disabilities of their freedom or the risk of
abuses, particularly in light of unacceptable practices that have taken place
in the past in this state and elsewhere. (See Barrett, supra, 54 Cal.4th at
pp. 1120–1125 (conc. & dis. opn. of Liu, J.).) We also recognize the possibility
that, although a person does not “ ‘recover; ” from a developmental disability
(Nolasco, supra, 67 Cal.App.5th at p. 223), that person might become less
dangerous to self or others (perhaps as a result of treatment), and thus no
longer fall within the scope of section 6500. (See § 6500, subd. (b)(1).)
Nevertheless, in light of the lower level of risk of an unnecessarily prolonged
commitment under section 6500, the directive that a commitment be to the
least restrictive placement that will achieve the purposes of treatment, the
limited time between expiration of the commitment and the hearing on a
recommitment petition (in the absence of a showing of good cause), and the

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fact that the permissible length of confinement under section 6500—even
accounting for the possibility of 60 additional days–is well within the range of
the statutory schemes to which Cole compares it, we find no violation of equal
protection in the disparate treatment he challenges.
DISPOSITION
Having concluded Cole was not deprived of his constitutional right to
equal protection, we dismiss the petition for writ of mandate or habeas
corpus as moot.
TUCHER, P. J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
Cole v. Superior Court (A169804)

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Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Julia Campins
Counsel: Ellen McDonnell, Public Defender, Jeremy Price, Taina
Gomez-Ferretti, and Christy Wills Pierce, Deputy Public
Defenders, for Petitioner
Diana Becton, District Attorney, Angela Dib, Anthony
Augustyn, Brianna Goodfellow, Deputy District
Attorneys for Real Party in Interest

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Court of Appeal, First Appellate District, Division Three - No. A169804
S287432
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________
DEARI COLE, Petitioner,
v.
SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;
THE PEOPLE, Real Party in Interest.
________________________________________________________________________
The petition for review is denied.
(See Concurring Statement by Liu, J., joined by Evans, J.)
_________/s/___________________
Chief Justice

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1
COLE v. SUPERIOR COURT
S287432
Concurring Statement by Justice Liu
Petitioner Deari Cole was civilly committed to Porterville
Developmental Center in 2023 under Welfare and Institutions
Code section 6500 after the superior court found that he had a
developmental disability, that he could not understand the
proceedings against him due to his disability, and that he was a
danger to himself and others. (All undesignated statutory
references are to this code.) Cole’s commitment order
automatically expired on February 1, 2024. (§ 6500,
subd. (b)(1)(A) [commitment order for persons with a
developmental disability “shall expire automatically” after “one
year”].) On January 30, 2024, two days before the order’s
expiration date, the District Attorney filed a petition to
recommit Cole for another 12 months. Cole’s counsel objected to
the timing of the District Attorney’s filing and requested that
Cole be released pending trial on the recommitment petition.
The court denied his request. Relying primarily on section 6506,
which authorizes interim placement at a suitable facility, the
court ordered Cole to be detained at Porterville pending trial set
for February 27, 2024. Cole was eventually released on April
30, 2024, 15 months after his original commitment order.
Cole alleges that under state and federal equal protection
principles, an individual whose section 6500 commitment has
automatically expired must be released pending trial when,

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COLE v. SUPERIOR COURT
Liu, J., concurring statement upon denial of review
2
without good cause, a recommitment petition is filed too late for
a fair trial to occur during the commitment period, unless the
commitment provisions of the Lanterman-Petris-Short (LPS)
Act apply. He reasons that had he been subject to the statutory
schemes for offenders found not guilty by reason of insanity
(NGI) or those with a mental health disorder (OMHD) (Pen.
Code, §§ 1026.5, subd. (b), 2972), a late filing without good cause
would have entitled him to release pending trial on the
recommitment petition. (People v. Lara (2010) 48 Cal.4th 216,
236 [NGI]); People v. Cobb (2010) 48 Cal.4th 244, 252 [OMHD].)
Unlike the statutory schemes for NGI or OMHD civil
commitments, section 6500 is silent on the timing of filing a
recommitment petition. (Cf. Pen. Code, §§ 1026.5, subd. (b)(2),
(4) [NGI recommitment petition must generally be filed no less
than 90 days before expiration of original commitment, and trial
must generally begin 30 days before termination of
commitment], 2972, subd. (a)(2) [trial on an OMHD
recommitment petition must generally begin 30 days before
termination of commitment].) A person with a developmental
disability who is found to be a danger to self or others is subject
to a one-year commitment that “expires automatically.” (§ 6500,
subd. (b)(1)(A).) A hearing on a recommitment petition must
occur within 60 days of the filing of the petition (§§ 6503, 6500,
subd. (b)(1)(B)), and such a person may be placed in a suitable
facility pending the hearing (§ 6506).
Despite the lack of a deadline for filing a recommitment
petition, it seems clear that the Legislature intended for persons
committed under section 6500 to be subject to a one-year
commitment. The statute unambiguously says “[a]n order of
commitment . . . shall expire automatically one year after the
order of commitment is made.” (§ 6500, subd. (b)(1)(A).) Cole’s

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COLE v. SUPERIOR COURT
Liu, J., concurring statement upon denial of review
3
original commitment was extended beyond one year because the
prosecution did not file for recommitment until two days before
his release. No good cause for this last-minute filing appears in
the record. It seems questionable whether the Legislature
intended to authorize confinement of section 6500 committees
for 60 days or more beyond the one-year limit simply based on a
district attorney’s decision to petition for recommitment close to
the expiration date, with no showing of good cause required. In
light of the plain language of section 6500, subdivision (b)(1)(A),
there is a good argument that any confinement while awaiting
trial on a recommitment petition (§ 6506) must occur within, not
beyond, the one-year commitment period. This argument is not
diminished by the fact that an individual’s developmental
disability may “be expected to continue indefinitely.” (Cole v.
Superior Court (2024) 104 Cal.App.5th 1280, 1295.) In many
cases, persons with developmental disabilities can be responsive
to treatment, habilitation, and care such that they no longer
pose a danger to themselves or others. (People v. G.A. (2023)
93 Cal.App.5th 1126, 1132 [for section 6500 commitments, “ ‘due
process demands proof of current dangerousness’ ”].)
Further percolation may prompt us to take up this issue
in a future case. In the meantime, the Legislature may wish to
clarify whether section 6500 committees may be confined
beyond one year in the manner that Cole was here. (Cf. People
v. Barrett (2012) 54 Cal.4th 1081, 1120 (conc. & dis. opn. of Liu,
J.) [“Civil proceedings against individuals alleged to be
[developmentally disabled] and dangerous . . . have a
regrettably long history of abuse.”].)
LIU, J.

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COLE v. SUPERIOR COURT
Liu, J., concurring statement upon denial of review
4
I Concur:
EVANS, J.

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