Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CV010582
Lambden, J.
Appellant John Sundquist appeals from a final judgment after jury trial extending his civil commitment as a sexually violent predator (SVP), and committing him to the custody of the director of the Department of Mental Health (DMH) for an indeterminate term. Appellant challenges the constitutionality and applicability of the latest changes to the Sexually Violent Predator Act (SVPA) on numerous grounds. For the reasons stated below, we affirm the judgment.
BACKGROUND
Appellant’s raises questions of law regarding the SVPA itself. The parties do not address appellant’s history or condition in their papers to this court.
Effective September 20, 2006, the SVPA was amended by Senate Bill No. 1128 (Stats. 2006, ch. 337, §§ 55-56, 62; hereinafter, Senate Bill 1128), which provided that persons found to be SVP’s would be civilly committed to indeterminate terms, as codified in Welfare and Institutions Code section 6604. On November 7, 2006, the California electorate adopted Proposition 83, which superseded Senate Bill 1128. Proposition 83 made the commitment term for SVP’s indeterminate as well. (Official Voter Information Guide for the California General Election (Nov. 7, 2006) text of Prop. 83, § 27, p. 137, eff. Nov. 8, 2006) Prior to the enactment of Senate Bill 1128 and Proposition 83, the SVPA authorized the commitment of SVP’s for two-year periods, at the end of which the prosecution was required to file a petition to extend the commitment and to prove beyond a reasonable doubt that the person remained an SVP. In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1167-1169 (Hubbart), our Supreme Court found this procedure to be constitutional, rejecting claims that it violated due process of law, and the equal protection and ex post facto clauses. In Kansas v. Hendricks (1997) 521 U.S. 346, 360-369 (Hendricks), the United States Supreme Court upheld the constitutionality of statutes regarding SVP’s similar to that considered in Hubbart.
References herein are to the Welfare and Institutions Code unless otherwise indicated.
As amended by Proposition 83, the SVPA requires that once a year, a person found to be an SVP and committed to the DMH shall have a current examination of his or her mental condition, which report shall include consideration of whether the committed person currently meets the definition of an SVP, as well as whether conditional release to a less restrictive alternative or 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 report must be in the form of a declaration, and prepared by a professionally qualified person. (Ibid.) The committed person may retain or, if he or she is indigent and so requests the court may appoint, a qualified expert or professional person to examine the person, and that appointed expert or professional shall have access to all records concerning the person. (Ibid.)
The committed person may petition the court for conditional release or discharge if the DMH determines the person no longer meets the definition of an SVP or can be conditionally released. (§ 6605, subd. (b).) Upon receipt of this petition, the trial court must set an order to show cause hearing, at which the court must determine whether probable cause exists to believe the petitioner’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, subds. (b) & (c).)
If the trial court makes such a finding, it must order a hearing on the petition. (§ 6605, subd. (c).) At that hearing, the petitioner is entitled to a jury trial and the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. (§ 6605, subd. (d).) The state’s attorney shall have the right to demand a jury trial and to have the committed person evaluated by experts chosen by the state. (Ibid.) The committed person has the right to demand a jury trial as well, and to have experts evaluate him or her on his or her behalf, including by court appointment if the person is indigent and requests an appointment. (Ibid.) The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. (Ibid.) If the court or the jury rules against the committed person, the term of commitment of the person shall run for an indeterminate period from the date of that ruling. (§ 6605, subd. (e).) If the court or jury rule in favor of the person, the person shall be unconditionally released and unconditionally discharged. (Ibid.) In addition to this petitioning and hearing procedure, if the DMH has reason to believe the committed person is no longer an SVP, it must seek judicial review of the person’s commitment and, if the superior court determines that the person is no longer an SVP, the person must be unconditionally released and unconditionally discharged. (§ 6605, subd. (f).)
Section 6608 governs petitions filed by a person committed as an SVP for conditional release or unconditional discharge without the recommendation or concurrence of the DMH. Upon receipt of the petition, the court must endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, must deny the petition without a hearing. (§ 6608, subd. (a).) The petitioner is entitled to assistance of counsel. (Ibid.) At a hearing, the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).) If the court determines that the petitioner would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court must order that the petitioner be placed with an appropriate forensic conditional release program operated by the state for one year, and the court retains jurisdiction of the person throughout the course of the program. (§ 6608, subd. (d).) At the end of one year, the court must hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior. (Ibid.) If the court denies the petition for placement in a conditional release program, or if the petition for unconditional discharge is denied, the SVP may not file a new application until one year has elapsed from the date of the court’s denial. (§ 6608, subd. (h).)
In June 2007, under the amended SVPA, the trial court committed appellant after jury trial to an indeterminate term. Appellant filed a timely notice of appeal.
DISCUSSION
I. Due Process
Appellant contends that the statutory amendments providing for an indeterminate term of commitment violate his due process rights under the Fourteenth Amendment of the United States Constitution because they switch the burden of proof to him to establish his fitness for release in future proceedings, and deprive him of mandatory, periodic judicial review of his continued commitment, requiring that we vacate his indeterminate commitment. We disagree.
Before addressing the merits of appellant’s arguments, we note that respondent argues that appellant has waived his right to raise his constitutional arguments on appeal by failing to raise them first in the court below. We reject this argument because appellant’s challenges to the amended SVPA raise issues regarding his substantial rights, and, if he had objected, the court could not have cured them. (See People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5 [“[d]efendant’s failure to object... would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial].) “A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” (People v. Vera (1997) 15 Cal.4th 269, 276-277.)
Regarding the merits, we conclude from our review of United States Supreme Court case law that the indeterminate term of commitment contained in the SVPA, as amended, complies with constitutional due process requirements. In order to make an initial civil commitment of a person to a mental institution, due process requires that the state prove by clear and convincing evidence that the person is mentally ill and that hospitalization is required for either the person’s welfare or for the protection of others. (Foucha v. Louisiana (1992) 504 U.S. 71, 75-76 (Foucha); Addington v. Texas (1979) 441 U.S. 418, 426-427 (Addington).) The Supreme Court has indicated that due process is flexible, and calls for such procedural protections as a particular situation demands. (Jones v. United States (1983) 463 U.S. 354, 367-368 (Jones).) Thus, when a criminal defendant is found to have committed a crime beyond a reasonable doubt, but found not guilty by reason of insanity, the state may commit the defendant without a separate proceeding to establish mental illness and dangerousness because the verdict adequately establishes the elements necessary to support commitment, even if the defendant has proven mental illness by only a preponderance of the evidence. (Foucha, at p. 76, citing Jones, at p. 363.)
The California Supreme Court has granted petition for review of a number of cases that address issues regarding the amended SVPA similar to those we address herein. The court granted review on July 9, 2008, of People v. McKee (2008) 160 Cal.App.4th 1517 (addressing issues regarding due process, equal protection and the ex post facto laws); on August 13, 2008, of People v. Johnson (2008) 162 Cal.App.4th 1263 (addressing issues regarding due process, ex post facto, double jeopardy, and equal protection laws), on August 20, 2008, of People v. Riffey (2008) 163 Cal.App.4th 474 (addressing issues regarding due process, ex post facto, double jeopardy, and equal protection laws); on October 1, 2008, of People v. Boyle (2008) 164 Cal.App.4th 1266 (addressing issues regarding ex post facto, double jeopardy, due process, and equal protection laws); and on October 16, 2008, of People v. Garcia (2008) 165 Cal.App.4th 1120 (addressing issues regarding due process, double jeopardy, ex post facto and equal protection laws, as well as cruel and unusual punishment).
Due process permits a person, once civilly committed, to be held “ ‘until such time as he has regained his sanity or is no longer a danger to himself or society.’ ” (Foucha, supra, 504 U.S. at pp. 77-78; Jones, supra, 463 U.S. at pp. 368, 370.) Also, “[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” (Foucha, at p. 79.)
In this case law, the Supreme Court has not expressed constitutional concerns regarding indefinite commitments along the lines of that provided for in the amended SVPA. (See Jones, supra, 463 U.S. at p. 368; see also Addington, supra, 441 U.S. at pp. 420, 425 [indefinite commitment].) Constitutional due process requirements do not prohibit involuntary indefinite commitments, provided that they are subject to adequate opportunities to determine the current status of the committed persons, ensuring that those who no longer qualify for commitment can obtain release. (Foucha, supra, 504 U.S. at p. 77; People v. Allen (2007) 42 Cal.4th 91, 103-104 [regarding mentally disordered offenders].) Thus, in Jones, supra, 463 U.S. 354, the United States Supreme Court held that due process permitted Jones’s confinement, after he was civilly committed as the result of being found not guilty by reason of insanity, to a mental institution until he regained his sanity or was no longer a danger to himself or the general public. (Jones, at p. 370.) The court approved of a congressional legislative scheme whereby the length of the commitment was indefinite subject to periodic review for suitability of release, noting that it was impossible to predict when or if a mentally ill person will recover. (Id. at pp. 368-369.)
Appellant argues his due process rights are violated by section 6608, as amended, because this provision shifts the burden of proof to him, allows the court to deny a petition for discharge filed pursuant to the section as frivolous without hearing, and does not provide for the appointment of a mental health expert for the committed person’s use. Taking these arguments one at a time, first we reject the argument that the amended SVPA is unconstitutional because the committed person must bear the burden of proving his or her right to release by a preponderance of the evidence. The United States Supreme Court in Jones implicitly approved the use of this burden of proof in review hearings involving insanity acquittees. (Jones, supra, 463 U.S. at pp. 356-358.) The court found that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society” because the criminal act indicates dangerousness and the insanity acquittal supports an inference of continuing mental illness. (Id. at p. 366.)
Appellant attempts to distinguish Jones, supra, 463 U.S. 354, on the grounds that “the Supreme Court has always viewed the status of [a person found not guilty by reason of insanity] as different from that of other persons subject to a civil commitment, at least during the time period that the person could have been confined pursuant to his criminal sentence had he simply been found guilty.” This is unpersuasive. The defendant in Jones was not challenging his commitment for the time he could have been incarcerated for his criminal offense. He made his challenge because he had been hospitalized for more than a year, which was the maximum period he could have spent in prison had he been convicted. (Id. at p. 360.) Thus, Jones put at issue the extent of procedural protection due to a person committed beyond his or her actual or potential prison term. Jones claimed that because his maximum term of confinement had expired, the state was required to prove at a civil commitment hearing that he was mentally ill and dangerous. (Ibid.) The court rejected this argument. It held that the process provided when he was found not guilty by reason of insanity was sufficient to meet the due process requirements for civil commitment, and that it was not inappropriate in subsequent hearings, including those beyond the period for which he could have been incarcerated, to place the burden of proof on the committed person. (Id. at pp. 364-368.) These postincarceration hearing procedures reviewed in Jones are analogous to the petition for release procedure provided for in section 6608. Therefore, we find that placing the burden on appellant to prove his right to release by a preponderance of the evidence, as provided for in section 6608, does not violate his federal constitutional due process rights.
Second, appellant does not explain how his constitutional rights are violated by a procedure whereby the court is able to dismiss a frivolous petition without a hearing. We do not find a constitutional issue.
Third, although section 6608 does not mention a mental health expert appointment, a committed person may retain a mental health professional for the annual examination and, if the person is indigent and so requests, the court may appoint a qualified expert or professional person to examine the person, and that appointed expert or professional shall have access to all records concerning the person. (§ 6605, subd. (a).) This adequately addresses a petitioner’s need for access to a mental health expert. We see no reason why petitioner, via the counsel to which he or she is entitled pursuant to section 6608, could not ensure the participation of that mental health expert in a hearing about the petitioner’s condition, if one were to occur.
Appellant acknowledges that the United States Supreme Court held in Hendricks, supra,521 U.S. 346, that a Kansas statute similar to the SVPA before its amendment contained sufficient constitutional safeguards so as to comply with federal due process requirements. Appellant attempts to distinguish Hendricks from the present circumstances by pointing out that the Kansas Act required the state to prove beyond a reasonable doubt that the defendant was an SVP, allowed the defendant the right to retain a mental health expert at state expense, and required the court to hold annual hearings to determine whether to continue the commitment. (Hendricks, at p. 353). Appellant concludes that “the rationale of the Hendricks opinion demonstrates an indeterminate commitment violates due process of law.”
Appellant also cites a reference contained in Hubbart, supra, 19 Cal.4th at pages 1166-1167, to the “relatively brief” commitment period provided for in the SVPA before its most recent amendment, but that reference was of no significant import in the holding of that case.
We do not agree with appellant’s analysis. It is correct that, unlike the Kansas Act, the prosecution under the amended SVPA will have the burden of proof only when the DMH has endorsed a petition for release. However, as indicated in Hendricks, the Kansas Act also imposed potentially indefinite terms and required annual reviews. (Hendricks, supra, 521 U.S. at p. 353.) The United States Supreme Court, in rejecting the argument that an indefinite commitment, standing alone, establishes that the statutes in dispute were punitive, found that “[f]ar from any punitive objective, the confinement’s duration is instead 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.... [¶] Furthermore, commitment under the [Kansas] Act is only potentially indefinite. The maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. [Kan. Stat. Ann.,] § 59-29a08. If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement. [Citation.] This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the [Kansas] Act to remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.” (Hendricks, supra, 521 U.S. at pp. 363-364.)
The Supreme Court’s reference to Kansas Statute Annotated section 59-29a08 is particularly instructive, as the statute provides that a committed individual must have a current examination of his or her mental condition on a yearly basis. The report of this examination must be forwarded to the trial court that committed the individual, which must conduct an annual review of the committed individual’s status. If the court determines “probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is safe to be placed in transitional release, then the court shall set a hearing on the issue.” (Kan. Stat. Ann., § 59-29a08, subd. (c)(1).)
Similarly, as we have discussed, under section 6605, subdivision (a), of the amended SVPA, the DMH is required to conduct an examination of the current mental condition of each committed individual at least once every year. The annual report must 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 report, in the form of a declaration, is filed with the trial court that committed the individual. (Ibid.) If the DMH determines that the person no longer meets the definition of an SVP, or conditional release is appropriate, the DMH must authorize the committed individual to file a petition with the trial court (§ 6605, subd. (b)), and the court must then hold a hearing to determine if 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”; if the court so finds, it must set a hearing on the issue. (Id., subd. (c).)
Thus, under both the Kansas Act reviewed in Hendricks, supra, 521 U.S. 346, and the amended SVPA, a committed individual is evaluated on an annual basis, and a report of that evaluation is sent to the court for review. A hearing is held if there is reason to believe the committed individual should be released. Given these similarities, Hendricks supports our conclusion that the amended SVPA meets due process requirements.
Appellant also relies on Foucha, supra, 504 U.S. 71, to argue that the shift of the burden of proof to the committed person is unconstitutional. In Foucha, the Supreme Court reviewed a Louisiana statute that allowed the continued detention of insanity acquittees who were no longer mentally ill, unless the committed person could prove he was no longer dangerous. (Id. at p. 73.) The Supreme Court found that the statute violated the requirements of due process because its procedures, including its placing of the burden on the committed person to prove he or she was not dangerous, were inadequate to protect Foucha’s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility. (Id. at pp. 82-83.) Appellant contends the amended SVPA suffers from the same problem.
We disagree. In Foucha, supra, 504 U.S. 71, the Supreme Court, consistent with its ruling in Jones, supra, 463 U.S. 354, held that a person under civil commitment “may be held as long as he is both mentally ill and dangerous, but no longer.” (Foucha, supra, 504 U.S. at p. 77.) The court rejected the state’s assertion that it could “indefinitely confine” Foucha because, “although not mentally ill, he might be dangerous to himself or others if released.” (Id. at p. 86 (conc. Opn. of O’Connor, J.).) Consistent with Foucha, the amended SVPA permits an SVP to be held only as long as he is both mentally ill and dangerous, but no longer. To this end, the SVPA requires the trial court to conditionally release the committed person if he or she “would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community” (§ 6608, subd. (d)), and to unconditionally release him or her after one year if “by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others[.]” (Ibid.)
Appellant also argues that the amended SVPA creates an unacceptable risk that a committed person will have his commitment continued improperly, as “[t]he government can avoid ever having to make any further showing simply by not filing a petition under section 6605.” He asserts without elaboration that “the DMH does not act independently under the SVPA when it reviews the mental health status of a person under section 6605.” This argument fails to acknowledge that the DMH, while a state agency, is not an arm of law enforcement, but an independent body with its own statutory obligations, including to evaluate committed persons. Appellant provides no reason why we should not presume that the agency faithfully and honestly carries out its duty, and we do so. (See Evid. Code, § 664 [“[i]t is presumed that official duty has been regularly performed”].)
II. Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment
Appellant next argues that his indeterminate commitment is punitive, and thus violates the federal constitutional prohibition on ex post facto legislation. This is incorrect.
The ex post facto clause of the United States Constitution applies exclusively to penal statutes. (Hendricks, supra, 521 U.S. at pp. 369-370.) In determining whether a commitment scheme is civil in nature, a reviewing court ordinarily defers to the Legislature’s stated intent. (Id. at p. 361.) Although a Legislature’s manifest intent of the proceeding as civil is not always dispositive, a party challenging the statute must provide “ ‘the clearest proof’ ” that a statutory scheme is “ ‘so punitive either in purpose or effect’ ” it negates the state’s intention to deem it to be civil in nature. (Hendricks, supra, 521 U.S. at p. 361.)
In enacting California’s SVPA in 1996, the Legislature expressed that no punitive purpose was intended. (Hubbart, supra, 19 Cal.4th at pp. 1143-1144 & fn. 5.) Nonetheless, appellant argues that the punitive purpose of the indefinite commitment period in Proposition 83 “is evident” from the scope of the reforms embodied in the proposition, as well as the “intent clause” that accompanied it. Appellant points to the statement that “[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., supra, at p. 138.) In doing so, appellant relies on the term “punish,” but ignores the term “control” in this same sentence. Given the long-standing non-punitive intent of the SVPA and the subject matter of the proposition, the term “punish” more likely than not referred to those portions of Proposition 83 that increased punishment for certain criminal offenses. There is no indication that it was intended to refer to the changes in civil commitment procedures, and the inclusion of the term “control” in the same sentence indicates a non-punitive intent for such procedures. Thus, appellant does not establish that this intent clause shows an “evident” punitive purpose.
Appellant also argues that the indeterminate term of commitment is punitive in effect. As we have already discussed, in Hendricks, supra, 521 U.S. at pages 363-364, the United States Supreme Court rejected the argument that the Kansas Act was punitive. In doing so, the court tellingly noted that “[i]f detention for the purpose of protecting the community from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.” (Hendricks, at p. 363.) The court also noted about the SVPA it considered, “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. The existence of a scienter requirement is customarily an important element in distinguishing criminal from civil statutes. [Citation.] The absence of such a requirement here is evidence that confinement under the statute is not intended to be retributive.” (Id. at p. 362.)
Appellant argues that the amended SVPA is punitive based on the factors the Supreme Court discussed in Kennedy v. Mendoza (1963) 372 U.S. 144, as relevant to the inquiry of whether a federal statute is punitive or regulatory in nature. (Id. at pp. 168-169.) However, as the discussion in Hendricks indicates, this is not necessarily the case. Along with his inability to show a scienter requirement, appellant fails to show that the civil commitment provided in the amended SVPA historically is regarded as “punishment,” or that the SVPA is intended to promote the traditional aims of punishment, addresses a criminal behavior as opposed to a mental disorder, is intended to punish (for example, as opposed to treat the mental illness involved), or provides for a commitment period that is excessive in light of that mental disorder.
In Hubbart, supra, 19 Cal.4th at page 1171, the California Supreme Court followed Hendricks and rejected challenges to the former version of the SVPA based on the ex post facto and double jeopardy clauses of the federal Constitution. Both courts focused not on whether the commitment term was fixed or indefinite, but whether or not there were adequate procedural safeguards in place to ensure that a committed person who no longer met the conditions for confinement would be released. (Hendricks, supra, 521 U.S. at pp. 362-363; Hubbart, supra, 19 Cal.4th at p. 1177.) As we also have already discussed, sufficient procedural safeguards exist under the amended SVPA. Its provisions for mandated annual examination, petitioning, conditional release, and unconditional discharge provide that a person will be discharged if and when his or her condition so changes that they no longer meet the criteria for commitment as an SVP. Appellant has not established that anything more is required. The amended SVPA is civil and not punitive in nature. Accordingly, it does not implicate ex post facto concerns.
Given the amended SVPA’s civil nature procedural safeguards, and the mental disorder it addresses, we also reject appellant’s arguments that the amended SVPA violates the double jeopardy clause of the United States Constitution, and constitutes an unconstitutional cruel and unusual punishment in violation of the Eighth Amendment of the federal Constitution. These arguments are premised on the view that the amended SVPA is criminal and punitive in nature, provides for a “sentencing scheme that is irrational and arbitrary,” or “imposes an indeterminate term [that] is disproportionate to the offense.”
III. Equal Protection
Appellant next argues that the SVPA violates the equal protection clause of the federal and state Constitutions because SVP’s are similarly situated to those committed pursuant to the Mentally Disordered Offender Act (MDO) or upon being found not guilty by reason of insanity (NGI), but are subject to different commitment procedures. We find no equal protection violation.
“ ‘ “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. ” ’ [Citation.] ‘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.) “Similarly situated” for this purpose means similarly situated for purposes of the law challenged. (Ibid.) Therefore, the first step in equal protection analysis is to determine if the identified groups are similarly situated for the purposes of the law that is being challenged. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) Our Supreme Court upheld the original SVPA against an equal protection challenge. (Hubbart, supra, 19 Cal.4th at pp. 1168-1170.)
Persons subject to the MDO Act and the SVPA are not similarly situated. The fact that “[i]nvoluntary commitment under the MDO Act is directly related to the crime for which the defendant was incarcerated” distinguishes SVP’s from MDO’s. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1162.) “Moreover, 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 ([§] 6606, subd. (b)).” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.)
As for NGI’s, their involuntary civil commitment is the direct consequence of a criminal act, and the commitment forms an alternative to the prison term that would have been imposed if the person had been found to have been sane at the time of the commission of the underlying crime. (See Pen. Code, § 1026.) The NGI’s mental illness must exist during prior conduct, while the amended SVPA applies only if the person poses a future risk of reoffending. (See Pen. Code, § 1026; Welf. & Inst. Code, § 6600, subd. (a)(1).) The differing definitions of those coming within the amended SVPA scheme and the NGI commitment scheme pose different treatment requirements and may properly trigger different commitment terms and release procedures without offending equal protection of the laws.
Furthermore, the voters recognized that SVP’s stand apart from others civilly committed in their likelihood of reoffense and resistance to treatment. A statement accompanying Proposition 83 stated: “Sex offenders have very high recidivism rates. According to a 1998 report by the U[nited] S[tates] Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend, and they prey on the most innocent members of our society. More than two-thirds of the victims of rape and sexual assault are under the age of 18. Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.” (Voter Information Guide, Gen. Elec., supra, Prop. 83, § 27, p. 127.)
Based on this analysis, we conclude that appellant’s equal protection argument fails because SVP’s are not similarly situated to MDO’s or NGI’s.
In light of our holding, we have no need to discuss appellant’s “strict scrutiny” argument.
IV. First Amendment
Appellant also argues that the limitations placed on his right to petition the court for release under the SVPA violate his rights under the First Amendment of the federal Constitution to petition the court for redress of grievances. Appellant asserts that the amended SVPA “denies SVP detainees of a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.”
We agree with the People that appellant’s claim fails on its merits. Appellant relies on Ex parte Hull (1941) 312 U.S. 546, in which the United States Supreme Court found a prison regulation to be unconstitutional. The regulation required prisoners to submit all habeas corpus petitions and other legal documents to the prison’s institutional welfare office and to the parole board’s legal investigator, and these petitions and documents would only then be forwarded to the court if they were deemed to be “properly drawn.” (Id. at pp. 548-549.) The Supreme Court ruled that the regulation was invalid because the state and its officers “may not abridge or impair petitioner’s right to apply to a federal court for writ of habeas corpus. Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for the court alone to determine.” (Id. at p. 549.)
We address the merits of appellant’s claim. Therefore, we do not address the People’s argument that the claim must fail because there is no indication that appellant has been denied access to the courts, and that a constitutional challenge to a statute cannot prevail if it is based on speculation that “ ‘ “ ‘in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.’ ” ’ ” (People v. Hsu (2000) 82 Cal.App.4th 976, 982.)
Unlike in Ex parte Hull, supra, 312 U.S. 546, none of the provisions of the SVPA impairs appellant’s right to petition the courts for a writ of habeas corpus, which is provided for by section 7250. Appellant contends that the petition provision in section 6605 depends on DMH approval, and that this is analogous to the regulation discussed in Ex parte Hull. While this is not necessarily the case, given that the DMH’s approval is based on its evaluation of the SVP’s mental condition and not a review of his or her legal papers, in any event an SVP can petition for release, pursuant to section 6608, without anyone’s consent, and is entitled to the assistance of counsel in those proceedings. He or she is not prohibited from the use of expert witnesses, including witnesses who may have been retained pursuant to section 6605, subdivision (a), to examine him or her. His or her petition is subject to dismissal only if it is based on frivolous grounds. Neither Ex parte Hull nor any other authority cited by appellant stands for the proposition that the First Amendment right of access to the courts encompasses the right to a particular type of proceeding. This proposition is obviously incorrect; for example, by this reasoning, a court’s summary denial of a petition for writ of habeas corpus without hearing would violate the petitioner’s First Amendment rights.
Accordingly, we reject appellant’s First Amendment challenge.
V. Single Subject Rule
Appellant next argues that the SVPA violates the single subject rule that applies to California’s initiative measures and, therefore, is unconstitutional. This is also unpersuasive.
Article II, section 8, subdivision (d), of the California Constitution provides that an “initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” An initiative measure does not violate the single subject requirement if, despite its varied collateral effects, its parts are reasonably germane to each other and to the general purpose or object of the initiative. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 575 (Manduley).) The single subject rule requires the various provisions of the measure be “ ‘ “reasonably related to a common theme or purpose” ’ ” and, accordingly, our Supreme Court has upheld measures that disclose a reasonable and common sense relationship among the various components in furtherance of a common purpose. (Ibid.)
The Legislative Analyst Summary of Proposition 83 contained in the official ballot pamphlet stated that it “[i]ncreases penalties for violent and habitual sex offenders and child molesters”; “[p]rohibits registered sex offenders from residing within 2,000 feet of any school or park”; “[r]equires lifetime Global Positioning System monitoring of felony registered sex offenders”; “[e]xpands definition of a sexually violent predator”; and “[c]hanges current two-year involuntary civil commitment for a sexually violent predator to 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 for unconditional discharge.” (Voter Information Guide, Gen. Elec., supra, Prop. 83, p. 42.)
Appellant contends 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.” This argument cannot stand in light of Manduley, supra, 27 Cal.4th 537, in which the California Supreme Court considered a claim that Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, violated the single subject rule. (Manduley, at pp. 544-545.) Proposition 21 addressed gang violence, the sentencing of repeat offenders, and juvenile crime. (Id. at pp. 574-575.) The petitioners argued that these subjects were “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 Supreme Court found that the purpose of the measure was narrower, addressing the problem of juvenile crime and gang related crime. (Id. at pp. 575-577.) The court found that the provisions were “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.” (Id. at p. 576.)
The common purpose of the provisions of Proposition 83 is to help protect Californians from the threats posed by sex offenders. (See, e.g., Voter Information Guide, Gen. Elec., supra, Prop. 83, §§ 2(e), (f), p. 127.) That purpose is no broader than Proposition 21’s purpose of addressing the problem of juvenile crime and gang related crime. Therefore, Proposition 83 does not violate the single subject rule.
Given our ruling, we do not need to address the People’s argument that, even if Proposition 83 were not enforceable, petitioner would remain committed under the emergency legislation, Senate Bill 1128, that was signed into law in September 2006.
VI. Ineffective Assistance of Counsel
Finally, appellant argues that he was denied effective assistance of counsel because his trial attorney failed to object to the imposition of an indeterminate term of commitment on any of the constitutional grounds appellant raises in this appeal. This argument also fails.
An ineffective assistance of counsel claim requires that a defendant show that counsel’s performance was deficient in that it “fell below an objective standard of reasonableness” under “prevailing norms,” and that he was prejudiced by counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.)
To establish deficient performance on direct appeal where, as here, the record does not disclose trial counsel’s reasons for the challenged act or omission, a defendant must demonstrate that there could be no possible satisfactory explanation or that counsel was asked on the record to explain his or her reasons and failed to do so. (People v. Pope (1979) 23 Cal.3d 412, 426, & fn. 17, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
It is not deficient for counsel to fail to register a meritless objection. (People v. Jones (1998)17 Cal.4th 279, 309.) Appellant’s claim fails because his constitutional claims are without merit.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.