Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF35973 James W. Hollman, Judge.
Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
Alvin Champagne, a sexually violent predator, challenges his commitment to an indeterminate term on the grounds of insufficiency of the evidence, lack of trial court jurisdiction, impermissible retroactive application of an amended statute, cruel and/or unusual punishment, violations of the single subject rule, his constitutional rights to access to the courts, due process, double jeopardy, and equal protection, and violation of his constitutional right against ex post facto laws. We will affirm the judgment.
BACKGROUND
On June 2, 2006, the district attorney filed a petition to extend Champagne’s civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, §§ 6600 et seq.) The petition noted he had been found to be an SVP and had been committed to the custody of the State Department of Mental Health (DMH) on June 18, 2004. The length of the term of commitment the SVPA authorized on both of those dates was two years. (Former § 6604. Added by Stats. 1995, ch. 763, § 3. Amended by Stats. 2000, ch. 420, § 3, eff. Sept. 13, 2000.)
Later statutory references are to the Welfare and Institutions Code unless otherwise noted.
On September 20, 2006, a legislative amendment to the SVPA took effect that changed the length of the term of commitment of an SVP from “two years” to “an indeterminate term.” (Former § 6604. Amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006.) Seven weeks later, a ballot initiative effected, inter alia, a like change in the SVPA. (§ 6604. Initiative Measure (Prop. 83, § 27, approved Nov. 7, 2006, eff. Nov. 8, 2006) (Proposition 83).)
On May 10, 2007, the district attorney filed a motion to convert without trial Champagne’s commitment for two years to a commitment for an indeterminate term on the theory that the amended statute obviated the need for a trial. On May 21, 2007, at a consolidated hearing on the district attorney’s motion, Champagne’s opposition, and Champagne’s motion to dismiss (which argued the opposing theory that the amended statute rescinded the former statutory authority to petition for an extension), the trial court denied both motions.
On May 24, 2007, a jury found the petition true and the trial court ordered him committed to DMH custody for an indeterminate term.
DISCUSSION
1. Sufficiency of the Evidence
Champagne argues an insufficiency of the evidence that he is a danger to the health and safety of others. The Attorney General argues the contrary.
One of the issues of fact for the jury to decide was whether, as a result of a diagnosed mental disorder, Champagne was “a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior.” (CALCRIM No. 3454.) Both of the prosecution’s expert witnesses, psychologists Jeremy Coles and Jack Vognsen, based their evaluations of Champagne on interviews of him and on review of multiple documents about him. Both addressed issues of whether he had a qualifying sexual offense, whether he had a diagnosable mental disorder that makes an individual likely to commit another sexual offense, and whether he was likely to commit another offense on the basis of that diagnosis. The primary diagnosis by both Coles and Vognsen was pedophilia, a chronic and incurable sexual urge toward prepubescent females. The defense expert witness, psychologist Theodore Donaldson, disagreed that Champagne was a pedophile but concurred that pedophilia is incurable.
Champagne’s commission of sexual offenses against prepubescent females spanned a period of several years, far longer than the six-month requirement for that diagnosis in the Diagnostic and Statistical Manual of the American Psychological Association. Coles characterized him as a menace to the community due to his lack of control over his behavior. He admitted to Vognsen that he still had sexual urges toward children.
Champagne’s other diagnoses were alcohol dependence in institutional remission, polysubstance dependence, and antisocial personality disorder. Given his primary diagnosis of pedophilia, the other diagnoses “act like fuel on the fire” since his disregard for the law and his disinhibition together enable indulgence in deviant sexual urges more than if his other diagnoses were absent. His history of repetitive commission of sexual offenses against prepubescent females despite serious punishment for prior such acts shows a likelihood of doing what he wants and worrying about the consequences later.
The static historical predictors of ongoing risk (an instrument commonly known as Static 99) showed that Champagne had a 39 percent chance of being convicted of another sex offense within five years, a 45 percent chance within 10 years, and a 52 percent chance within 15 years. Since convictions, not commissions, of sex offenses are the basis of those predictors, his Static 99 percentages were conservative.
On appeal, the standard of review of the sufficiency of the evidence of an SVP commitment is the same as the standard of review of the sufficiency of the evidence of a criminal conviction. (People v. Carlin (2007) 150 Cal.App.4th 322, 333 (Carlin).) We review the entire record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277, citing People v. Johnson (1980) 26 Cal.3d 557, 576.) By that standard of review, the record shows a sufficiency of the evidence that Champagne is a danger to the health and safety of others.
2. Jurisdiction of Trial Court
Champagne argues that the trial court had no jurisdiction to apply to him the provisions of the amended statute changing the length of the term of commitment of an SVP from two years to indeterminate. The Attorney General argues the contrary.
Champagne notes that the amended statute changed the length of an SVP’s term of commitment from two years to indeterminate and deleted the provisions referring to subsequent extended commitments. (Former §§ 6604, 6604.1, 6605, subd. (e). Amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006.) From the absence of an express savings clause in the amended statute, he argues that the order extending his commitment is void for lack of jurisdiction.
Just as we infer from the amended statute an implied savings clause to avoid absurd consequences (People v. Carroll (2007) 158 Cal.App.4th 503, 510 (Carroll)), so do other courts that have considered the issue (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280 (Bourquez); People v. Shields (2007) 155 Cal.App.4th 559, 563-564.)
3. Retroactive Application
Champagne argues that even if the trial court had jurisdiction the filing of the petition before the effective date of the amended statute entitles him to a modification of the term of his extended civil commitment from indeterminate to two years. The Attorney General argues the contrary.
On the premise that a new statute operates prospectively in the absence of language expressly declaring the contrary, Champagne argues that the amended statute’s modification of the term of commitment from two years to indeterminate operates prospectively. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) The Attorney General agrees with the premise of Champagne’s argument and agrees that the modification operates prospectively since the last act triggering the application of the modification occurred before the effective date of the modification. (People v. Grant (1999) 20 Cal.4th 150, 157.)
Just as we infer prospective operation of the amended statute on the rationale that “the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA” (Carroll, supra, 158 Cal.App.4th at p. 514), so do other courts that have considered the issue (People v. Riffey (2008) 163 Cal.App.4th 474, 482-483 (Riffey); Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.)
4. Due Process: Burden of Proof
Champagne argues that by placing on him the burden of proof to show he should be released the amended statute violates due process. The Attorney General argues that the amended statute complies with due process.
Champagne notes that the SVPA authorizes “two mechanisms for judicial review of [his] confinement,” one a petition DMH authorizes “for conditional release to a less restrictive alternative or for an unconditional discharge” (§ 6605, subd. (b)), the other a petition without DMH’s concurrence or recommendation “for conditional release or an unconditional discharge” (§ 6608, subds. (a), (i)), and argues that neither of the two is “constitutionally adequate.” (Foucha v. Louisiana (1992) 504 U.S. 71, 80 (Foucha).)
“Louisiana’s detention of insanity acquittees who are no longer mentally ill” failed due process scrutiny before the high court (Foucha, supra, 504 U.S. at p. 81), but the SVPA requires DMH not only to examine the mental condition of a person committed under the statute “at least once every year” but also to authorize the filing of a petition for “conditional release to a less restrictive alternative or for an unconditional discharge” of a person who “no longer meets the definition” of an SVP or whose conditional release on conditions that adequately protect the community is in the person’s best interest (§ 6605, subds. (a), (b)). The Attorney General argues that the amended statute complies with the requirements of due process. (Jones v. United States (1983) 463 U.S. 354, 370 (Jones); Addington v. Texas (1979) 441 U.S. 418, 432-433; People v. Hurtado (2002) 28 Cal.4th 1179, 1182.) We agree.
Just as we reject analogous due process burden of proof challenges to the amended statute (People v. Garcia (2008) ___ Cal.App.4th ___, ___ [2008 Cal.App. LEXIS 1220, 7-17; 2008 WL 3198118, 2-6] (Garcia)), so do other courts that have considered the issue (People v. Boyle (2008) 164 Cal.App.4th 1266, 1277-1279 (Boyle); Riffey, supra, 163 Cal.App.4th at pp. 486-489; People v. Johnson (2008) 162 Cal.App.4th 1263, 1276-1283 (Johnson)).
Review of an opinion addressing an analogous due process burden of proof issue is pending before the California Supreme Court. (People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823.)
5. Due Process: Periodic Hearings
Champagne argues that the amended statute’s failure to require mandatory periodic hearings risks continuation of an SVP’s commitment even if the person no longer suffers from the diagnosed mental disorder that was responsible for the commitment. The Attorney General argues the contrary.
Focusing on the amended statute’s deletion of the requirement of mandatory periodic hearings, Champagne argues that the absence of access by a person committed under the statute to compensated qualified experts could make any effort to petition for release “doomed to failure.” Section 6608 does not expressly provide for the appointment of expert witnesses, but section 6605 does so in conjunction with the requirement of a mental examination at least once a year for possible conditional release or unconditional discharge: “The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.” (§ 6605, subd. (a).)
Just as we reject analogous due process burden of proof challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 7-17; 2008 WL 3198118, 2-6]), so do other courts that have considered the issue (Boyle, supra, 164 Cal.App.4th at pp. 1277-1279; Riffey, supra, 163 Cal.App.4th at pp. 486-489; Johnson, supra, 162 Cal.App.4th at pp. 1276-1286).
Review of an opinion addressing an analogous due process periodic hearings issue is pending before the California Supreme Court. (Ante, fn. 2.)
6. Ex Post Facto
Champagne argues that the amended statute is a punitive statute that violates the ex post facto clause. The Attorney General argues the contrary.
On the rationale that a civil label is not always dispositive of a statute’s status as civil or criminal, Champagne argues that penal measures in the amended statute (e.g., longer criminal penalties and periods of parole, a broader definition of an SVP, and residence restrictions on registered sex offenders) no longer permit classification of the SVPA as a non-punitive civil statute. (Kansas v. Hendricks (1997) 521 U.S. 346, 361 (Hendricks).) His characterization as criminal of other provisions of the amended statute do not make his civil commitment a punishment. A civil commitment like his, which does not impose punishment, does not raise ex post facto concerns. (Id. at pp. 370-371; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179.)
Just as we reject analogous ex post facto challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 17-23; 2008 WL 3198118, 6-8]), so do other courts that have considered the issue. (Boyle, supra, 164 Cal.App.4th at pp. 1280-1285; Riffey, supra, 163 Cal.App.4th at pp. 483-486; Johnson, supra, 162 Cal.App.4th at pp. 1287-1289).
Review of an opinion addressing an analogous ex post facto issue is pending before the California Supreme Court. (Ante, fn. 2.)
7. Double Jeopardy
On the premise that the amended statute is a punitive statute that violates the ex post facto clause, Champagne argues that his indeterminate commitment again punishes his underlying sexual offenses against prepubescent females in violation of the double jeopardy clause. The Attorney General argues the contrary.
In light of our rejection of Champagne’s ex post facto argument, his double jeopardy argument fails for want of a valid premise. (Ante, part 6; see Hendricks, supra, 521 U.S. at pp. 360-361, 369-370; Carlin, supra, 150 Cal.App.4th at p. 348; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 (Chambless).) Just as we reject analogous double jeopardy challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 17-23; 2008 WL 3198118, 6-8]), so do other courts that have considered the issue. (Boyle, supra, 164 Cal.App.4th at pp. 1280-1285; Riffey, supra, 163 Cal.App.4th at p. 486, fn. 5; Johnson, supra, 162 Cal.App.4th at pp. 1287-1289).
8. Equal Protection
On the premise that similarly situated groups like mentally disordered offenders (MDO’s) and persons found not guilty by reason of insanity (NGI’s) have greater rights to judicial review of their commitments, Champagne argues that his indeterminate SVP commitment violates the equal protection clause. The Attorney General argues the contrary.
The condition precedent to a valid equal protection claim is a showing that the state has adopted a classification that affects similarly situated groups in an unequal way. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) In the absence of that showing, the equal protection claim fails. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155 (Buffington).) An MDO is a person with a mental disorder that treatment might keep in remission, but an SVP is a person with a mental disorder that might defy treatment. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222; Buffington, supra, 74 Cal.App.4th at p. 1163.) An NGI is a person whose commitment arises out of past conduct, but an SVP is a person whose commitment arises out of future risk. (See Pen. Code, § 1026; § 6600, subd. (a)(1).)
Absent a showing that the state has adopted a classification that affects similarly situated groups in an unequal way, Champagne’s equal protection argument fails for want of a valid premise. (Buffington, supra, 74 Cal.App.4th at p. 1155.) Just as we reject analogous equal protection challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 23-26; 2008 WL 3198118, 8-9]), so do other courts that have considered the issue. (Boyle, supra, 164 Cal.App.4th at pp. 1285-1288; Riffey, supra, 163 Cal.App.4th at pp. 489-492; Johnson, supra, 162 Cal.App.4th at pp. 1283-1286).
Review of an opinion addressing an analogous equal protection issue is pending before the California Supreme Court. (Ante, fn. 2.)
9. Cruel and/or Unusual Punishment
On the premise that the amended statute imposes criminal punishment, Champagne argues that his indeterminate commitment constitutes cruel and/or unusual punishment. The Attorney General argues the contrary.
The amended statute implicates neither of the two primary objectives of criminal punishment, deterrence and retribution. (See People v. Robinson (1998) 63 Cal.App.4th 348, 351.) Constitutional safeguards against cruel and/or unusual punishment do not apply to civil commitment proceedings. (Carlin, supra, 150 Cal.App.4th at p. 348; Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2.) As with Champagne’s ex post facto argument, his cruel and/or unusual punishment argument fails for want of a valid premise. (Ante, part 6; see People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 486-487.) Just as we reject analogous cruel and/or unusual punishment challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 25-26; 2008 WL 3198118, 9]), so does another court that has considered the issue (Riffey, supra, 163 Cal.App.4th at p. 486, fn. 5),
10. Access to the Courts
Champagne argues that limitations the amended statute places on his right to seek his release violate his constitutional right to petition the courts for redress of grievances. The Attorney General argues the contrary.
Champagne’s constitutional right as a civil litigant to adequate, effective, and meaningful access to the courts is not in doubt. (See Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 429; In re Grimes (1989) 208 Cal.App.3d 1175, 1182.) He argues that the amended statute imposes impermissibly onerous restrictions on his access to the courts, but we have already resolved that issue against him in two due process contexts. (Ante, parts 4-5.) By parity of reasoning, we likewise resolve that issue against him in the redress of grievances context. (See §§ 6604, subds. (a), (b); 6608, subds. (a), (i).) Just as we reject analogous access to the courts challenges to the amended statute (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 26-27; 2008 WL 3198118, 9]), so does another court that has considered the issue (Riffey, supra, 163 Cal.App.4th at pp. 492-493).
11. Single Subject Rule
Champagne argues that Proposition 83 violates the single subject rule of the California Constitution. The Attorney General argues the contrary.
Whether or not Proposition 83 violates the single subject rule (Cal. Const., art. II, § 8, subd. (d)), Champagne’s indeterminate term remains lawful under the legislative amendment to the SVPA that took effect seven weeks before Proposition 83 took effect. (Former § 6604. Amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006. Initiative Measure (Prop. 83, § 27, approved Nov. 7, 2006, eff. Nov. 8, 2006).) In light of our rejection of all of Champagne’s challenges to his indeterminate commitment, he is not entitled to relief on the basis of his single subject rule argument even if we were to agree with him (Riffey, supra, 163 Cal.App.4th at p. 493), which we do not (Garcia, supra, ___ Cal.App.4th at pp. ___ [2008 Cal.App. LEXIS 1220, 27-36; 2008 WL 3198118, 9-13]).
12. Partial Relief
Champagne argues that if we were to agree with some, though not all, of his arguments the remedy should be, inter alia, a modification of his commitment from an indeterminate term to a two-year term, at the end of which he should be entitled to a hearing on the issue of extension at which, inter alia, the prosecution should have the burden of proof beyond a reasonable doubt. Disagreeing with the contours of the relief Champagne envisions, the Attorney General argues that if we were to agree with some, though not all, of Champagne’s arguments we should apply the remainder of the SVPA according to how we adjudicate those arguments. Both parties agree on the governing law. (United States v. Booker (2005) 543 U.S. 220, 259-260; Alaska Airlines, Inc. v. Brock (1987) 480 U.S. 678, 684.) In light of our rejection of all of Champagne’s challenges to his indeterminate commitment, he is not entitled to relief on the theory of partial relief.
13. Judicial Review
Champagne argues that despite the absence of objections at trial he is entitled to judicial review since his issues concern fundamental constitutional rights (United States v. Provencio (9th Cir. 1977) 554 F.2d 361, 363), his sentence was not authorized by law (People v. Scott (1994) 9 Cal.4th 331, 354), his pretrial motions adequately preserved his right to judicial review, and, alternatively, even if objections were necessary at trial, his trial attorney rendered ineffective assistance of counsel by failing to object (People v. Williams (1999) 77 Cal.App.4th 436, 461-462, citing Strickland v. Washington (1984) 466 U.S. 668, 687). The Attorney General argues he has forfeited his right to appellate review. In the interest of judicial efficiency, we have analyzed Champagne’s arguments on the merits. (See People v. Williams (1998) 61 Cal.App.4th 649, 657, citing, e.g., People v. Marshall (1996) 13 Cal.4th 799, 831.) So the arguments about his entitlement to judicial review are moot.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Hill, J.