Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. MH98047, Howard H. Shore, Judge, considered with a petition for habeas corpus.
O'ROURKE, J.
Arnold Cedric Bacon appeals from an order recommitting him to the custody of the California Department of Mental Health (the DMH) for an indeterminate term under provisions of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq., hereafter the SVPA) that took effect after the District Attorney's office filed its recommitment petition. On the People's amended petition seeking to recommit Bacon to an indeterminate term, the trial court issued its recommitment order without holding a trial. On appeal, Bacon contends: (1) the amended SVPA does not apply to him in part because he was not in the custody of the Department of Corrections; (2) the trial court was required to conduct a jury trial on the question of whether he was a sexually violent predator (SVP); (3) the amended SVPA's indeterminate commitment term and the differing protection for persons seeking judicial review with and without the Director of Mental Health's authorization violate state and federal guarantees of equal protection; and (4) the burden-shifting provisions of sections 6605 and 6608 violate due process. In his petition for writ of habeas corpus, Bacon contends he was prejudiced by constitutionally ineffective representation from his appointed counsel in connection with his probable cause hearing, in part because his counsel did not file motions to suppress evidence of uncharged offenses, actuarials and other prosecution evidence.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
We conclude the trial court erred by retroactively converting Bacon's prior two-year commitment term to an indeterminate term without a jury trial and without a determination of Bacon's current status as an SVP. Because on remand Bacon will have an opportunity to make his evidentiary challenges at a new trial and he has not shown prejudice from his counsel's assertedly ineffective assistance at his probable cause hearing, we deny his petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2003, Bacon was found to be an SVP and committed to a two-year period of confinement with the DMH as authorized by former section 6004 of the SVPA. In February 2005, the San Diego County District Attorney's office filed a petition to recommit Bacon to another two-year term. After several continances, the court in November 2005 found probable cause that Bacon was an SVP. While the District Attorney's petition was pending, the Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVPs. (See Stats. 2006, ch. 337, §§ 55, 56, 62, pp. 2180-2182; People v. Shields (2007) 155 Cal.App.4th 559, 562 (Shields).) In the November 2006 general election, voters approved Proposition 83, which also provided for indeterminate terms of commitment for SVPs and went into effect on November 8, 2006. (Prop. 83, §§ 27, 28; see Cal. Const. art. II, § 10, subd. (a); Shields, at pp. 562-563.)
We summarized the facts and evidence underlying this finding in our unpublished opinion, People v. Bacon (Sept. 30, 2004, D042021) [nonpub. opn.].
On November 13, 2006, the People filed an amended petition to commence "further proceedings that are called for by . . . section 6600 et seq." to determine whether Bacon was an SVP and should be committed to an indeterminate term. Bacon demurred to the petition, arguing it should be dismissed because (1) the amendments to the SVPA repealed the statutory authorization to extend commitments of persons committed for two years under the former statute and (2) the amended statute contained no unequivocal manifestation of legislative intent to apply retroactively and thus retroactive application would violate his state and federal due process rights. In response, the People argued in part that Bacon was not entitled to a recommitment hearing because he had already received a hearing under section 6604 and his commitment was automatically converted to an indeterminate term. It argued the court could deem Bacon to have begun his indeterminate term as of the date of the initial order of commitment in April 2003 without violating the U.S. Constitution's ex post facto clause. Finally, the People argued Bacon could petition the court under either section 6605 or 6608 for unconditional release into the community. Alternatively, the People requested the court set a hearing on its amended petition in accordance with sections 6602 and 6603 through 6604.1.
Following arguments on the matter, the court ordered that Bacon's prior commitment be converted to an indeterminate commitment under section 6604. Bacon timely filed a notice of appeal.
At the hearing on the matter, after rejecting any impediment to its ruling under the ex post facto clause, the court stated: "I, after carefully evaluating the statutory language and the case law, find no legal prohibition to the conclusion that the Legislature, by the language of the statute and by deleting any reference to recommitment, meant for all existing persons who had been lawfully committed under the proper definitions and burdens of proof by jury trial or by court trial under the SVPA statute to have their previous two-year commitments transformed by legislation to indeterminate commitments. With the understanding that they could take advantage of the provisions in the statute to seek release with the burden of proof at such release hearings being on the state to prove beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior as charged."
DISCUSSION
I. Amendments to SVPA
This court recently summarized Proposition 83's changes to the SVPA in Shields, supra, 155 Cal.App.4th 559. We explained that under Proposition 83, "former section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement (subject to the SVP's right to petition for release)." (Shields, at p. 562.) Section 6604 of the SVPA now provides in relevant part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement. . . ." (Italics added.) Proposition 83 did not change section 6604's requirement that a person's commitment as an SVP be proved at trial beyond a reasonable doubt. (§ 6604.)
"The statements of intent contained in Proposition 83 confirm the obvious intent of the Legislature in amending section 6604. The Proposition expressly sets forth the intent to strengthen SVP confinement laws: ' "[E]xisting laws that provide for the commitment and control of sexually violent predators must be strengthened and improved. [¶] . . . [¶] It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders." ' [Citation.] More specifically, Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release: ' "The People find and declare each of the following: [¶] . . . [¶] (k) California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." ' " (Shields, supra, 155 Cal.App.4th at p. 564, quoting Historical and Statutory Notes, 47A West's Ann. Pen. Code (2007 supp.) foll. § 209, p. 430 [now Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. § 209, p. 52] & Prop. 83, §§ 2(h), 2(k), 31.)
Section 6604.1, as amended by Proposition 83, provides that the indeterminate term begins on the date on which the court issues the "initial order of commitment" pursuant to section 6604. (§ 6604.1, subd. (a).) It continues to refer to extended commitments, providing that "[t]he provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed for purposes of extended commitments. The rights, requirements, and procedures set forth in Section 6603 shall apply to all commitment proceedings." (§ 6604.1, subd. (b).)
II. Application of SVPA
Bacon contends he may not be committed for an indeterminate term under the SVPA because the statute no longer applies to him. He first reasons, citing section 6601, that only those currently in the custody of the Department of Corrections are eligible for commitment under the current indeterminate commitment scheme; that the amended statute by its terms does not apply to him because at the time the February 2005 and November 2006 petitions were filed, he was in the custody of the DMH, where he remains today. Second, he argues neither the Legislature nor the court have "constitutional authority" to revive his commitment and declare him an SVP by action of law without a new finding that he is currently dangerous and mentally ill. Bacon argues we should not apply the reasoning of the California Supreme Court in Baker v. Superior Court (1984) 35 Cal.3d 663, in which the court in a similar context permitted mentally disordered sex offender (MDSO) recommitments under repealed provisions of the MDSO statutes (former sections 6300 et seq.). He maintains if we were to apply Baker's reasoning, it should permit him to be recommitted under only the former SVPA scheme. He asks for release on his expired commitment, or alternatively for this court to reverse the judgment and remand the matter for proceedings under the former SVPA.
Section 6601 provides in part: "Whenever the Director of Corrections determines that an individual who is in custody under the jurisdiction of the Department of Corrections, and who is either serving a determinate prison sentence or whose parole has been revoked, may be a sexually violent predator, the director shall, at least six months prior to that individual's scheduled date for release from prison, refer the person for evaluation in accordance with this section. However, if the inmate was received by the department with less than nine months of his or her sentence to serve, or if the inmate's release date is modified by judicial or administrative action, the director may refer the person for evaluation in accordance with this section at a date that is less than six months prior to the inmate's scheduled release date." (§ 6601, subd. (a)(1).)
These points were rejected in both Shields, supra, 155 Cal.App.4th 559 and Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez). In Shields, the appellant, who was facing an petition to extend his commitment for an indeterminate term under the amended SVPA, contended the trial court lacked jurisdiction to find him to be an SVP in his commitment proceeding because the amended SVPA "no longer contained an express statutory provision authorizing recommitment of a person previously committed to a two-year term of confinement as an SVP." (Shields, at pp. 562, 563.) This court rejected the argument as contrary to the clear intent of the SVPA amendments to enhance, not restrict, confinement of persons determined to be SVPs. (Id. at p. 563.) Thus, his assertions failed under settled principles that statutory language should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend, and statutory provisions may be added by implication when compelled by necessity and supported by firm evidence of the drafters' true intent. (Id. at p. 564, citing People v. Pieters (1991) 52 Cal.3d 894, 898-899 & People v. Guzman (2005) 35 Cal.4th 577, 587.) We concluded the indeterminate term provision in section 6604 applied to persons confined for two-year terms under former section 6604, like Bacon here, and the trial court had jurisdiction to adjudicate the People's recommitment petition. (Shields, at p. 564.)
In Bourquez, the petitioners, all of whom had petitions to extend their commitments pending when Proposition 83 was passed, argued their petitions should be dismissed because (1) there was no statutory authority for petitions to extend commitment and (2) the SVPA authorized a petition only for those in custody of the Department of Corrections and thus new petitions for commitment could not be filed against them because they had previously been committed to the custody of the Department of Mental Health. (Bourquez, supra, 156 Cal.App.4th at pp.1279-1280, 1283.) Though the Court of Appeal acknowledged that Proposition 83 had deleted provisions of the SVPA for extending commitments without an express saving clause, it rejected these arguments. (Id. at pp. 1283, 1285-1288.) Looking to Baker v. Superior Court, supra, 35 Cal.3d 663 and Sekt v. Justice's Court (1945) 26 Cal.2d 297, it held an express saving clause to permit proceedings to extend commitments was not necessary because such a clause was implied by the Legislature's and voters' intent to continue and strengthen the provisions of commitment of those found to be SVPs. (Bourquez, at pp. 1285-1288.) Though the court acknowledged that certain indicia of legislative intent was stronger in Baker than in the present case (Bourquez, 156 Cal.App.4th at p. 1285), it nevertheless distinguished Baker and held the facts in Sekt compelled it to find an implied savings clause: "Here, unlike in Baker, supra, 35 Cal.3d 663 . . ., the provisions for civil commitment of certain sex offenders were not repealed; involuntary commitments under the SVPA are to continue. Under the new law, now Proposition 83, the term of commitment is an indeterminate period of commitment in place of renewable two-year commitments. The purpose of the change was 'to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.' [Citation.] The change also served to reduce costs for SVP evaluations and court testimony. [Citation.] After Proposition 83, once a person is committed as an SVP, he remains in custody until he successfully bears the burden of proving he is no longer an SVP or the Department of Mental Health determines he longer meets the definition of an SVP. [Citations.] The People no longer have to prove the person is an SVP to extend the commitment. The effect of the amendment, therefore, is to make it easier to keep one adjudicated an SVP committed and in custody. This change is in keeping with the general intent of Proposition 83 'to strengthen and improve the laws that punish and control sexual offenders.' [¶] By providing for indeterminate terms of commitment, it cannot reasonably be concluded that the voters, by passing Proposition 83, or the Legislature in enacting SB 1128, intended to release those previously committed as SVPs. Indeed, such a conclusion would 'ascribe to the Legislature [and voters] an intent that the very purpose of the amendment demonstrates could not have existed.' [Citation.] The very nature of SB 1128 and Proposition 83, to strengthen punishment and control of sexual offenders, compels the conclusion that the Legislature and the voters must have intended that the new law should operate prospectively and that those previously found to be SVPs should remain subject to the provisions for extended commitments under the old law. 'To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature [and voters].' " (Bourquez, 156 Cal.App.4th at p. 1287, quoting Sekt v. Justice's Court, at pp. 309, 310.) Having found an implied savings clause, the Bourquez court held the superior court had jurisdiction to proceed on the recommitment petitions. (Bourquez, at p. 1288.)
"When the Legislature repeals a statute but intends to save the rights of litigants in pending actions, it may accomplish that purpose by including an express saving clause in the repealing act. [Citation.] An express saving clause is not, however, the only means to save rights in pending actions." (Bourquez, supra, 156 Cal.App.4th at p. 1284.) " ' "[I]f it can be gathered from any act on the same subject passed by the [L]egislature at the same session that it was the legislative intent that pending proceedings should be saved, it will be sufficient to effect that purpose." ' " (Ibid., citing Traub v. Edwards (1940) 38 Cal.App.2d 719, 721-722; see also In re Pedro T. (1994) 8 Cal.4th 1041, 1048-1049 [express saving clause is unnecessary; what is required is that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it].)
We agree with the reasoning of both Shields and Bourquez, and reject Bacon's contention regarding the plain language of the amended SVPA given the express intent of the voters to strengthen the provisions for commitment of those determined to be SVPs. To the extent his argument as to the superior court's "constitutional authority" to apply the amended SVPA to him raises a question about the trial court's jurisdiction to act, it is unavailing for the reasons expressed in those opinions.
III. Right to Recommitment Jury Trial
Bacon contends section 6602 of the amended SVPA mandates that he undergo a new commitment jury trial before he is subjected to indefinite commitment; that the trial court's order converting his two-year term under the SVPA to an indeterminate term without a new trial or finding that he currently suffers from a diagnosed mental disorder defies the express terms of the statute. Bacon argues the court's procedure violates the state and federal constitutions because a currently diagnosed mental disorder is a necessary prerequisite for any valid commitment.
The People respond that the trial court's ruling effectuated the intent of the amended SVPA, which was to make release proceedings for SVPs, including new trials, contingent on the SVP filing a petition for release. They argue that under the plain meaning of section 6604, the only event required to justify an indeterminate term is a single prior finding by a court or jury that a person was an SVP, and that the prior jury finding in Bacon's case was sufficient even if it occurred before enactment of the amended SVPA, without another trial. As support for the proffered electorate's intent, the People point to various sources of statutory history including the "Official Voter Information Guide" to Proposition 83, which stated that the amended SVPA "[c]hanges [the] current two-year involuntary civil commitment for a sexually violent predator to an indeterminate commitment, subject to annual review by the Director of Mental Health and subsequent ability of [the] sexually violent predator to petition the court for [the] sexually violent predator's conditional release or unconditional discharge." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) Official Title and Summary of Prop. 83, p. 42.)
The District Attorney also cites to the Legislative Counsel's Digest to S.B. 1128 and the Senate Rules Committee Analysis of S.B. 1128.
We asked the parties to brief the Sixth District's opinion in People v. Whaley (2008) 160 Cal.App.4th 779, review den. June 18, 2008 (Whaley), which was decided after completion of briefing in this matter. In Whaley, the appellant had been determined to be an SVP and first committed to a two-year term in January 1999, with three extended two-year terms thereafter, the last to expire in January 2007. (Whaley, 160 Cal.App.4th at pp. 784, 788.) Following the passage of Proposition 83, the People moved to convert the appellant's first commitment from a two-year to an indeterminate term, and in May 2007, the trial court entered an order retroactively converting his first January 1999 commitment to an indeterminate term under section 6604.1, subdivision (a) without a trial. (Whaley, at pp. 789-790.) On appeal, the appellant argued that sections 6604 and 6604.1 did not support the trial court's order because neither statute expressly or impliedly stated that existing commitments were to become indeterminate. (Id. at p. 791.) He also contended the trial court lacked jurisdiction to modify the 1999 commitment order, and raised various constitutional attacks to the amended SVPA. (Ibid.) The People in part argued amended sections 6604 and 6604.1 of the SVPA demonstrated an intent by the electorate to apply an indeterminate term retroactively as shown by the relevant statutory history. (Ibid.)
The Sixth District Court of Appeal found the retroactivity question determinative in the appellant's favor. (Whaley, 160 Cal.App.4th at p. 792.) Relying on general rules on the prospective operation of new statutes and Bourquez, supra, 156 Cal.App.4th 1275, it held the amendments to sections 6604 and 6604.1 providing for an indeterminate term apply prospectively; that the language in voter pamphlets and the amended statute did not contain the type of unequivocal and inflexible statements of retroactivity required for retrospective operation. (Whaley, at pp. 792, 796-797.) Bourquez held that application of the indeterminate commitment term to pending petitions to extend commitment was not a retroactive application of the law. (Bourquez, 156 Cal.App.4th at pp. 1288-1289; Whaley, at p. 795.) Because Proposition 83 was "entirely silent on the question of retroactivity," the Bourquez court presumed it operated prospectively. The Whaley court adopted Bourquez's reasoning: " 'In determining whether someone is [a sexually violent predator], the last event necessary is the person's mental state at the time of the commitment. For pending petitions, the person's mental state will be determined after the passage of Proposition 83, at the time of commitment.' [Citation.] The court further recognized that '[t]he requirement that a commitment under the SVPA be based on a currently diagnosed mental disorder applies to proceedings to extend a commitment. Such proceedings are not a review hearing or a continuation of an earlier proceeding. [Citation.] Rather, an extension hearing is a new and independent proceeding at which the petitioner must prove the person meets the criteria of an SVP. [Citation.] The petitioner must prove the person is an SVP, not that the person is still one. [Citation.]' [Citation.] The court concluded: 'Because a proceeding to extend commitment under the SVPA focuses on the person's current mental state, applying the indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law. [Citation.] Applying Proposition 83 to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.' " (Whaley, 160 Cal.App.4th at p. 796, quoting Bourquez, 156 Cal.App.4th at p. 1289.)
Whaley rejected the People's argument that section 6604.1's reference to an "initial" order provided a sufficiently clear, unequivocal or inflexible assertion that the electorate intended retroactive application of an indeterminate term for those already committed under the SVPA. (Whaley, supra, 160 Cal.App.4th at p. 798.) The court held that section 6604.1's reference to an "initial" order, which had appeared in the former statute, did not mean the electorate intended the indeterminate term to be retroactive to the date of the first commitment order. Rather, it concluded the language must be construed as providing for an indeterminate term for an order of commitment imposed after the passage of Proposition 83: "Under this construction, if a person has been determined, by proof beyond a reasonable doubt, to be a sexually violent predator and committed to an indeterminate term pursuant to the amendment to section 6604, then that indeterminate term will begin, pursuant to section 6604.1, subdivision (a), when the court issues that order of commitment. In other words, we construe the reference to an 'initial' order in section 6604.1, subdivision (a), as reflecting when the commitment term begins for a person first committed to an indeterminate term, rather than demonstrating intent by the voters to retroactively apply an indeterminate term to those already committed." (Whaley, 160 Cal.App.4th at p. 798.)
The Whaley court found its construction of the statute supported by the fact that under the SVPA, a new extension hearing proceeding "essentially requires a new determination of the individual's status as a sexually violent predator" and also by the SVPA's contemplation of later proceedings for conditional release or unconditional discharge that occur after the "initial" commitment proceeding. (Whaley, supra, 160 Cal.App.4th at pp. 798-800.) "The continued reference to an 'initial' commitment order in amended section 6604.1, subdivision (a), therefore reflects a distinction between the various SVPA proceedings, rather than a clear indication that the electorate intended to retroactively impose an indeterminate term on those already committed under the SVPA." (Whaley, at p. 800.)
Whaley also rejected the People's assertion that the voter pamphlet for Proposition 83 reflected a contrary statutory interpretation, concluding that none of the statements or summaries demonstrated a clear intent to apply the amendments retroactively. (Whaley, supra, 160 Cal.App.4th at pp. 800-801.) "[B]ecause Proposition 83 is silent on retroactivity, and there is no clear indication of voter intent to apply the amendments retroactively, the general presumption of a prospective application in the absence of a clear contrary indication must apply to the amendments to sections 6604 and 6604.1." (Whaley, at p. 801.)
Whaley therefore reversed the trial court's order: "[A] person already committed as a sexually violent predator before the amendments to sections 6604 and 6604.1 in 2006 is entitled to an extension proceeding at which there would be a new determination of the person's status as a sexually violent predator. We therefore conclude that Whaley may not be committed to an indeterminate term of commitment retroactive to the first order committing him as a sexually violent predator in 1999." (Whaley, supra, 160 Cal.App.4th at p. 803.)
Bacon did not originally expressly raise a claim of improper retroactive application of the SVPA by the trial court in this case; however, he maintains in his supplemental briefing that we should apply Whaley and remand the matter for trial. The District Attorney invites us to reject Whaley for the reasons advanced by the prosecution in that opinion. However, it concedes that if we are to reverse the order and remand for further proceedings, the People would bear the burden of proof at a new SVP trial.
Because we agree with Whaley's analysis and conclusion, we decline the People's invitation. The trial court's reliance on the SVPA amendments to modify Bacon's previously adjudicated two-year commitment term to an indeterminate term without a new trial or determination that Bacon is currently an SVP changes the legal consequences of the initial SVP determination and thus constitutes an impermissible retroactive application of the statute. (See Whaley, supra, 160 Cal.App.4th 779; Bourquez, supra, 156 Cal.App.4th at p. 1288 [application of law is retroactive if it attaches new legal consequences to an event or conduct that was completed before the law's effective date]; People v. Carroll (2007) 158 Cal.App.4th 503, 523-524 [same].) We therefore reverse the trial court's order. Because the court imposed an indeterminate term without a jury trial and the procedural rights afforded under the SVPA, the court must conduct a jury trial on the issue of Bacon's current SVP status under the amended SVPA. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162 [present inability to control sexually violent behavior is the standard for an SVP commitment order]; People v. Carroll, at pp. 513, 514 [significant point with respect to retroactivity is not the filing of the petition but trial and adjudication under the SVPA].)
IV. Equal Protection Arguments
Bacon contends that the indeterminate commitment term in the SVPA violates state and federal guarantees of equal protection because defendants under the amended SVPA are treated differently from those offenders civilly committed under the mentally disordered offender (MDO) statute (Pen. Code, § 2960, et seq.) and the scheme for those found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.). Although Bacon concedes differences in the relevant commitment schemes, he asserts these defendants are similarly situated because the purposes of the SVP, MDO and NGI commitment schemes are the same; as he claims, to "protect the public from those who are both mentally ill and potentially violent." He also argues there is no rational basis or compelling interest to treat SVPs differently from MDO or NGI detainees by denying them an absolute right to periodic review of their status. These arguments are presently before the California Supreme Court in People v. McKee (2008) 160 Cal.App.4th 1517 (review granted July 9, 2008, S162823).
"The initial inquiry in any equal protection analysis is whether persons are 'similarly situated for purposes of the law challenged.' " (In re Lemanuel C. (2007) 41 Cal.4th 33, 47; Cooley v. Superior Court (2002)29 Cal.4th 228, 253 (Cooley).) The question is whether the state has adopted a classification that affects similarly situated groups in an unequal manner. (Cooley, at p. 253.) "A statute does not violate equal protection when it recognizes real distinctions that are pertinent to the law's legitimate aims." (In re Marriage Cases (2008) 43 Cal.4th 757, 873.) Indeed, California " 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of [state] power.' " (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.) "Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment." (People v. Green (2000) 79 Cal.App.4th 921, 924.) Under this standard, the state has the burden of establishing it has a compelling interest that justifies the law and that the distinctions, or disparate treatment, made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21 Cal.4th 628, 641; see also People v. Buffington (1999) 74 Cal.App.4th 1149, 1156.)
We need not reach Bacon's arguments that SVPs are similarly situated with those committed under the MDO and NGI schemes, because even if we assume they are so situated for the sake of argument, we conclude California has shown a compelling interest in imposing an indeterminate commitment term for SVPs. Prior to the Proposition 83 amendments, the California Supreme Court observed that the SVPA "narrowly targets 'a small but extremely dangerous group' of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated." (Cooley, supra, 29 Cal.4th at p. 253.) "The problem targeted by the Act is acute, and the state interests – protection of the public and mental health treatment – are compelling." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20.) When voters passed Proposition 83, they had before them the facts that sex offenders "prey on the most innocent members of our society"; that such offenders "have very high recidivism rates" and are the "least likely to be cured and the most likely to reoffend." (Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. Pen. Code § 209, p. 52; see Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)
Indeed, the heightened risk of dangerousness and the unique treatment needs of SVPs as reflected in the voter materials and other sources (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922) compels the conclusion that SVPs are not similarly situated with those committed under the MDO or NGI schemes for purposes of equal protection. Commitments under the MDO and NGI schemes involve a broad range of conduct and mental illness, and those persons are not required to have a mental illness that predisposes them to commit particular crimes in the future. (§ 6600, subd. (c); Ghilotti, at p. 922.)
Bacon does not address these concerns. He maintains that mental conditions are "ill-understood" and "subject to change" and because many persons committed under the MDO scheme would also qualify as SVPs, there is no rational basis for subjecting SVPs to indefinite treatment. This conclusion appears to be based on the premise, for which we find no support in the cited authority (People v. Hurtado (2002) 28 Cal.4th 1179, 1186), that the "MDO scheme . . . address [sic] a broader range of potential dangerousness than does the SVP scheme . . . ." Nor do we agree that the circumstances in Baxtrom v. Herold (1966) 383 U.S. 107 are apposite. In Baxtrom, the court found an equal protection violation when the state deprived a prisoner of a jury trial and finding of dangerousness when it sought to civilly commit him at the end of his prison term, in view of the fact these protections were available to other civilly-committed persons. (Baxtrom, 383 U.S. at p. 111; see In re Smith (2008) 42 Cal.4th 1251, 1264.) The amended SVPA, however, does not deprive persons subject to an initial commitment petition of a jury trial or finding of present inability to control sexually violent behavior. (§ 6604.) Further, under the amended SVPA, an SVP committed to an indeterminate term has the opportunity for meaningful judicial review via annual petitions for release, provided they are not frivolous and are supported by sufficient factual allegations. (§§ 6605, 6608.)
We conclude the characteristics of dangerousness and amenability to treatment recognized by the Proposition 83 voters justify any disparate treatment of SVPs from those civilly committed under the MDO and NGI schemes. The voters intended to enhance the confinement of SVPs, eliminating automatic SVP trials every two years when there is nothing to suggest a change in the person's condition to warrant release. (Shields, supra, 155 Cal.App.4th at pp. 563-564.) These voters reasonably concluded based on the above-referenced considerations that SVPs should be committed to indeterminate terms, subject to hearings on petitions for release at which they may bear the burden to prove by a preponderance of the evidence that they are no longer SVPs. Because imposition of an indeterminate term for SVPs under the amended Act has been shown necessary to further compelling state interests, the SVPA, as amended in 2006, does not violate Bacon's state and federal constitutional rights to equal protection under the law.
V. Constitutionality of Post-Commitment Procedures
We decline to address Bacon's remaining arguments challenging the constitutionality of procedures with regard to annual review proceedings for continued SVP status, including the attendant burden on the SVP to prove his or her fitness in a petition for release. (§§ 6605, subd. (d); 6608.) This matter has not reached the stage of any review process under the amended statute, and thus Bacon's contentions are premature. We decline to issue what would amount to an advisory opinion on these constitutional questions. (People v. Carroll, supra, 158 Cal.App.4th at p. 508, fn. 2.)
VI. Petition for Writ of Habeas Corpus
Bacon contends his appointed public defender provided constitutionally ineffective assistance in connection with his November 2005 probable cause hearing. Specifically, he argues his counsel lied to him by assuring him she would file certain evidentiary motions, failed to bring a motion preventing the People from "relitigating" the facts of his criminal convictions, and failed to file motions to suppress (1) dismissed charges and allegations that were never filed in a criminal court; (2) the Static-99 and other actuarials used by the People; and (3) evidence assertedly known by the prosecution to be "false."
To establish ineffective assistance of counsel, Bacon bears the burden of showing first that his counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052; Strickland v. Washington (1984) 466 U.S. 668, 687.) Second, he must establish prejudice: that absent counsel's errors, it is reasonably probable that the result of the proceeding would have been different. (Hernandez, at p. 1053; Strickland,466 U.S. at p. 694.) A defendant must affirmatively demonstrate prejudice; it is not sufficient for the defendant to show the error had some "conceivable effect" on the outcome of the proceeding. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) We may dispose of Bacon's claim on grounds of lack of prejudice without assessing the sufficiency of his counsel's performance. (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, supra, 466 U.S. at p. 697; People v. Hester (2000) 22 Cal.4th 290, 297.) These standards apply in evaluating ineffective assistance of counsel claims in SVP cases. (See In re Wright (2005) 128 Cal.App.4th 663, 674.)
We conclude that Bacon cannot demonstrate prejudice under the circumstances here, where as a result of our disposition he will have an opportunity to reassert his evidentiary challenges in a new trial. Nor can we conclude he has shown a reasonable probability of a different outcome at the probable cause hearing had his counsel filed motions to exclude the evidence identified above. The record shows that at the probable cause hearing, Bacon called and examined clinical psychologists Jack Vognsen and Jesus Padilla, both of whom prepared recommitment evaluations of Bacon in 2004 concluding Bacon met all of the criteria for being an SVP. They found he had been convicted of at least two qualifying offenses, had a diagnosed mental disorder predisposing him to commit criminal sexual acts (pedophilia with sexual attraction to males and females, non-exclusive), and he was likely to engage in sexually violent predatory criminal behavior as a result of that disorder without appropriate treatment and custody. We presume in the absence of a contrary showing that those witnesses testified consistently with their reports at the probable cause hearing, of which Bacon has not provided a reporter's transcript. (People v. Duvall (1995) 9 Cal.4th 464, 474 [petitioner must include all reasonably available documentary evidence supporting his claims including pertinent portions of trial transcripts; courts reviewing petition will disregard conclusory allegations and presume the regularity of proceedings that resulted in a final judgment]). On the record presented, Bacon has not shown the trial court's probable cause finding was based on uncharged or dismissed allegations.
Specifically, they noted that in 1985, Bacon pleaded guilty to a count of lewd and lascivious act with a child (Lincoln O.; Pen. Code, § 288, subd. (a)), and was convicted of digital penetration by force (Pen. Code, § 289, subd. (a)) and assault with intent to commit rape (Trisha R.; Pen. Code, § 220). In 1987, Bacon pleaded guilty to three counts of the offense of lewd and lascivious acts with a child under the age of fourteen (Melinda D.; Pen. Code, § 288, subd. (a)) and one count of a lewd and lascivious act with a child of 14 or 15 years and ten years younger than the defendant (Roxanne D.).
For the same reasons, Bacon has not demonstrated the court's probable cause determination was based on other irrelevant or inadmissible evidence, including unreliable hearsay. For example, neither Dr. Vognsen nor Dr. Padilla relied exclusively on the Static-99 or the Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR) for their conclusion that Bacon is likely to reoffend; they also relied on other static and stable dynamic risk factors such as his deviant sexual preference, lifestyle instability, intimacy deficits, poor sexual and general self-regulation, and poor cooperation with supervision. We cannot conclude based on the record that the trial court would have reached a different probable cause determination even had counsel made the evidentiary motions described by Bacon.
DISPOSITION
The judgment recommitting Bacon for an indeterminate term is reversed and the matter remanded for additional proceedings on the petition. The petition for writ of habeas corpus is denied.
WE CONCUR: NARES, Acting P. J., McDONALD, J.