Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210426
Mihara, Acting P.J.
Defendant Manse Sullivan appeals from an order committing him to an indeterminate term of commitment (Welf. & Inst. Code, § 6604.1, subd. (a)) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.). On appeal, defendant contends that the trial court: (1) erred by granting the prosecutor’s request for a continuance, and then dismissing the first jury panel; (2) lacked jurisdiction to extend his commitment; and (3) erred in applying the SVPA retroactively to his case. Defendant also challenges the constitutionality of the SVPA, as amended in 2006, on due process, ex post facto, double jeopardy, cruel and/or unusual punishment, equal protection, First Amendment, and single-subject grounds. We reject these contentions and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
We do not include a statement of facts, because it is not relevant to the issues on appeal.
A. Request for Continuance and Dismissal of Jury Panel
Defendant contends that the trial court erred in granting the prosecutor’s request for a continuance, and then dismissing the jury panel.
1. Factual Background
On July 20, 2005, the Santa Clara District Attorney filed a petition to extend defendant’s commitment for two years as an SVP pursuant to former section 6604.
On April 25, 2006, the second day of jury selection, the trial court noted that a problem had arisen the previous afternoon when the parties were reviewing the jury questionnaires. The prosecutor had pointed out that after 15 of the prospective jurors were excused for hardship, 40 of the 60 remaining prospective jurors were 23 years old, and after 17 more prospective jurors were excused for stipulated cause, 32 of the remaining 43 prospective jurors, or 74 percent, were 23 years old. The prosecutor observed that “[e]ven with the most rudimentary understanding of statistics and probability, it is inconceivable to the People that this is an accident of nature. And so it is the People‘s belief that there is some problem in the jury pool selection process.” The prosecutor then sought a continuance “to investigate whether we have a basis to show this Court that there is a prim[a] facie case with representation with regards to the jury members that are available to the People and defense. [¶] . . . The jury commissioner is unavailable until next Monday. It is the People’s request that we be allowed at least two weeks to investigate whether we have a basis to show the Court that there is a prima facie case of under representation of a cross section of our community.” Defendant did not object to the jury pool and opposed a continuance.
After concluding that “both sides are entitled to a panel of jurors drawn from a representative cross section of the community” and that this interest outweighed defendant’s interest in a timely trial, the trial court granted the prosecutor’s request for a continuance until May 9, 2006.
When the prospective jurors returned to the courtroom, the trial court explained that 74 percent of the prospective jurors were 23 years old, and that the parties were entitled to “a group that represents our community.” The trial court also stated: “I have talked to the jury commissioner and from what I can gather this is from the jury commissioner just a random selection of people, but it is amazing to know that 74 percent of you are 23 years old.” Nevertheless, the trial court concluded that more time was necessary to research the issue. The trial court then excused the jury panel, and continued the case until May 9, 2006.
At the hearing on May 9, 2006, the trial court stated, “We have had some informal discussions amongst each other as well as a member of the IT staff, IT manager for the Court. Based on those discussions I am satisfied that there is, nothing improper occurred. [¶] The panel was released and excused. The Court did that because our schedule would not allow us to simply delay the jury trial start for two weeks. Just can’t do that because of the witnesses and the time constraints by all the parties.” It then set the trial for the next available court date, which was November 6, 2006.
Jury selection began on November 6, 2006. On November 13, 2006, the prosecutor filed an amended petition, which alleged that defendant was subject to an indeterminate term due to a change in the law. On November 16, 2006, the jury found the petition true, and the trial court ordered defendant to be recommitted for an indeterminate term.
2. Analysis
“Continuances shall be granted only upon a showing of good cause.” (Pen. Code, § 1050, subd. (e).) The trial court has discretion to determine whether to grant or deny a motion for a continuance. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) In making this determination, the trial court “considers not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037, internal citations and quotation marks omitted.)
Defendant argues that the trial court abused its discretion, because the prosecutor failed to show good cause.
The right to a jury trial is granted by the state Constitution to all, including the parties in an SVP proceeding. (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988; Cal. Const., art I, § 16.) This right is implemented through various statutory procedures governing jury selection. (Code Civ. Proc., §§ 190-237.) Code of Civil Procedure section 191 states that “[i]t is the policy of the State of California that all persons selected for jury service shall be selected at random from the population of the area served by the court . . . .” Thus, potential jurors “shall be selected at random, from a source or sources inclusive of a representative cross section of the population of the area served by the court.” (Code Civ. Proc., § 197, subd. (a); see also Code Civ. Proc. § 198, subd. (a).) Moreover, random selection is statutorily required throughout the jury selection process, including selection of the jury panel sent to a particular courtroom. (Code Civ. Proc., § 219, subd. (a).) “‘Random’” is statutorily defined as “that which occurs by mere chance indicating an unplanned sequence of selection where each juror’s name has substantial equal probability of being selected.” (Code Civ. Proc., § 194, subd. (l).) “[T]he parties are not free to waive, and the court is not free to forego, compliance with the statutory procedures which are designed to further the policy of random selection . . . .” (People v. Visciotti (1992) 2 Cal.4th 1, 38 (Visciotti).)
Here, after 15 of the prospective jurors were excused for hardship, 66 percent of the remaining prospective jurors were 23 years old; after 17 more prospective jurors were excused for stipulated cause, 74 percent of the prospective jurors were 23 years old. Thus, it appeared that the list might have been drawn by date of birth rather than by random selection, thereby violating the statutory requirement of a randomly selected jury panel. The trial court spoke with the jury commissioner, but remained somewhat skeptical regarding the information that it had received. The trial court also acknowledged that a continuance would affect defendant’s interest in a timely trial, but deemed this interest outweighed by the parties’ interest in a jury panel that had been randomly selected. Based on these circumstances, we conclude that the trial court did not abuse its discretion in granting a continuance to allow further investigation as to whether statutory procedures had been correctly followed. Having properly granted the continuance, the trial court did not err in dismissing the particular panel of jurors assigned to this case due to scheduling conflicts involving witnesses and the parties.
Defendant claims that “the right to an impartial jury” under the Sixth Amendment “is solely the defendant’s,” and he was not denied “the right to an impartial jury drawn from a cross-section of the community,” because “youth is not a ‘distinctive’ group within the community.” We find no merit in these claims. The issue is whether the jury panel assigned to the courtroom had been selected at random pursuant to statutory procedures, and this issue cannot be waived by the parties. (Visciotti, supra, 2 Cal.4th at p. 38.)
Defendant next argues that the prosecutor failed to make the necessary showing that “representation of the distinctive group in the venire from which juries are selected is not fair and reasonable in relation to the numbers of such persons in the community.” He points out that the prosecutor failed to show the percentage of individuals who were 23 years old in the jury venire or jury pool, or that there had been systematic exclusion of certain age groups. However, the issue is not whether the prosecutor had made a sufficient showing to challenge the jury panel as unrepresentative of the community. Instead, the issue is whether the prosecutor had shown good cause for a continuance to investigate whether the jury panel had been randomly selected.
Defendant also argues that the prosecutor failed to comply with Code of Civil Procedure section 225, subdivision (a), which requires that a party who is challenging the jury panel for cause must submit the challenge in writing and serve it on all the parties and the jury commissioner. As previously stated, the prosecutor was not challenging the jury panel. He was seeking a continuance to determine whether there was a basis for challenging the panel. Thus, Code of Civil Procedure section 225 was inapplicable.
B. Jurisdiction and Retroactivity
1. Factual Background
When the SVPA was enacted, it provided for two-year commitments that could be extended every two years upon the filing of a petition by the prosecutor. On July 20, 2005, the district attorney filed the petition to extend defendant’s commitment as an SVP for two years. On September 20, 2006, the Legislature passed Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Sen. Bill 1128), effective immediately, which changed the two-year commitment to an indeterminate commitment, and deleted all references to an extended commitment in sections 6604 and 6604.1. (Stats. 2006, ch. 337, § 55.) On November 7, 2006, the voters enacted Proposition 83, which is also known as “Jessica’s Law.” This initiative went into effect the following day, and it also amended the SVPA to extend the commitment term from two years to indeterminate. (Ballot Pamp., Primary Elec. (Nov. 7, 2006) text of Prop. 83, p. 137.) On November 13, 2006, the district attorney filed an amended petition, which alleged that defendant would be subject to an indeterminate term due to a change in the law if the petition were found true. On November 16, 2006, the jury found the petition true.
Former Section 6604 provided in relevant part: “If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years 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, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a petition for extended commitment under this article . . . .” (Italics added.)
2. Analysis
Defendant contends that the trial court lacked jurisdiction to extend his commitment, because Sen. Bill 1128 deleted all language relating to proceedings to extend SVP commitments. This argument has been rejected in People v. Carroll (2007) 158 Cal.App.4th 503 (Carroll), Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275 (Bourquez), and People v. Shields (2007) 155 Cal.App.4th 559 (Shields). These courts concluded that the statutory changes included an implied savings clause that allowed proceedings to extend commitments where SVPs had been committed under the former SVPA.
However, we need not consider the effect of Sen. Bill 1128, because the present case is governed by the amendments to the SVPA made by Proposition 83. These amendments were in effect on November 16, 2006, when the jury found the SVP allegations in the petition against appellant were true. The SVPA, as amended by Proposition 83, refers to “extended commitments” and “all commitments,” that is, initial commitment and recommitment, proceedings. Moreover, the Bourquez and Shields courts found an implied savings clause to permit extended commitment hearings. (Bourquez, supra, 156 Cal.App.4th at p. 1288; Shields, supra, 155 Cal.App.4th at p. 564.) Thus, here, the trial court had jurisdiction to commit appellant for an indeterminate commitment.
Section 6604 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 State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health.”
Defendant also argues that his commitment to an indeterminate term constituted an unlawful retroactive application of the SVPA. This argument has been rejected in Carroll, supra, 158 Cal.App.4th at pp. 512-515 and Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.
In Carroll, the court explained that “[a] new or amended statute is presumed to operate prospectively only, unless there is an express declaration or clear indication the Legislature (or the electorate) intended otherwise. In order for a law to be retrospective, it must apply to events occurring before it was enacted. Stated in another way, [a] statute has retrospective effect when it substantially changes the legal consequences of past events. Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. A law is not retroactive merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” (Carroll, supra, 158 Cal.App.4th at p. 513, internal citations and quotation marks omitted.) The Carroll court then reasoned that application of the SVPA, as amended by Sen. Bill 1128, “did not change the legal consequence of past events or conduct . . . because the trial on any petition for commitment or recommitment must focus on the person’s current mental condition.” (Ibid., citation and quotation marks omitted.) The court concluded that “the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA.” (Id. at p. 514.) Thus, the indeterminate term provision of the SVPA was not retroactively applied in Carroll, because the status of the SVP’s mental condition was adjudicated after the SVPA was amended by Sen. Bill 1128. (Ibid.)
Noting that Proposition 83 is silent with respect to retroactive application, the Bourquez court considered “whether applying its provisions to pending petitions to extend commitment is a prospective application.” (Bourquez, supra, 156 Cal.App.4th at p. 1288.) As did the court in Carroll, the Bourquez court concluded that “[b]ecause 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.]” (Id. at p. 1289.)
Since we agree with the analysis set forth in Carroll and Bourquez, we also reject defendant’s argument. Here, the jury found that defendant was an SVP after the effective date of Proposition 83. Thus, the trial court did not err in determining that he should be committed for an indeterminate term.
C. Constitutional Challenges
1. Statutory Background
As previously noted, the former SVPA provided for a two-year civil commitment for individuals who are found to be SVPs beyond a reasonable doubt after a trial. (People v. Williams (2003) 31 Cal.4th 757, 764.) The two-year commitment could then be extended after a trial in which the prosecutor carried the same burden of proof. (Former §§ 6604, 6604.1, 6605, subds. (d), (e).)
Under the amended SVPA, when a court or jury determines beyond a reasonable doubt that a person is an SVP, “the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement . . . .” (§ 6604.) The committed person then “shall have a current examination of his or her mental condition made at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.” (§ 6605, subd. (a).) The Department of Mental Health (Department) must file this report with the court and serve it on both parties. (Ibid.) The committed person may retain an expert to examine him or her or have one appointed by the court if the person is indigent. (Ibid.) This expert shall have access to the committed person’s records. (Ibid.)
Section 6600, subd. (a)(1) defines an SVP 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.”
When the Department determines that the committed person is no longer an SVP, it authorizes him or her to file a petition for conditional release or unconditional discharge. (§ 6605, subd. (b).) After the court receives a petition for conditional release or unconditional discharge, it must order a show cause hearing. (§ 6605, subd. (b).) “If the court at the show cause hearing 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, then the court shall set a hearing on the issue.” (§ 6605, subd. (c).) Each party has the right to experts and a jury at this hearing, and the committed person is “entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” (§ 6605, subd. (d).) The state bears the burden of proving 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 if discharged.” (Ibid.)
Even if the Department does not authorize a petition, a committed person may petition for conditional release or unconditional discharge under section 6608. In bringing this petition, the committed person is entitled to the assistance of counsel. (§ 6608, subd. (a).) The court may summarily deny this petition if it determines that the petition is frivolous. (Ibid.) When the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is no longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) If the trial court finds that the committed person would not be “a danger to the health and safety of others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program . . . for one year.” (§ 6608, subd. (d).) After one year, the trial court shall hold a second hearing to determine if the committed person should be unconditionally released. (Ibid.) If the trial court denies the petition, the committed person must wait one year to file another petition. (§ 6608, subd. (h).) After a section 6608 petition has been denied, either as frivolous or after a hearing, the trial court shall deny any subsequent petition under section 6608 “unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted.” (§ 6608, subd. (a).)
2. Substantive Due Process
Defendant challenges his indeterminate commitment under the SVPA, as amended by Proposition 83, on federal due process grounds. He argues that the SVPA fails to provide mandatory periodic hearings and improperly places the burden of proof on him to prove that he is no longer an SVP.
In evaluating a due process claim, the United States Supreme Court has set forth a three-factor test: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 335.) The court has applied this test to involuntary civil commitments. (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington).)
Here, the private interest is the loss of liberty. “[C]ivil commitment for any purpose constitutes a signification deprivation of liberty that requires due process protection. [Citations.]” (Addington, supra, 441 U.S. at p. 425.) However, the state may restrict this interest in appropriate circumstances. (Kansas v. Hendricks (1997) 521 U.S. 346, 356 (Hendricks).)
We first note that the initial commitment hearing satisfies federal due process requirements. At this hearing, the SVPA requires the prosecutor to prove beyond a reasonable doubt that a person meets the definition of an SVP, that is, that he or she has been convicted of a sexually violent offense and has a diagnosed mental disorder that makes the person a danger to others. Defendant has no quarrel with the procedures governing this hearing. He focuses on the risk that a committed person will continue to be involuntarily committed even though he or she is no longer mentally ill and a danger to others. He argues that the lack of periodic judicial review and the shifting of the burden of proof from the state to the committed person greatly increase this risk.
Nothing in the SVPA affects the trier of fact’s finding regarding the qualifying offense at the initial commitment hearing. Since this finding remains valid during the annual reviews or future proceedings, it does not increase the risk of an improper commitment. Turning to the committed person’s mental disorder and dangerousness, one can reasonably infer that this condition will continue for an undetermined period of time. (See Jones v. United States (1983) 463 U.S. 354, 368 [“And because it is impossible to predict how long it will take for any given individual to recover—or indeed whether he will ever recover—Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review for the patient’s suitability for release”].) At issue here is whether the review procedures are adequate to ensure that the committed person is held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)
Contrary to defendant’s claim, the lack of periodic judicial review does not create an undue risk of erroneous deprivation of a committed person’s liberty interest. The SVPA requires an annual review of the committed person’s mental health status, which is then forwarded to the court and the prosecutor. The committed person is also entitled to an evaluation by an independent expert. When the committed person no longer meets the definition of an SVP, the Director of Mental Health is required to authorize him or her to file a petition for conditional release or unconditional discharge. Since the goal of the mental health system is to treat mentally ill patients so that they may function as healthy individuals in the community, we can infer that medical professionals and the Director of Mental Health are not biased against committed persons or their release. Moreover, the frequency of the medical reviews reduces the risk that the committed person will be confined longer than is necessary. Balanced against these considerations, the value of judicial review every two years is slight. As the United States Supreme Court has noted, “‘neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.’” (Parham v. J.R. (1979) 442 U.S. 584, 607, quoting In re Roger S. (1977) 19 Cal.3d 921, 942 (Clark, J., dissenting).)
Defendant states that “media coverage and public fears concerning any potential release of an SVP detainee act as a strong deterrent against recommendations for release by the Department,” because “Department officials are obviously aware that they will be blamed if a released SVP detainee reoffends.” Defendant has provided no factual basis for this statement, and thus we reject it as mere speculation.
We next consider whether there is a risk of an erroneous determination under the SVPA provisions regarding the burden of proof. When the Department has not authorized the filing of a petition, the committed person, who is entitled to the assistance of counsel, may file a petition for release. If the trial court determines that the petition is frivolous, there is no risk of an erroneous determination. In cases where the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is no longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) Under these circumstances, the lack of evidence rather than the burden of proof will make it difficult for the committed person to prevail. For this reason, the value in shifting the burden of proof to the prosecutor would be slight. Thus, placing the burden of proof on the committed person at this hearing creates little risk of an erroneous deprivation of his or her liberty.
Defendant emphasizes that two defense experts testified at the present trial that he no longer posed a serious risk of committing a violent sex offense. We fail to understand how this fact supports his position regarding the lower burden of proof. Applying the beyond a reasonable doubt standard, the jury found to the contrary.
Turning now to the state’s interest, we find that the state has a substantial interest in providing treatment to individuals who suffer from mental illness and in protecting the public from individuals whose mental illness makes them a danger to others. (Addington, supra, 441 U.S. at p. 426.) The state also has a substantial interest in preserving its resources by avoiding the unnecessary relitigation of cases. (See United States v. Wattleton (11th Cir. 2002) 296 F.3d 1184, 1200-1201.)
After applying the balancing test set forth in Mathews v. Eldridge, supra, 424 U.S. 319, we conclude that the present statutory scheme has sufficient safeguards to protect the individual’s liberty interest while providing for the state’s significant interests.
3. Procedural Due Process
Defendant claims that he was deprived of procedural due process, because he was given insufficient notice that he would be subject to an indeterminate commitment.
As previously stated, defendant’s trial occurred in mid-November 2006, which was two months after Sen. Bill 1128 was enacted. The prosecutor did not amend the petition to allege that defendant was subject to an indeterminate term until after jury selection but prior to the start of trial. Defendant objected to the amendment.
In Carroll, supra, 158 Cal.App.4th 503, the court rejected the identical due process claim that is presented here. The court reasoned that the amendment to the petition under the SVPA was timely and that the allegations against which the defendant had to defend, that is, that he had a current mental disorder and he was likely to engage in sexually violent criminal behavior in the future, were not affected by the amendment. (Id. at p. 513.) Here, defendant did not request a continuance. He did not state at that time, and he has not stated on appeal, how the amended petition prevented him from fully litigating the issues at trial. Thus, for the reasons stated in Carroll, we reject defendant’s claim that he was deprived of procedural due process.
4. Ex Post Facto, Double Jeopardy, Cruel and/or Unusual Punishment
Defendant argues that the amendments to the SVPA render it punitive, and thus his indeterminate commitment violates state and federal constitutional prohibitions against ex post facto laws, double jeopardy, and cruel and/or unusual punishment.
Since the amendments to the SVPA made by Proposition 83 were in effect when the jury found the SVP allegations in the petition against defendant were true, we consider whether this version of the SVPA implicates ex post facto, double jeopardy, and cruel and/or unusual punishment concerns.
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art I, § 10, cl. 1; Cal. Const. art. I, § 9.) Thus, those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts” are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43, italics added.) The ex post facto clause applies exclusively to penal statutes, and if a commitment statute does not impose punishment, it does not implicate ex post facto protection. (Hendricks, supra, 521 U.S. at pp. 370-371.) We use the same analysis in considering claims arising under the federal and state ex post facto clauses. (People v. Helms (1997) 15 Cal.4th 608, 614.) In determining whether a proceeding is civil or criminal, we must first ascertain the intent of the voters who enacted Proposition 83. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.)
Defendant focuses on the Official Voter Information Guide as indicative of the voters’ intent to punish SVPs. The guide states: “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.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006), p. 138; Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, §§ 1, 2(e), 2(f), 31, pp. 127, 138.) However, other language in Proposition 83 demonstrates that the voters distinguished between those provisions that involved criminal penalties for sexual offenders and those that amended the SVPA. It stated that “[e]xisting laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(h), p. 127, italics added.) Thus, the voters expressed their intent that the SVPA, as amended by Proposition 83, would strengthen and improve the laws that control, not punish, SVPs.
However, as defendant points out, a reviewing court may reject the stated intent “where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate the intention’ to deem it ‘civil.’ [Citation.]” (Hendricks, supra, 521 U.S. at p. 361.) Defendant claims that the SVPA is punitive in purpose, because it “allows for the imposition of an indeterminate commitment without required periodic judicial review where the government is required to prove the detainee still meets the requirements for commitment.”
In determining whether a commitment is civil or criminal, this court must consider “whether the duration of confinement is ‘linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.’” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1176 (Hubbart), quoting Hendricks, supra, 521 U.S. at p. 363.) Defendant acknowledges that the California Supreme Court held that the former SVPA did not violate the ex post facto clause. (Hubbart, at p. 1177.) He emphasizes that the court’s holding “was predicated in large measure on the fact that the commitment was so short.” The Hubbart court stated that “each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again proves, beyond a reasonable doubt, that the person is dangerous and mentally impaired. [Citation.] Although committed for two years, the SVP is entitled each year to a new mental examination and to judicial review of the commitment to determine whether his condition has changed such that he no longer poses a danger to the health and safety of others.” (Hubbart, at p. 1177.)
Here, the amendments to the SVPA have not altered the potential length of an SVP’s commitment period, which remains dependent on the successful treatment of the SVP’s mental disorder. In claiming that an SVP “could be kept in custody long past the duration of his mental illness,” defendant has also not acknowledged the procedures that are mandated by the SVPA to safeguard against such an event. As previously discussed, the SVPA contains sufficient protections to ensure that a committed person’s commitment lasts only as long as his or her mental illness causes danger to others.
Defendant also argues that “[t]he intent to punish is also evident from the scope of the reforms.” He points out that Proposition 83 increases criminal penalties for sexual offenders, lengthens the period of parole for sex offenders, prohibits registered sex offenders from residing near schools or parks, and requires lifetime Global Positioning System monitoring of these sex offenders. However, these provisions of Proposition 83 refer to amendments to the Penal Code, and thus are not relevant to our analysis of those provisions that amended the SVPA.
Defendant next relies on the test outlined in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144 to support his position that the SVPA is penal in nature. This test specifies seven factors that are relevant to such a determination: “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned . . . .” (Id. at pp. 168-169.) Applying this test, we conclude that the SVPA is not punitive.
Here, though the commitment to a state hospital involves an affirmative restraint, it has not historically been regarded as punishment. As the court explained in Hendricks, “‘the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.’ The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. The Court has, in fact, cited the confinement of ‘mentally unstable individuals who present a danger to the public’ as a classic example of nonpunitive detention.” (Hendricks, supra, 521 U.S. at p. 363, internal citations omitted.)
In Hendricks, the court also recognized that “unlike a criminal statute, no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead the commitment determination is made based on a ‘mental abnormality’ or ‘personality disorder’ rather than on one’s criminal intent.” (Hendricks, supra, 321 U.S. at p. 362.) The same standard holds true of the SVPA, which bases a commitment determination on the diagnosis of a “mental disorder.” (§ 6600, subds. (a)(1), (c).)
The Hendricks court further observed that the absence of a scienter requirement “is evidence that confinement under the statute is not intended to be retributive. [¶] Nor can it be said that the legislature intended the Act to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a [diagnosed mental disorder] that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.” (Hendricks, supra, 521 U.S. at pp. 362-363.) There is nothing in the amended provisions of the SVPA that would function more as a deterrent than the provisions of the former SVPA.
We next note that the SVPA does not apply to criminal behavior. It applies to a mental condition that may lead to criminal behavior if the person is not confined and treated. The purpose for the confinement is to provide treatment and protection for the public. This purpose was not transmuted into a punitive one with the change of the commitment term from two years to an indeterminate term. “Far from any punitive objective, the confinement’s duration is instead linked to the stated purpose of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” (Hendricks, supra, 521 U.S. at p. 363.) Since the SVPA continues to provide a means to obtain release once a committed person no longer meets the definition of an SVP, the confinement cannot be deemed excessive.
We also note that “[w]here the State has ‘disavowed any punitive intent’; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted release upon a showing that the individual is no longer dangerous or mentally impaired,” the United States Supreme Court has found no punitive intent. (Hendricks, supra, 521 U.S. at pp. 368-369.) Based on these considerations, we conclude that the amended SVPA is not punitive, and thus defendant’s ex post facto claim fails.
Defendant also contends that the amended SVPA violates the prohibitions against double jeopardy and cruel and/or unusual punishment. A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.) Similarly, “cruel and unusual punishment principles to not apply to civil commitment proceedings because they are not penal in nature.” (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.) Accordingly, since we have found that the amended SVPA is not punitive in nature, defendant’s double jeopardy and cruel and unusual punishment contentions also have no merit.
5. Equal Protection
Defendant next contends that his indeterminate commitment term under the amended SVPA with limited judicial review of his custodial status violates the equal protection clauses of the federal and state Constitutions. We conclude that defendant has failed to show that SVPs are similarly situated to those committed pursuant to other civil commitment schemes, such as mentally disordered offenders (MDO) (Pen. Code, § 2960 et seq.) and those found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.).
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley), internal citations and quotation marks omitted.)
Defendant asserts that “SVP defendants and MDO defendants are both committed for treatment because they represent a danger to the public because of a mental disorder[,]” and “no compelling state interest . . . is advanced by granting MDO defendants the right to annual review of their custodial status, but making SVP defendants subject to potentially life terms with no meaningful judicial review of their commitments.”
Though both SVPs and MDOs are involuntarily committed for treatment, they are not similarly situated for purposes of the law challenged. An SVP is committed for treatment, in part, based on the danger that he or she will engage in sexually violent criminal behavior while an MDO is committed for treatment, in part, based on the substantial danger he or she will physically harm others. Thus, the dangers posed by SVPs and MDOs to the community are different. More importantly, however, “the MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets persons with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b)).” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) As the People point out, the voters who passed Proposition 83 “recognized that SVPs stand apart from other civil committees in their likelihood of reoffense and resistance to treatment.” In an uncodified statement accompanying Proposition 83, the voters declared: “Sex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend, . . . Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.” (Ballot Pamp. Primary Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b), p. 127.) Thus, SVPs and MDOs are not similarly situated for purposes of how long they should be confined and treated or how they obtain judicial review of their commitments.
Defendant next maintains that NGI patients “have the right to a hearing on a petition for release within 180 days following their initial commitment,” but “SVP defendants, by contrast, do not have any right to compel a hearing on the merits regarding their committed status, and that deprivation continues indefinitely[,]” and “no compelling state interest . . . justifies such differential treatment between individuals committed as [NGI patients] and SVP defendants.”
Defendant has failed to show that NGI patients are similarly situated to SVPs for purposes of how long they should be confined or the type of judicial review to which they are entitled. NGI patients, who suffer from various mental disorders, have been acquitted of a wide variety of both violent and nonviolent crimes. After his or her acquittal, no evidentiary hearing is held to determine if the NGI patient is still insane and the NGI patient is automatically committed. In the NGI scheme, the treatment and prospects for recovery vary greatly, and the NGI patient’s mental disorder does not predispose him or her to commit a particular type of crime in the future. (Pen. Code, §§ 1026, 1026.5.) Thus, an NGI patient can petition for release once his or her sanity has been restored. Yet even if an NGI patient immediately petitions for release, his or her hearing cannot be held until the NGI patient has been confined for at least 180 days. (See Pen. Code, § 1026.2, subds. (a) & (d).) “In contrast, 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.’ (Stats. 1995, ch. 763, § 1, p. 5921.)” (Cooley, supra, 29 Cal.4th at p. 253.) SVPs have a mental disorder “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).) Thus, SVPs generally require long-term treatment. Consequently, before an SVP can be committed, a trier of fact must find beyond a reasonable doubt that the person meets the requirements of the SVPA. Since the NGI statutory scheme applies to a broader and more diverse category of individuals than the SVPA, the two schemes are not similarly situated for equal protection purposes with regard to the length of confinement and treatment and the release procedures.
6. First Amendment Right to Petition
Defendant also contends that the SVPA, as amended, denies committed persons “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” We disagree.
The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides, among other things, for the right “to petition the Government for a redress of grievances.” (U.S. Const., 1st Amend.) Prisoners have a constitutional right of access to the courts. (Ex parte Hull (1941) 312 U.S. 546, 549.)
Relying on section 6605, subdivision (b), defendant argues that he has been deprived of his right of access because a committed person “may file a petition for release only with the concurrence of the director of the Department of Mental Health.” Though he acknowledges that section 6608, subdivision (a) allows him to file a petition, he argues that there is no provision allowing for the appointment of a medical expert. Though section 6608 does not refer to the appointment of a medical expert, section 6605, subdivision (a) provides that a committed person has the right to retain, or if indigent to request the appointment of, an expert to examine him or her. Thus, the committed person will have had the right to the assistance of a medical expert within the one-year period preceding any petition brought under section 6608.
Section 6608, subdivision (a) states in relevant part: “Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health.”
Defendant also argues that section 6608 does not grant meaningful access to the court, because it permits the court to summarily deny a petition without a hearing if it concludes the petition is frivolous and it places the burden of proof on the committed person under a preponderance of the evidence standard. (§ 6608, subds. (a), (i).) There is no merit to this argument. First, a judicial officer makes the determination as to whether the petition is frivolous, and the committed person is entitled to the assistance of counsel to make his or her showing. (§§ 6608, subd. (a), 6605, subd. (a).) Second, there is no authority for the proposition that the First Amendment guarantees an individual a particular type of proceeding when he or she is before the court. Habeas corpus proceedings illustrate this point. A court may summarily deny a petition for writ of habeas corpus when the petitioner fails to “prove, by a preponderance of evidence, facts that establish a basis for relief . . . .” (See In re Visciotti (1996) 14 Cal.4th 325, 351; People v. Duvall (1995) 9 Cal.4th 464, 474-475.) Similarly, here, the First Amendment does not entitle a committed person to an evidentiary hearing on a petition that has been deemed frivolous.
7. Single-Subject Rule
Defendant next contends that Proposition 83 violated the single-subject rule applicable to ballot initiatives. He asserts that Proposition 83 “combined too many disparate topics without a common purpose under a broad and amorphous theme of dealing with sex offenders. In this regard, the proposition included provisions modifying civil, criminal and regulatory matters.”
The Legislative Analyst summarized the provisions of Proposition 83 as follows: (1) “Increases penalties for violent and habitual sex offenders and child molesters”; (2) “Prohibits registered sex offenders from residing within 2,000 feet of any school or park”; (3) “Requires lifetime Global Positioning System monitoring of felony registered sex offenders”; (4) “Expands definition of a sexually violent predator”; and (5) “Changes current two-year involuntary civil commitment for a sexually violent predator to an indeterminate commitment, subject to an annual review by the Director of Mental Health and subsequent ability of sexually violent predator to petition court for sexually violent predator’s conditional release or unconditional discharge.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legislative Analyst, p. 42.)
“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II, § 8, subd. (d).) In Manduley v. Superior Court (2002) 27 Cal.4th 537 (Manduley), the California Supreme Court set forth the applicable legal principles in a case involving the single-subject rule: “[T]he governing decisions establish ‘“‘[a]n initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are “reasonably germane” to each other,’ and to the general purpose or object of the initiative.”’ [Citation.] As we recently have explained, ‘the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose.’ [Citation.] Accordingly, we have upheld initiative measures ‘“. . . which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.” [Citation.]’” (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157.) The common purpose to which the initiative’s various provisions relate, however, cannot be “‘so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement.’ [Citation.]” (Id. at p 1162.)
In Manduley, the court considered, among other things, whether Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, violated the single-subject rule. (Manduley, supra, 27 Cal.4th at pp. 573-581.) Proposition 21 addressed gang violence, the sentencing of repeat offenders, and juvenile crime. (Id. at pp. 574-575.) The petitioners argued that each subject was “distinct and unrelated to one another,” and that, “although the subjects addressed by Proposition 21 might be related to the general goal of reducing crime, such a goal is too broad to satisfy the requirements of the single-subject rule.” (Id. at p. 575.) The court rejected this argument, and concluded that “the provisions of Proposition 21 that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiative’s common purpose of addressing violent crime committed by juveniles and gangs. This subject or goal clearly is not so broad that an unlimited array of provisions could be considered relevant thereto. Indeed, . . . in previous decisions we have upheld initiatives containing various provisions related to even broader goals in the criminal justice system. (E.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 [promoting the rights of actual and potential crime victims]; Brosnahan v. Brown (1982) 32 Cal.3d 236, 247 [strengthening procedural and substantive safeguards for victims in the criminal justice system].)” (Id. at p. 576.)
In our view, the purpose of Proposition 83 is narrower than that of Proposition 21. The common purpose of the provisions of Proposition 83 is to protect society from the danger posed by sex offenders. (See, e.g., Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, §§ 2(e), 2(f), p. 127, eff. Nov. 8, 2006.) The provisions of Proposition 83 that punish sex offenders by increasing criminal penalties for violent and habitual offenders and those that control sex offenders by restricting where sex offenders may live, requiring Global Positioning Monitoring for sex offenders, expanding the definition of an SVP, and changing commitment terms for SVPs are reasonably related to the common purpose of protecting society from sex offenders. Since the provisions serve a common purpose, it is immaterial that they modify civil, criminal, and regulatory schemes.
II. Disposition
The order is affirmed.
WE CONCUR: McAdams, J., Duffy, J.
Former section 6604.1 provided: “(a) The two-year term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section. The initial two-year term shall not be reduced by any time spent in a secure facility prior to the order of commitment. For any subsequent extended commitments, the term of commitment shall be for two years commencing from the date of the termination of the previous commitment. [¶] (b) The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The 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 extended commitment proceedings.” (Italics added.)
Section 6604.1 provides: “(a) The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section. [¶] (b) The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The 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.” (Italics added.)