Opinion
H036110
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL STARRETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 210811)
Michael Starrett appeals from the October 1, 2010 order committing him as a sexually violent predator (SVP) to the custody of the California Department of Mental Health for an indeterminate term pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) The order expressly stated that it was subject to a hearing on appellant's equal protection challenge consistent with People v. McKee (2010) 47 Cal.4th 1172 (McKee).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Appellant Starrett raises an insufficiency of the evidence claim and a number of constitutional claims. We reject each of his contentions except his equal protection argument and will remand the matter to the superior court for consideration of this claim. Also, we will direct the court to suspend further proceedings in this case pending finality of the proceedings in the McKee case on remand from the California Supreme Court. A. Procedural History
A petition to commit appellant as an SVP pursuant to the SVPA was filed on May 18, 2007. It alleged that, in 1993, in San Mateo County, appellant was convicted of four counts of violating Penal Code section 288, subdivision (a), and sentenced to 12 years in prison. It further alleged that, in 1995, in Santa Clara County, appellant was convicted of two counts of violating Penal Code section 288, subdivision (a) and two counts of violating Penal Code section 288, subdivision (b), and sentenced to a six-year prison term consecutive to the 1993 sentence. The petition averred that, on September 21, 2005, a jury had found true the allegations of a 2003 petition to commit appellant as an SVP pursuant to section 6000 et seq., and appellant had been committed for a two-year term to the Department of Mental Health, Atascadero State Hospital. The 2007 petition sought to extend appellant's SVP commitment, pursuant to section 6604, to "the period prescribed by law."
We granted appellant's request that this court take judicial notice of the appellate record in his previous appeal, Case No. H031860. (Evid. Code, § 452, subd. (d).)
Effective November 8, 2006, "Proposition 83 . . . modified the terms by which sexually violent predators . . . can be released from civil commitment under the Sexually Violent Predators Act . . . . In essence, it change[d] the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP." (McKee, supra, 47 Cal.4th at pp. 1183-1184.)
On June 8, 2007, the People filed a "motion to retroactively apply an indeterminate term to respondent" under the new provisions of the SVPA. (See §§ 6604, 6604.1, subd. (a).) The superior court found that Proposition 83 applied retroactively to appellant's initial commitment. On July 18, 2007, without trial, the court issued a retroactive order of commitment against Michael Starrett, committing him to the custody of the State Department of Mental Health for an indeterminate term.
On appeal in Case No. H031860, appellant challenged the July 18, 2007 order of commitment on a variety of grounds, both constitutional and statutory. In an unpublished opinion filed on June 11, 2008, this court reversed the July 18, 2007 commitment order because "[s]ections 6604 and 6604.1 in effect in July 2007 did not authorize an order imposing an indeterminate term of commitment retroactive to the date upon which appellant was first committed as an SVP under predecessor law." (Fn. omitted.)
Following remand, in December 2009, a probable cause hearing was held. Dr. Michael Selby and Dr. Harry Goldberg, both forensic psychologists, testified. Their 2007 and updated 2009 evaluations of appellant were admitted into evidence. The superior court determined that the requisite probable cause had been established and ordered that an SVP trial be conducted.
In late January 2010, the California Supreme Court decided People v. McKee, supra, 47 Cal.4th 1172, which upheld the SVPA as amended by Proposition 83 against a number of constitutional challenges but did not resolve McKee's equal protection claim, which it found had potential validity. The court reversed and provided the government with an opportunity, on remand, "to justify Proposition 83's indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's may bear in the eyes of California's electorate." (Id. at p. 1210, fn. omitted.)
On August 17, 2010, appellant Starrett filed a "Motion to Preclude Indeterminate Term of Commitment" in which he raised a number of contentions, including the argument that the SVPA violates equal protection because "[a]t the very least, those committed under the SVP Act are similarly situated with MDO patients," who are subject to only one-year commitments. In its response, the People requested that the court impose the indeterminate term and set a hearing on the equal protection claim at a reasonable date in the future since it would take substantial time and effort to prepare for such hearing.
On August 25, 2010, appellant submitted the issue whether he was an SVP to the court for a trial based on documentary evidence, including evidence of the qualifying prior convictions and the transcript of the probable cause hearing held in December 2009 and the documentary evidence admitted at that hearing.
On October 1, 2010, the superior court denied appellant's motion challenging the indeterminate term. The court found that appellant Starrett was an SVP and issued an "Order for Commitment," committing him to an indeterminate term of commitment pursuant to section 6604 "subject to a hearing consistent with People v. McKee (47 Cal.4th 1172) regarding [appellant's] challenge to the commitment on Equal Protection grounds."
B. Trial Evidence
The documentary evidence on which the petition was submitted to the superior court for decision showed the following.
In June 1981, appellant was convicted of trespass for exposing himself in the spa area of a condominium. In June 1989, he was convicted of violating Penal Code sections 314, subdivision 1 (indecent exposure) and 647.6 (annoying or molesting a child) for exposing himself to a 12-year-old girl who was riding a bicycle.
Appellant was subsequently convicted of a number of qualifying sexual offenses. In 1993, he was convicted of four counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious acts on a child) and one count of violating Penal Code section 647.6 (annoying or molesting a child) committed in 1992. The victim of the four lewd act offenses was a six-year-old girl, the daughter of a friend. The victim of the other offense was a 13-year-old girl who was babysitting and helping out at a Christmas party at the home of the six-year-old victim. Another charge of committing a lewd and lascivious act (Pen. Code, § 288, subdivision (a)) against the six-year-old victim's four-year-old brother was dismissed at the time of appellant's plea.
On July 25, 1995, appellant was convicted of two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious acts on a child) and two counts of violating Penal Code section 288, subdivision (b) (forcible lewd and lascivious acts on a child) in 1991. The victim was a 13-year-old girl who was hired to babysit children during a family's stay at a ranch.
In 2002, appellant exposed himself to a correctional officer in prison. Appellant has reported exposing himself 50 to 100 times since he was an adolescent.
Dr. Selby met with appellant in 2007 and October 2009. Dr. Selby read the reports regarding appellant's prior criminal offenses as well as "previous hospital and/or prison records." The offense reports figured "[q]uite a bit" into his diagnosis of appellant.
Dr. Selby diagnosed appellant with "[p]edophilia, opposite sex, nonexclusive type, and exhibitionism." Pedophilia is a chronic disorder that cannot be cured but may be managed to avoid reoffense. Exhibitionism is not a qualifying mental disorder under the SVPA because it has no component of violence.
Based on the DSM-IV manual and his own clinical judgment, Dr. Selby concluded that appellant had a longstanding problem with sexual attraction to children. He acknowledged the lack of evidence that appellant had experienced at least six months of sexually arousing fantasies, urges or behavior, an element of pedophilia under the DSM-IV guidelines. Based on appellant's history of sexual offending, Dr. Selby concluded that appellant "ha[s] the sexual pathology that qualifies him under criterion B [diagnosed mental disorder], whether . . . paraphilia NOS or pedophilia." He adhered to the diagnosis of pedophilia.
Dr. Selby determined appellant's risk category using actuarial instruments, specifically the Static 99-R and the Static 2002. Appellant's score on the Static 99-R fell within the high range for likelihood to sexually reoffend. Appellant had a score of seven on the Static 2002. Since the actuarial instruments did not consider whether the recidivism of the sample group was related to mental illness or was predatory and provided only a general statistical prediction, Dr. Selby did not put stock in those tests as a means of evaluating the risk posed by appellant within the meaning of the SVPA.
In evaluating an individual's risk of reoffense for purposes of the SVPA, Dr. Selby considers the risk factors for recidivism, including intimacy deficits, inability to self regulate, institutional behavior, any history of committing sexual crimes despite past punishment, lack of insight into and coping strategies for dealing with a mental disorder, lack of remorse for sexual offending, lack of genuine empathy for a victim, and lack of a support system. Dr. Selby noted in his report that appellant had not been in any serious adult relationship, he had gravitated to people with children, and he had clearly preferred the company of children. Dr. Selby noted that appellant had shown "little concern for other people both in his commission of the crimes and his subsequent statements about the victims." He stated that appellant continued to minimize his sexual attraction to children and the seriousness of his molesting of children, focusing instead on the less threatening sexual pathology of exposure.
In Dr. Selby's opinion, appellant had still not yet come to grips with the fact that he suffers from pedophilia and was in denial, which significantly limited his ability to move forward in therapy. Appellant was still in phase two of the five-phase treatment program for sex offenders and, in Dr. Selby's opinion, appellant needed to finish treatment. Appellant had not "gained adequate insight into his sexual pathology as indicated in his treatment plan."
Dr. Selby acknowledged, however, that appellant was doing very well in treatment, he was sincere about completing treatment, he was generally well behaved and cooperative in the hospital, and he had not been written up for indecent exposure behavior or misconduct related to children. Nevertheless, Dr. Selby believed that appellant needed more time in the hospital to come to terms with his pedophilia.
Dr. Selby acknowledged that volitional impairment was not an element of a pedophilia diagnosis. In Dr. Selby's judgment, appellant's multiple arrests and convictions for indecent exposure and the qualifying offenses indicated that appellant was volitionally impaired. Appellant had reported that he did not feel that he could control his exhibitionist behavior.
Dr. Selby also believed that appellant lacked an effective community support system since his brother was dying of renal failure and his mother was elderly. Dr. Selby wanted to hear from appellant where he was going to live, how he was going to find a job, and what he was going to do to become independent.
Dr. Selby concluded that appellant met the SVP criteria.
Dr. Harry Goldberg had evaluated appellant in 2003, 2005, 2007, and, most recently, in October 2009. He interviewed appellant in 2007 and 2009.
Dr. Goldberg diagnosed appellant with both exhibitionism and pedophilia under the DSM-IV-TR, the standardized Diagnositic and Statistical Manual which provides guidelines for diagnoses. Both disorders are chronic and incurable but may be managed to prevent criminal reoffense. The clinical definition of pedophilia does not require volitional impairment. In Dr. Goldberg's opinion, however, appellant had some sort of volitional impairment. Appellant had "some serious difficulty controlling himself in certain situations."
While acknowledging that a diagnosis of exhibitionism is not a crime of violence and would not be sufficient to meet the SVP criteria, Dr. Selby indicated that, if appellant exposed himself to young children, such behavior was a manifestation of pedophilia. In his 2007 interview, appellant had admitted fantasizing about exposing himself to children but he had claimed that did not occur until a therapist had asked him about children. Dr. Goldberg found appellant's remark was significant because it showed appellant had tried to blame his deviant desire on another person but Dr. Goldberg conceded that appellant was not blaming others now.
In his October 2009 report, Dr. Goldberg stated: "Research has shown that offenders who complete comprehensive sexual offender treatment are at lower risk for reoffense than those offenders who do not complete these treatment modalities." Dr. Goldberg did not think appellant was ready for release because he minimized his pedophilic interests and was only in phase two of the five phase treatment program. Appellant had admitted to Dr. Goldberg that he continued to be attracted to children as young as age eight and 10. In Dr. Goldberg's opinion, it was important for appellant to learn to better manage his disorders and deviant arousal and to better understand relationships.
Dr. Goldberg acknowledged, however, that appellant's participation in group therapy had been exemplary. Appellant was receiving good reports about his participation in treatment. Appellant was reportedly cooperative and well behaved with staff members. He was very involved with Sex Addicts Anonymous, which Dr. Goldberg thought was a good program. But Dr. Goldberg commented that it was a lot easier to admit to thinking about sex than to admit to thinking about sex involving children.
While recognizing that appellant was motivated to go to treatment, Dr. Goldberg observed that appellant had always had such motivation. In fact, appellant had previously received counseling in the community but he had nevertheless committed sex offenses. Dr. Goldberg did not think appellant would be able to avoid reoffending if he were released into the community.
Dr. Goldberg had initially given appellant a score of seven on the Static 99-R, which takes an offender's age into account. But based upon new information about an additional sex offense, Dr. Goldberg indicated an eight on the Static 99-R was the appropriate score. A score of eight indicated a 45 percent chance of reoffending within five years and a 55.3 percent chance of reoffending within 10 years; a score of seven indicated a 37.9 chance of reoffending within five years and a 48.6 chance of reoffending within 10 years. Dr. Goldberg acknowledged that these statistics did not predict appellant's risk in particular and there could be wide disparities between the characteristics of the sample members and appellant. But in his opinion, actuarial instruments are appropriate tools to apply in evaluating whether an individual is an SVP. Dr. Goldberg also applies his clinical judgment and he thinks it is important to use both approaches.
As to dynamic risk factors, Dr. Goldberg noted appellant's lack of any long-term intimate relationships, his identification with children, his view of women as primarily sex objects, and his long history of sexual preoccupation. He was aware that, in 2007, appellant was thinking about exposing himself to a staff member but he told someone and he did not do it. Dr. Goldberg stated that the fact that he is controlling himself in a very highly structured setting does not demonstrate that he can control himself "on the outside." Appellant had not described to Dr. Goldberg the risky situations that might lead him to engage in deviant sexual behavior or his plan for avoiding those situations. In Dr. Goldberg's opinion, appellant was likely to reoffend.
Both evaluators believed any future sexual offending by appellant was likely to be predatory, within the meaning of the SVPA, based upon his past offenses. C. Sufficiency of the Evidence
Section 6604 requires proof beyond a reasonable doubt that a person is an SVP, which is statutorily defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) A lewd and lascivious act against "a child under the age of 14" in violation of Penal Code section 288 is a "sexually violent offense" within the meaning of section 6600. (§§ 6600, subd. (b), 6600.1.) " 'Diagnosed mental disorder' includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) Those criminal sexual acts must be "predatory" (People v. Hurtado (2002) 28 Cal.4th 1179, 1186, 1190), which includes acts "directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).)
The SVPA "clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162.) Its definition of the qualifying mental disorder "makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined." (Ibid.) "Under the Act, a person is 'likely' to engage in sexually violent criminal behavior (i.e., reoffend) if he or she 'presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.' (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 . . . .)" (McKee, supra, 47 Cal.4th at p. 1186.) The term "likely" does not mean "more likely than not." (People v. Roberge (2003) 29 Cal.4th 979, 987-988.)
Appellant asserts that the evidence was insufficient to support the finding that he was a sexually violent predator, particularly as to current dangerousness. He attacks the expert's opinions on the ground they were "divorced from any salient current facts." He maintains that "[t]here were no facts regarding any recent behavior" that would support "Dr. Selby's finding that [he] met the standards for dangerousness under the SVPA . . . ." He states that Dr. Goldberg's findings were based on his past sex offenses and "situational factors that are utterly outside [his] control or irrelevant." He accuses Dr. Goldberg of engaging in "extrapolation from past behavior into speculation regarding possible future crimes . . . ." He insists that the evidence of his conduct in custody would not "support a finding that he was currently dangerous in any way." Although both experts relied on the fact that he had not completed the sex offender program, appellant contends "there was no evidence presented that sex offender treatment affected a person's rate of reoffending." Appellant argues that speculative expert evidence is not substantial evidence.
In evaluating appellant's insufficiency of the evidence claim, "this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. (People v. Johnson (1980) 26 Cal.3d 557, 576-578 . . . .)" (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) "To be substantial, the evidence must be ' "of ponderable legal significance . . . reasonable in nature, credible and of solid value." ' [People v. Johnson, supra, 26 Cal.3d] at p. 576 . . . .)" (Id. at p. 466.) "In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. (People v. Mercer (1999) 70 Cal.App.4th 463, 466 . . . .)" (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Although conviction of a sexual offense specified in section 6600 cannot be the sole evidence for determining that a person is a sexually violent predator, it is relevant evidence. (See § 6600, subd. (a)(3); Evid. Code, § 210.) The Act does not require the offender to have committed a recent act of sexual misconduct while in custody. (§ 6600, subds. (d), (f).) "The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others." (People v. Sumahit (2005) 128 Cal.App.4th 347, 353.)
The evidence of a witness who is believed by the trier of fact ordinarily constitutes substantial evidence. (See Evid. Code, § 411; see also People v. Alcala (1984) 36 Cal.3d 604, 623.) "[T]he direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' (People v. Huston (1943) 21 Cal.2d 690, 693 . . . ; accord, People v. Jones (1990) 51 Cal.3d 294, 314-316 . . . ; People v. Thornton (1974) 11 Cal.3d 738, 754 . . . .)" (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) The opinion of a single expert about future dangerousness due to a diagnosed mental disorder may constitute sufficient evidence. (Cf. People v. Bowers (2006) 145 Cal.App.4th 870, 879 [single psychiatric opinion that individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of confinement of a defendant found not guilty by reason of insanity].)
It is true that "[a]n expert's opinion which rests upon guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. [Citations.]" (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3; see Cal. Law Revision Com. com., 29B Pt.3A West's Ann. Evid.Code (2009 ed.) foll. § 801, p. 25 ["irrelevant or speculative matters are not a proper basis for an expert's opinion"].) But here the record shows that the experts relied upon the information gleened from appellant's records and interviewing him and Dr. Goldberg considered actuarial instruments as well. The record does not demonstrate that the matter relied upon was not of "a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the experts'] testimony relate[d]." (Evid. Code, § 801, subd. (b); Cal. Law Rev. Com. com, 29B Pt. 3A West's Ann. Evid. Code (2009 ed.) foll. 801, p. 26 [This requirement "[i]n large measure, . . . assures the reliability and trustworthiness of the information used by experts in forming their opinions"].)
There was evidence that appellant suffered from pedophilia and exhibitionism, chronic and uncurable mental disorders. Despite therapy in the community and the penal consequences for acts of exhibitionism, he had committed sexual offenses against children. Even after incarceration, appellant exposed himself in prison. Appellant failed to progress beyond the second phase of a five-phase sex offender treatment program and, even years later, minimized his pedophilia. The experts agreed that appellant needed to complete additional sex offender treatment and posed a risk of reoffending if not committed. In addition, Dr. Goldberg took into account the results of actuarial risk assessment instruments that indicated appellant posed a risk of reoffending.
The fact that the experts did not follow identical reasoning in concluding that he was an SVP does not negate their opinions or render them inherently unbelievable. The evidence was sufficient to support the court's determination that appellant is an SVP. D. Constitutional Challenges
Appellant asserts that his indeterminate commitment under the SVPA violates his constitutional rights, specifically the right to due process, the prohibition against ex post facto laws, the double jeopardy protection, the prohibition against cruel and unusual punishment, and the right to equal protection. He recognizes that this court is bound by McKee, supra, 47 Cal.4th 1172 (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455) but raises certain constitutional challenges to preserve his ability to seek further judicial relief from our state's Supreme Court or federal courts.
1. Due Process
Appellant argues that the SVPA as amended by Proposition 83 violates due process by "removing the requirement that the state prove, on a regular basis, that [an SVP committee] continues to meet the criteria of an SVP" and by "shifting the burden of proof to the committed person to prove that he or she is no longer an SVP." He complains that it is the committed individual who "must petition for discharge even if the State Department of Mental Health (DMH) determines that the person no longer meets the definition of a sexually violent predator" (§ 6605, subds. (b) to (e)) and, even if a court does hear an individual's petition for an unconditional discharge, the state is required to prove only 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 if discharged" but not that the person is an SVP (§ 6605, subd. (d)). He also asserts that "the SVPA makes no provision for [release of] someone . . . who by virtue of age or ill health . . . is no longer at risk to reoffend" since the court sets a hearing on such petition only if it first determines that "probable cause exists to believe that the committed person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged." (§ 6605, subd. (c).) Appellant also argues that section 6608's provisions do not provide adequate procedural safeguards to ensure that an individual "will not remain unnecessarily committed" since it places the burden of proof on the individual and does not establish the individual's right to the assistance of an expert.
As appellant concedes, the California Supreme Court addressed substantially similar contentions in McKee and we are bound by that decision. In McKee, the appellant maintained that the amended SVPA violated his federal due process rights by imposing an indefinite commitment term and then placing the burden on him to obtain release by proving, by a preponderance of the evidence, that he was no longer an SVP. (McKee, supra, 47 Cal.4th at p. 1188.) The court determined that these statutory changes did not violate due process. (Id. at p. 1191.) "McKee further contend[ed] that his lack of access to mental health experts to challenge his continuing commitment violates due process." (Id. at p. 1192.) To avoid any constitutional due process concerns, the court construed "section 6608, subdivision (a), read in conjunction with section 6605, subdivision (a), to mandate appointment of an expert for an indigent SVP who petitions the court for release." (Id. at p. 1193.) The court stated that "[a]fter Proposition 83, it is still the case that an individual may not be held in civil commitment when he or she no longer meets the requisites of such commitment." (Ibid.) The court concluded that the SPVA, as construed, did not violate the due process clause. (Ibid.)
In addition to the controlling McKee decision, appellant fails to provide any good reason why, after a court has ordered a person committed as an SVP upon adequate proof beyond a reasonable doubt (§§ 6604, 6604.1), the state should be required to again prove a qualifying predicate offense, which is an immutable fact, at a hearing held pursuant to section 6605, subdivision (d). Further, appellant Starrett overlooks section 6605, subdivision (f). That provision states: "In the event that the State Department of Mental Health has reason to believe that a person committed to it as a sexually violent predator is no longer a sexually violent predator, it shall seek judicial review of the person's commitment pursuant to the procedures set forth in Section 7250 [habeas corpus] in the superior court from which the commitment was made. If the superior court determines that the person is no longer a sexually violent predator, he or she shall be unconditionally released and unconditionally discharged."
We reject appellant's due process claims.
2. Ex Post Facto, Double Jeopardy, Cruel and Unusual Punishment Clauses
Appellant contends that the commitment order must be reversed because commitment for an indeterminate term violates the federal constitutional prohibitions against ex post facto laws and double jeopardy and amounts to cruel and unusual punishment because an indeterminate commitment as an SVP constitutes punishment for past sexual crimes.
Article I, section 10 of the United States Constitution states: "No State shall . . . pass any . . . ex post facto Law . . . ." The double jeopardy clause of the Fifth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 794 ), provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." The Eighth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment (Roper v. Simmons (2005) 543 U.S. 551, 560 ; Robinson v. California (1962) 370 U.S. 660, 666 ), prohibits the infliction of "cruel and unusual punishments . . . ."
A "function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) . . . ." (Garner v. Jones (2000) 529 U.S. 244, 249-250 .) The double jeopardy clause protects "against the imposition of multiple criminal punishments for the same offense [citations] . . . in successive proceedings [citation]" (Hudson v. U.S. (1997) 522 U.S. 93, 99 ) but it "does not prohibit the imposition of all additional sanctions that could, ' "in common parlance," ' be described as punishment. [Citations.]" (Id. at pp. 98-99.) The Eighth Amendment's proscription against cruel and unusual punishment protects against punishment that is "grossly disproportionate [to the crime] in light of the justification offered." (Graham v. Florida (2010) ___ U.S. ___, ___[130 S.Ct. 2011, 2029].)
In deciding whether a law imposes criminal punishment for purposes of the ex post facto and double jeopardy clauses, we first " 'ascertain whether the legislature meant the statute to establish "civil" proceedings.' Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)." (Smith v. Doe (2003) 538 U.S. 84, 92 .) "If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ' "so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil." ' [Citation.]" (Ibid.) "Because we 'ordinarily defer to the legislature's stated intent,' Hendricks, supra, at 361, 117 S.Ct. 2072, ' "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty' [citations]." (Ibid.)
A determination that a statute does not impose criminal punishment and is nonpunitive clearly "removes an essential prerequisite" for ex post facto and double jeopardy claims. (See Kansas v. Hendricks (1997) 521 U.S. 346, 369 .) "An Act, found to be civil, cannot be deemed punitive 'as applied' to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release." (Seling v. Young (2001) 531 U.S. 250, 267 .)
In McKee, the California Supreme Court thoroughly examined the claim that the SVPA, as amended by Proposition 83, violated the prohibition against ex post facto laws. (McKee, supra, 47 Cal.4th at pp. 1193-1195.) The court stated: "[T]he nonpunitive objectives of the Act—treatment for the individual committed and protection of the public—remain the same after Proposition 83. Moreover, under the Act after Proposition 83, as before, a person is committed only for as long as he meets the SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83 amendments at issue here cannot be regarded to have changed the essentially nonpunitive purpose of the Act." (Id. at p. 1194.) After considering the factors articulated in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169 , the California Supreme Court held in McKee that "the Proposition 83 amendments do not make the Act punitive and accordingly do not violate the ex post facto clause." (Id. at p. 1195.)
In evaluating the effect of Alaska's sex offender registration act for purposes of ex post facto analysis, the U.S. Supreme Court stated: "In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28, 83 S.Ct. 554. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are 'neither exhaustive nor dispositive,' United States v. Ward, 448 U.S., at 249, 100 S.Ct. 2636; 89 Firearms, 465 U.S., at 365, n. 7, 104 S.Ct. 1099, but are 'useful guideposts,' Hudson, 522 U.S., at 99, 118 S.Ct. 488." (Smith v. Doe, supra, 538 U.S. at p. 97 .) Those factors include: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter "; (4) "whether its operation will promote the traditional aims of punishment-retribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears excessive in relation to the alternative purpose assigned." (Kennedy v. Mendoza-Martinez, supra, 372 U.S. at pp. 168-169 .)
As appellant recognizes, the McKee decision compels our rejection of his ex post facto and double jeopardy claims. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) We think it also disposes of the cruel and unusual punishment contention.
We are aware, however, of Austin v. U.S. (1993) 509 U.S. 602, 608 , a civil forfeiture case. In that case, the U.S. Supreme Court held that the "Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U.S.C. §§ 881(a)(4) and (a)(7)." (Id. at p. 604.) The court observed that the Eighth Amendment is not expressly limited to criminal cases. (Id. at p. 608; but see Ingraham v. Wright (1977) 430 U.S. 651, 664 [Eighth Amendment's proscription against cruel and unusual punishment was "designed to protect those convicted of crimes"; it did not apply to corporal punishment of public school children].) It rejected the argument that "the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal under Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), and United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)." (Id. at p. 607.) "The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards that attend a criminal prosecution should be required. See Mendoza-Martinez, 372 U.S., at 167, 184, 83 S.Ct., at 567, 575; Ward, 448 U.S., at 248, 100 S.Ct., at 2641." (Id. at p. 610, fn. 6.)
The United States Supreme Court stated: "The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government's power to punish. See Browning-Ferris, 492 U.S., at 266-267, 275, 109 S.Ct., at 2916, 2920. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, 'as punishment for some offense.' Id., at 265, 109 S.Ct., at 2915 (emphasis added). 'The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law.' United States v. Halper, 490 U.S. 435, 447-448, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989). 'It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties.' Id., at 447, 109 S.Ct., at 1901. See also United States ex rel. Marcus v. Hess, 317 U.S. 537, 554, 63 S.Ct. 379, 389, 87 L.Ed. 443 (1943) (Frankfurter, J., concurring). Thus, the question is not, as the United States would have it, whether forfeiture . . . is civil or criminal, but rather whether it is punishment." (Id. at pp. 609-610, fn. omitted.) It further determined: "We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish." (Id. at p. 610.)
Even assuming the Mendoza-Martinez factors do not apply to the question whether an indeterminate commitment as an SVP is "punishment" within the meaning of the Eighth Amendment's cruel and usual punishment clause and the issue is whether such commitment serves in part to punish, appellant has not established that such commitment serves in any way to punish him for his past conduct. The purposes of the Act are public protection from the risk of future sexual offenses and individual treatment. (See McKee, supra, 47 Cal.4th at p. 1195; see §§ 6606, subds. (a) [Department of Mental Health must afford SVP committee "treatment for his or her diagnosed mental disorder"]; (c) ["programming provided by the State Department of Mental Health in facilities shall be consistent with current institutional standards for the treatment of sex offenders"].) Appellant's indeterminate commitment under the SVPA is not "punishment" within the meaning of the Eighth Amendment.
3. Equal Protection
Appellant argues that the SVPA, as amended by Proposition 83, violates equal protection because it "unjustifiably treats persons subject to SVP commitments different[ly] from persons subject to the state's other civil commitment schemes." He points out that a mentally disordered offender (MDO) and offenders not guilty by reason of insanity (NGI), unlike SVP committees, are not subject to an indeterminate commitment.
As observed by the California Supreme Court, "an MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year." (McKee, supra, 47 Cal.4th at p. 1202; see Pen.Code, §§ 2970, 2972.) NGI committees "may not be in civil custody longer than the maximum state prison term to which they could have been sentenced for the underlying offense (Pen. Code, § 1026.5, subd. (a); People v. Crosswhite (2002) 101 Cal.App.4th 494 . . . ) unless at the end of that period the district attorney extends the commitment for two years by proving in a jury trial beyond a reasonable doubt that the person presents a substantial danger of physical harm to others because of a mental disease, defect, or disorder. (Pen. Code, § 1026.5, subd. (b)(1); People v. Haynie (2004) 116 Cal.App.4th 1224, 1226 . . . ; People v. Superior Court (Blakely) 60 Cal.App.4th 202, 216 . . . .)" (McKee, supra, 47 Cal.4th at p. 1207.)
In McKee, the Supreme Court concluded that "MDO's and SVP's are similarly situated" for purposes equal protection analysis and they have "the same interest at stake—the loss of liberty through involuntary civil commitment . . . ." (Id. at p. 1204.) The court further determined that "NGI's and SVP's are also similarly situated and that a comparison of the two commitment regimes raises similar equal protection problems . . . ." (Id. at p. 1207.)
The Supreme Court declared that "imposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People." (Id. at p. 1203.) The Supreme Court recognized that "the People have not yet carried their burden of justifying the differences between the SVP and NGI commitment statutes" and between the SVP and MDO commitment statutes. (Id. at p. 1207.) It stated that the government had "not yet shown that the special treatment of SVP's is validly based on the degree of danger reasonably perceived as to that group, nor whether it arises from any medical or scientific evidence." (Id. at p. 1210.)
The Supreme Court went on: "We do not conclude that the People could not meet its burden of showing the differential treatment of SVP's is justified. We merely conclude that it has not yet done so. Because neither the People nor the courts below properly understood this burden, the People will have an opportunity to make the appropriate showing on remand." (Id. at pp. 1207-1208.) The court announced that it was remanding the "case to the trial court to determine whether the People, applying the equal protection principles articulated in Moye and related cases discussed in the present opinion, can demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment." (Id. at pp. 1208-1209, fn omitted.) It also specified that the trial court had the power, upon remand, to permit expert testimony if appropriate. (Id. at p. 1209, fn. omitted.) Superior court proceedings on remand in the McKee case have been completed and McKee's appeal is presently pending before the California Court of Appeal, Fourth District (D059843).
In this case, appellant Starrett raised his post-McKee equal protection claim by motion in the superior court before trial. The court denied appellant's motion but, following trial, issued a commitment order subject to a future equal protection hearing at some unspecified time. Appellant contends that the trial court erred in not deciding the equal protection argument before issuing its commitment order and urges us to remand the case to the trial court for a hearing on the equal protection issue. Respondent requests this court to instead suspend further appellate proceedings pending finality of the proceedings on remand in McKee. Respondent asserts that this approach would be consistent with the Supreme Court's transfer orders, issued in other SVP cases after granting review, that directed appellate courts "to suspend further proceedings pending finality of the proceedings on remand in People v. McKee (2010) 47 Cal.4th 1172" "in order to avoid an unnecessary multiplicity of proceedings" and defined "finality of the proceedings" to "include the finality of any subsequent appeal and any proceedings in this court."
We take judicial notice of the Supreme Court's records. (Evid. Code, § 452, subd. (d).) See the Supreme Court's transfer orders in People v. Johnson (S164388, review granted Aug. 13, 2008), People v. Riffey (S164711, review granted Aug. 20, 2008), People v. Boyle (S166167, review granted Oct. 1, 2008), People v. Garcia (S166682, review granted Oct. 16, 2008), People v. Johndrow (S175337, review granted Sept. 17, 2009), People v. Rotroff (S178455, review granted Jan. 13, 2010), People v. Glenn (S178140, review granted Feb. 10, 2010), People v. Barbour (S183450, review granted July 28, 2010), People v. McKnight (S183315, review granted July 28, 2010), People v. Judge (S182384, review granted July 28, 2010), People v. Dannenberg (S184382, review granted Aug. 18, 2010), People v. Schuler (S183062, review granted Sept. 1, 2010), and People v. Gomberg (S185107, review granted October 20, 2010, People v. Nguyen (S193545, review granted Aug. 10, 2011.)
We first conclude that the superior court acted in excess of its statutory authority by issuing a conditional order of commitment. Section 6604 specifies: "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 State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health." A court acts in excess of jurisdiction when it fails to conduct itself in the manner prescribed. (People v. Lara (2010) 48 Cal.4th 216, 224-225.)
In accordance with McKee, we will reverse and remand for consideration of appellant's equal protection claim. But we also recognize that the Supreme Court has determined that an unnecessary multiplicity of proceedings on the equal protection issue should be avoided. Consistent with that determination, we will direct the superior court to suspend further proceedings on that claim pending finality of the proceedings on remand in McKee.
DISPOSITION
The October 1, 2010 Order of Commitment is reversed for the limited purposes of modifying the order to omit the "subject to" language and considering appellant's equal protection challenge to his indeterminate SVP commitment in light of McKee (McKee, supra, 47 Cal.4th 1172). In order to avoid an unnecessary multiplicity of proceedings, the superior court is directed to suspend further proceedings on that claim pending finality of the proceedings on remand in McKee. "Finality of the proceedings" shall include the finality of the pending appeal in McKee and any proceedings in the California Supreme Court in McKee.
_________________________
ELIA, J.
WE CONCUR:
_________________________
RUSHING, P. J.
_________________________
PREMO, J.