How to review the burden of proof in a sexual assault case?

We begin by considering how to review appellant's claim. Respondent contends appellant has forfeited the burden of proof issue by failing to object. We do not view the failure to object issue as cleanly as respondent contends. Rather than simply failing to object, appellant's counsel provided the court with an improper burden of proof when the court questioned what standard it should apply. Further, while this could be considered invited error, we see no tactical reason why counsel would, unprompted by any dispute, suggest a burden of proof that was lower than the clear and convincing standard. We need not resolve this issue, however, for regardless of the basis for claiming forfeiture we will exercise our discretion to review the allegation of error in this case. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so."].) We note that, were we to find the issue forfeited, we would have proceeded to consider the issue under appellant's ineffective assistance of counsel claim.¹

Next, recognizing that respondent concedes the proper burden of proof in involuntary medication cases under the Sexually Violent Predators Act is clear and convincing evidence, we consider whether the trial court's application of an erroneous standard is harmless error. Under People v. Watson (1956) 46 Cal.2d 818, 836, one demonstrating state-law error must show "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."

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