Opinion
Review Granted Feb. 26, 1997.
Previously published at 50 Cal.App.4th 1155
Rowan K. Klein and Klein & Crain, Santa Monica, Donald Specter, Arnold Erickson, San Quentin, for Petitioner.
No appearance for Respondent.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Senior Assistant Attorney General, Morris Lenk and Bruce M. Slavin, Deputy Attorneys General, for Real Party in Interest.
United States Justice Foundation, Gary G. Kreep, Kevin T. Snider, Escondido, for Amicus Curiae on behalf of Real Party in Interest.
BAMATTRE-MANOUKIAN, Associate Justice.
At issue in this case is the constitutionality of the Sexually Violent Predators Act (Welf. and Inst.Code, § 6600 et seq.). Petitioner Christopher Evans Hubbart seeks a writ of prohibition to stay all further proceedings against him under the Act on grounds that it violates ex post facto and double jeopardy protections as applied to him and that on its face it violates constitutional guarantees of equal protection and due process of the law. We find the Act is constitutional both on its face and as applied to Hubbart. We therefore deny his writ petition.
Summary of the Sexually Violent Predators Law
The Sexually Violent Predators (SVP) Act, adding sections 6600 through 6608 to the Welfare and Institutions Code, was enacted October 11, 1995, effective January 1, 1996. (Stats.1995, chs. 762, 763.) In Section 1, the Legislature set forth its findings and summarized the purpose of the new law, as follows:
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
"The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, "The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes."
A "sexually violent predator" is defined in section 6600, subdivision (a), as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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." Sexually violent offenses, for purposes of the SVP law are listed in section 6600, subdivision (b).
Penal Code section 261, subdivision (a), paragraph (2); section 262, subdivision (a), paragraph (1); section 264.1; section 288, subdivision (a) or (b); section 289, subdivision (a), or sodomy or oral copulation in violation of section 286 or 288a. Sexually violent offenses may also include a finding of not guilty by reason of insanity for an offense described in subdivision (b), a conviction resulting in a finding that the person was a mentally disordered sex offender, a conviction in another state for an offense that includes all the elements of an offense described in subdivision (b), or a conviction prior to July 7, 1977, of an offense described in subdivision (b), even if the offender did not receive a determinate sentence for the offense. (§ 6600, subdivision (a), as amended Stats.1996, ch. 462, § 4, eff. 9/13/96.)
Under section 6601, if the Director of the Department of Corrections determines that a prisoner may be a sexually violent predator, the Director shall refer that person for an initial screening evaluation at least six months prior to his or her scheduled release date. (§ 6601, subds. (a) and (b).) If it is determined that the person is likely to be a sexually violent predator, he or she is then referred to the State Department of Mental Health for a full SVP evaluation. (§ 6601, subd. (b).)
This six-month time does not apply during the first year the law is operative. (§ 6601, subd. (j).)
The person is evaluated by two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol. "The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).)
If both of the evaluators find that the person "has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the Department of Mental Health requests a petition for commitment under section 6602 and forwards the evaluations and supporting documents to the county of the person's latest conviction. (§ 6601, subds. (d), and (i).) If the designated attorney concurs with the recommendation, a petition for commitment is filed in superior court. (§ 6601, subd. (i).)
A probable cause hearing is then held before a Superior Court judge. The individual named in the petition is entitled to assistance of counsel at this hearing. If the judge determines there is probable cause to believe that the person is likely to engage in sexually violent predatory criminal behavior upon his or her release from prison, the judge shall order that a trial be conducted "to determine whether the person is, by reason of diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release...." (§ 6602.) The person subject to the petition is entitled to a trial by jury, the assistance of counsel and the right to retain experts or professional persons to perform further evaluations. He or she is also entitled to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) A unanimous verdict is required in any jury trial. (§ 6603, subd. (d).)
If an inmate's parole or temporary parole hold will expire before a probable cause hearing is conducted, the agency bringing the petition may request urgency review. (§ 6601.5, as amended Stats.1996, ch. 462, § 6, eff. 9/13/96.)
The burden of proof is on the state to show that the person is a sexually violent predator "beyond a reasonable doubt." (§ 6604.) If it is so determined, the person shall be committed for a period of two years "to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility...." The person shall not be kept in confinement longer than two years unless a new petition is filed and an extended commitment is obtained from the court. (Ibid.)
A person committed under the SVP law shall have an examination of his or her mental condition at least once every year, and is entitled to the appointment of an expert and to review all records. (§ 6605, subd. (a).) Unless the person affirmatively waives the right to a hearing, the superior court must annually set a show cause hearing to determine if the person's condition has so changed that he or she would not be a danger to the health and safety of others if released from confinement. (§ 6605, subd. (b).) If the court so finds, then the person is entitled to a full trial with the same rights and constitutional protections as were afforded at the initial commitment hearing. (§ 6605, subd. (d).) Also, at any time that the Department of Mental Health has reason to believe that the person is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).)
Finally, the person can be placed on conditional release upon a finding that he or she is not likely to engage in sexually violent predatory criminal acts while under supervision and treatment in the community. (§ 6607.) A conditional release hearing may be held at any time after a year from the date of the commitment order, upon the recommendation of the Director of Mental Health or upon a petition by the SVP. (§ 6608.)
Any person committed as an SVP must be provided with treatment for his or her diagnosed mental disorder, whether or not it is found the person is amenable to treatment. (§ 6606, subds. (a) and (b).) The treatment "shall be consistent with current institutional standards for the treatment of sex offenders ...." (§ 6606, subd. (c).)
Statement of the Case
On January 2, 1996, the District Attorney of Santa Clara County filed a petition to commit Christopher Evans Hubbart as a sexually violent predator pursuant to section 6600. The petition alleged that Hubbart was presently a prison inmate due to be released January 25, 1996.
A declaration of the deputy district attorney stated that Hubbart qualified under section 6600 subdivision (b) as a sexually violent offender in that he had been convicted in 1982 of a violation of Penal Code section 288a, subdivision (c) [oral copulation by force] and former Penal Code section 261, subdivision (2) [rape by force]. Furthermore, he had been committed to the California State Mental Hospital at Atascadero in 1973 pursuant to violations of former Penal Code section 261.3 [rape by force], Penal Code section 286 [sodomy] and Penal Code section 220 [assault with the intent to commit rape]. Hubbart was presently serving a sentence for violating Penal Code sections 236-237 [false imprisonment]. The declaration informed the court that the Director of the Department of Mental Health had requested Hubbart's commitment under section 6602 and that Hubbart had been evaluated by two practicing psychiatrists who concurred that he had a mental disorder such that, without appropriate treatment and custody, he was likely to engage in acts of sexual violence upon his release from prison.
The evaluations by licensed clinical psychologists Craig Nelson and Amy Phenix, both PhDs, were attached to the petition. Based on probation officers' reports, these evaluations reflected the following criminal history. In 1972, when he was 21 years old, Hubbart was arrested and charged with eleven counts of burglary (Pen.Code, § 459), all The circumstances of the qualifying crimes were summarized as follows. Hubbart entered the homes of women who were strangers to him, either during the night or in the early morning hours. He threatened his victims, tied their hands together and placed something over their heads, usually a pillow case. He then either forcibly raped or sodomized them. The probation officer's report quoted Hubbart as saying he had committed similar acts with 20 women.
Hubbart pled to three counts of sodomy and one of forcible rape and was committed to Atascadero State Hospital in 1973, where he received both individual and group psychotherapy as well as behavioral treatments developed specifically for sex offenders. He was released to outpatient treatment in November of 1979, but was readmitted to Atascadero in 1981 when it became apparent to his treating doctor that he had been reoffending. He was released to court in 1982 and was convicted of forcible rape (former Pen.Code, § 261, subd. (2)), oral copulation by force (Pen.Code, § 288a, subd. (c)), six counts of false imprisonment (Pen.Code, §§ 236-237) and numerous burglary counts.
The circumstances of these crimes were similar to those described above. Hubbart entered the homes of women during the nighttime hours, threatened them, bound their hands, covered their faces and then committed various acts of rape, digital penetration, sodomy, forced enemas or a combination thereof.
In September of 1982, Hubbart was sentenced to 16 years in state prison. In April of 1990, Hubbart was released on parole and just three months later he assaulted a woman jogger by running up behind her, grabbing her, fondling her breast and pulling her backwards. Parole was revoked and he was sentenced to five years for violating Penal Code sections 236-237 (false imprisonment).
Both Drs. Nelson and Phenix concluded that Hubbart had a diagnosable mental disorder. Dr. Nelson described this as "a definite diagnosis of 302.9, Paraphilia Not Otherwise Specified, Bondage, Rape and Sodomy of Adult Women, Severe...." Dr. Phenix arrived at a similar diagnosis: "Axis I 302.9 Paraphilia, not otherwise specified with rape, sodomy and klismaphilia toward adult women, severe." Dr. Phenix explained this as follows: "The paraphilia rape involves the recurrent, intense sexual urges, fantasies and behaviors involving forceful, unwanted sexual penetration of the victim. That is, penetrating their bodies against their will.... The severity of the paraphilia is determined by the frequency to which these acts have been perpetrated. In the case of inmate Hubbart, the unwanted sexual penetration includes rape, sodomy and giving enemas and the paraphilia is severe."
This number refers to a specified diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), published by the American Psychiatric Association (4th ed.1994).
Drs. Nelson and Phenix next considered the question whether Hubbart was likely to engage in sexually violent criminal behavior in the future. Both answered "YES." Factors supporting this finding were 1) the high frequency of sexual assaults committed by Hubbart during relatively short periods of time when he was in the community, 2) the fact that he had not benefited from treatment specific to sexual deviancy, 3) the diversity of his sexual offenses, which included prowling women, voyeurism, frotteurism, bondage, rape, sodomy, and administering forced enemas, 4) the compulsive, chronic and patterned nature of his sexual assaults, 5) the brutality and forcefulness of his assaults, 6) the fact that he had a conditional release failure and a parole failure within a short time after re-entering the community, 7) the lack of consistent evidence that he had gained any meaningful insight into the seriousness of his sexual deviancy, 8) evidence showing lack of empathy and remorse for his victims, 9) the lack of community structure or support available upon release and the fact that there would be no parole or conditional release supervision.
Both evaluators found Hubbart was a "high risk" to engage in sexually violent On January 19, 1996, Hubbart filed a demurrer to the petition for commitment on the ground that the Sexually Violent Predators law was unconstitutional on its face and as applied to him. He claimed that the law violated ex post facto and double jeopardy clauses of the California and United States Constitutions and in addition that it violated constitutional guarantees of equal protection and substantive due process. A hearing was held on February 2, 1996 and the court took the matter under submission.
On February 9, 1996, the court issued its statement of decision. The court found that the SVP law was civil rather than criminal in nature. Therefore it did not violate ex post facto or double jeopardy provisions in the Constitution. The court further found no equal protection or due process violations. The court therefore concluded that the law was constitutional.
Hubbart petitioned this court for a writ of prohibition and a request for a stay. We denied the requested relief on February 23, 1996, whereupon Hubbart petitioned the California Supreme Court for review. On April 18, 1996, the Supreme Court retransferred the matter to this court with directions to vacate our order denying prohibition and to issue an alternative writ to be heard when the proceeding was ordered on calendar. On May 3, 1996, we issued an alternative writ, requested opposition and reply papers and ordered all further proceedings stayed.
ISSUES
Petitioner contends that the SVP law, as applied to him, violates constitutional prohibitions against ex post facto and double jeopardy because it is penal in purpose and effect and constitutes increased punishment for a crime committed prior to its enactment. He further contends that on its face the statute violates equal protection and due process in that it subjects him to long-term confinement in the absence of the requisite proof that he is mentally ill and currently dangerous and without providing him effective treatment.
When we review a constitutional challenge to a legislative enactment, "it is our duty to uphold [the] statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity." (Mills v. Superior Court (1986) 42 Cal.3d 951, 957, 232 Cal.Rptr. 141, 728 P.2d 211; People v. Jackson (1980) 28 Cal.3d 264, 317, 168 Cal.Rptr. 603, 618 P.2d 149.) We therefore "resolv[e] all doubts in favor of the Act." (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193; Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252, 48 Cal.Rptr.2d 12, 906 P.2d 1112.) "[T]he presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions in mind. [Citations.] In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215.)
I. Ex Post Facto
The ex post facto clauses of both the United States and the California Constitutions prohibit retroactive application of penal statutes. (U.S. Const., art. I, § 9, cl. 3; Cal. Const., art. I, § 9.) Both clauses are analyzed identically. (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-296, 279 Cal.Rptr. 592, 807 P.2d 434.) A statute violates the ex post facto prohibition if it is a criminal or penal law which makes more burdensome the punishment for a crime after its commission. (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30; People v. McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)
Punishment or Treatment?
Since the ex post facto clauses apply only to legislation with a punitive effect or purpose, the threshold determination in any The government's motivation is central to this issue. (See, e.g., Pro-Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1684, 54 Cal.Rptr.2d 600.) We therefore look first to the stated legislative purpose of the statute. In passing the SVP Act, the Legislature described it as imposing a "judicial commitment" for the purpose of treating persons representing a "danger to the health and safety of others." The Legislature stated its intent "that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1.)
As petitioner points out, the fact that the Legislature has declared a non-punitive intent is only the first step in the ex post facto inquiry. (People v. McVickers, supra, 4 Cal.4th at p. 88, 13 Cal.Rptr.2d 850, 840 P.2d 955; People v. Coronado (1994) 28 Cal.App.4th 1402, 1407, 33 Cal.Rptr.2d 835.) A law may be found to be punitive, in spite of an express legislative intent to the contrary, if the overall design and effect of the statute are not consistent with that intent. (United States v. Huss (9th Cir.1993) 7 F.3d 1444, 1447-48.) However, a person seeking to overcome the presumption favoring the Legislature's stated intent must provide the " 'clearest proof' " that the statutory scheme is " 'so punitive either in purpose or effect as to negate [that] intention.' " (Allen v. Illinois (1986) 478 U.S. 364, 369, 106 S.Ct. 2988, 2992, 92 L.Ed.2d 296, quoting United States v. Ward (1980) 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742.) Otherwise the stated goals of the Legislature are controlling. (Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644; Flemming v. Nestor (1960) 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435.)
Petitioner contends that the legislative history of the SVP Act belies a non-punitive intent. The comments and analysis accompanying the bill (Assem. Bill No. 888), he argues, indicate that the legislators' primary purpose was to insure the continued incarceration of violent sex offenders, in response to public outcry. As the legislative analysis accompanying the final version of the bill explained, "[t]here is no procedure to prevent the release into unsuspecting communities of sexually violent offenders who have completed their prison sentences." (Assem. Bill No. 888, Floor Analysis, dated 9-12-95.) The SVP legislation was intended to provide such a procedure.
Selected statements from the legislative history of a statute which might reflect a punitive motivation are not sufficient to overcome the presumption of constitutionality consistent with the statute's stated purposes. (State v. Carpenter (1995) 197 Wis.2d 252, 541 N.W.2d 105, 112, fn. 11; Wiley v. Bowen (1987) 824 F.2d 1120, 1122.) Here the legislative analysis of Assembly Bill No. 888 contains numerous references to the proposed procedure as a "civil commitment." (See, e.g., Sen. Comm. on Crim. Procedure, Assem. Bill No. 888, Bill Analysis, p. 3, ["California needs a civil commitment procedure to allow the state a means to place and treat sexually violent predators...."].) Indeed the sentence immediately following the one quoted above by petitioner states that the bill "establishes civil commitment procedures for the placement and treatment of sexually violent offenders in a secure mental health facility following their release from prison." Furthermore, we do not believe that concern about the danger posed by the release of violent sex offenders into the community necessarily indicates a punitive legislative intent. Rather the intent, as the Legislature plainly stated, was that "these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1.)
People v. Gibson--"Part of the Punishment"
Petitioner argues that the SVP Act is similar in all relevant respects to the Mentally Disordered Offenders (MDO) law (Pen.Code, §§ 2960-2981), which was found in People v. In Gibson the court examined the design and effect of the MDO statute, noting its "overwhelming penal attributes." (People v. Gibson, supra, 204 Cal.App.3d at p. 1432, 252 Cal.Rptr. 56.) Involuntary commitment under the MDO law was directly related to the crime for which the defendant was incarcerated. Treatment was a condition of parole, and failure to follow the treatment plan during the parole period could result in a parole violation and return to prison. The new law therefore resulted in a potentially more burdensome punishment for a crime after its commission. A person subject to the MDO commitment process could be forced to defend a new adjudication of a past offense since the law applied to any felony offense involving the use of force, violence or the infliction of great bodily injury. MDO commitment proceedings were initiated by prison officials or district attorneys. And the purpose of the law was not solely to provide treatment for the safety of the committed person but was primarily to protect the public, the same purpose traditionally associated with imprisonment for criminal conduct. (Id. at pp. 1432-1435, 252 Cal.Rptr. 56.)
The MDO law has since been amended and now lists, as does the SVP law (§ 6600, subd. (b)), the predicate offenses. (Pen.Code, § 2962, subd. (e)(2), added by Stats.1995, ch. 761, § 1.)
The court in Gibson weighed all of these factors and concluded that the MDO statutes violated ex post facto prohibitions, for two reasons: "because the provisions: (1) are applicable only to persons who were convicted for certain crimes and who are still serving their terms of imprisonment on the operative date of the legislation [ ], and mandate a potentially onerous change in the terms of parole which is part of the sentence for a criminal conviction [ ],; and (2) potentially could result in custody for life in a state hospital setting without proof that the person is either gravely disabled or demonstrably dangerous as a result of mental illness." (People v. Gibson, supra, 204 Cal.App.3d at p. 1435, 252 Cal.Rptr. 56.)
While the SVP Act has some attributes similar to the MDO law, it differs in several respects, most importantly with regard to the two reasons for the holding in Gibson. Treatment of an SVP is not a condition of parole and therefore the new law does not have the potential for extending the sentence for the underlying crime. An SVP is committed under a procedure separate from the criminal process and contained not in the Penal Code but in the Welfare and Institutions Code. Unlike the MDO law, a finding that a person is an SVP is not necessarily linked to the criminal conviction for which the person is serving a sentence, but is based upon a history of sexually violent behavior and a current diagnosis of a mental disorder making the person a danger to others.
These are particularly relevant distinctions in light of the ex post facto analysis set forth in Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, and adopted by the California Supreme Court in People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955. Prior to Collins, a line of cases had included a "disadvantage" to a defendant as a component of the ex post facto analysis. (See, e.g., Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17; Kring v. Missouri (1883) 107 U.S. 221, 228-229, 2 S.Ct. 443, 449-450, 27 L.Ed. 506; Thompson v. Utah (1898) 170 U.S. 343, 352-353, 18 S.Ct. 620, 623-624, 42 L.Ed. 1061.) Collins refocussed the analysis on defendant's punishment. "Under Collins, ... the ex post facto clause prohibits not just a burden but a more The court in Gibson found the procedure outlined in the MDO law "constitute[d] part of appellant's punishment for his criminal offense." (People v. Gibson, supra, 204 Cal.App.3d at p. 1432, 252 Cal.Rptr. 56.) To the extent that Gibson relied on pre-Collins authority, its analysis may be flawed. (See, e.g., People v. Gibson, supra, 204 Cal.App.3d at p. 1431, 252 Cal.Rptr. 56 [a statute violates ex post facto if it "substantially disadvantage[s]" the offender affected by it].) In any event, the commitment procedure before us does not, as in Gibson, constitute part of petitioner's punishment. An SVP commitment does not extend or increase the penalty for a person's crime. Indeed here the petitioner, at the time of the proceeding under the new SVP law, was completing a sentence for false imprisonment, which is not one of the enumerated crimes in section 6600, subdivision (b). Thus in petitioner's case the SVP law could not operate to increase the punishment for his underlying crime. And in any case an SVP commitment is based not on a particular criminal conviction but rather on a proven history of prior violent sexual acts which serves as evidence of a present propensity to engage in such acts.
Other cases relied upon by petitioner are also distinguishable along these lines. For example, in In re Valenzuela (1969) 275 Cal.App.2d 483, 79 Cal.Rptr. 760, the statute in question provided for extensions of the confinement of Youth Authority wards, either at the Youth Authority facility or by transfer to a state prison. Given maximum effect, the statute could result in lifetime incarceration stemming from an original offense. In concluding this law violated ex post facto prohibitions, the court applied the pre-Collins test, finding that the statute operated to increase the punishment or "otherwise change [ ] it to the disadvantage of the defendant." (Id. at p. 486, 79 Cal.Rptr. 760.) The court also stressed that virtually no procedural protections were provided to the ward. The court opined that a body of law which would provide for treatment and restraint for sex offenders such as Valenzuela under a civil commitment process with appropriate procedural safeguards would be constitutionally permissible. (Id. at p. 488, 79 Cal.Rptr. 760.) Valenzuela thus predicted the SVP law and prospectively endorsed its constitutionality.
The second basis for the Gibson court's holding that the MDO statutes violated ex post facto provisions was that the law could result in long-term custody without proof that a person was presently dangerous as a result of mental illness. (People v. Gibson, supra, 204 Cal.App.3d at p. 1435, 252 Cal.Rptr. 56.) In this respect the SVP law is also different. An SVP commitment proceeding requires that a finder of fact conclude, based upon proof beyond a reasonable doubt, not only that the person is suffering from a diagnosed mental disorder but also that the person presently represents a danger to the health and safety of others. (§ 6600, subd. (a).)
Following Gibson and in response to it, the MDO law was amended to provide for a dangerousness requirement. (Stats.1989, ch. 228; Pen.Code, § 2962; People v. Collins (1992) 10 Cal.App.4th 690, 694, 12 Cal.Rptr.2d 768.)
We conclude that Gibson and other pre-Collins authorities relied upon by petitioner are distinguishable. In particular the SVP Act is not characterized by the "overwhelming penal attributes" found by Gibson to define the original MDO law. (People v. Gibson, supra, 204 Cal.App.3d at p. 1432, 252 Cal.Rptr. 56.)
United States v. Halper--The "No Deterrent Purpose" Formula
Petitioner argues that the rule articulated by the Supreme Court in United States v. Halper (1989) 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487, controls here, namely that a statute is penal if it includes We do not agree with this application of Halper, for several reasons.
In Halper the court was concerned with a double jeopardy claim involving a sizable fine imposed in a civil proceeding after the defendant had been convicted criminally for Medicare fraud. The court explained that double jeopardy protection was "intrinsically personal" and was not suited to the abstract analysis employed in other contexts to identify the inherent nature of a proceeding. (United States v. Halper, supra, 490 U.S. at p. 447, 109 S.Ct. at p. 1901.)
Moreover, the actual holding in Halper raises some doubt about the meaning of the sentence relied on above by petitioner. The holding of the court was that "under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." (United States v. Halper, supra, 490 U.S. at pp. 448-449, 109 S.Ct. at p. 1902, emphasis added.) From this statement it appears that any deterrent purpose would not invalidate an act so long as it could fairly be characterized as remedial. Other courts have adopted this interpretation. (State v. Carpenter, supra, 541 N.W.2d at p. 110, fn. 6, and p. 113; see also Pro-Family Advocates v. Gomez, supra, 46 Cal.App.4th at p. 1684, 54 Cal.Rptr.2d 600 [where a statute has a legitimate nonpunitive purpose, it is not considered punitive even though it produces a disadvantageous effect on the prisoner and even though one of its purposes may be penal]; U.S. v. Ursery (1996) --- U.S. ----, ---- - ----, fn. 2, 116 S.Ct. 2135, 2145-2146, fn. 2, 135 L.Ed.2d 549.)
Further, we believe petitioner may have misconstrued the "deterrent" effect of a statute as that term is understood in the law. Certainly confining petitioner for treatment will have a deterrent effect upon him personally, as he will be unable to commit sexually violent crimes upon women in the community. A deterrent measure, however, is one which serves as a threat of negative repercussions to discourage other people from engaging in certain behavior. (See, e.g., Artway v. Attorney General of State of N.J. (1996) 81 F.3d 1235, 1255.)
Finally we note that in recent years the high court has backed away from any rigid formula for determining whether a statute constitutes punishment, adopting a more flexible approach. In Montana Department of Revenue v. Kurth Ranch (1994) 511 U.S. 767, 779, 114 S.Ct. 1937, 1946, 128 L.Ed.2d 767, the court noted that even an "obvious deterrent purpose" does not automatically mark a sanction as a form of punishment. In California Department of Corrections v. Morales (1995) 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588, the court rejected an ex post facto challenge to a California statute which decreased certain prisoners' entitlements to parole eligibility hearings. Although the decrease in frequency of parole eligibility hearings was based in part on the nature of the prisoner's underlying offenses, the court found that the possibility of the statute increasing the punishment attached to defendant's crime was too attenuated and speculative to amount to an ex post facto violation. (Id. at p. ----, 115 S.Ct. at p. 1603.) The court was thus willing to determine the ex post facto effect on defendant's punishment based on "a matter of 'degree'." (Ibid.)
We conclude that the rules expressed in Halper do not apply to invalidate the SVP law. Where a statute's alleged punitive effect on an individual is not intended as such but is an inevitable consequence of a law that has primarily a legitimate regulatory purpose, it is not punishment. (DeVeau v. Effective Treatment
Petitioner next argues that treatment of SVPs under the statute is plainly of secondary importance to the primary purpose of extending their confinement. Under section 6606, subdivision (b), the SVP need not be amenable to treatment and need not willingly participate in the program. Moreover, the treatment need not "be successful or potentially successful." (Ibid.) Petitioner contends the Legislature acknowledged that treatment of sex offenders was ineffective when it repealed the former Mentally Disordered Sex Offender (MDSO) law. (Former § 6300 et seq.) That law, effective in 1982, had provided for treatment of MDSOs in lieu of imprisonment. The fact that treatment is not expected to be successful, petitioner argues, is strong proof that the SVP law has a punitive rather than a therapeutic purpose. Furthermore, if the state were interested in treating the SVP, it would not postpone the necessary treatment until after the person had served a prison term.
We are not persuaded by these arguments. Nothing in the SVP law precludes treatment of mentally disordered offenders during their prison terms. Indeed treatment is constitutionally required for prisoners who are suffering from serious mental disorders. (Doty v. County of Lassen (9th Cir.1994) 37 F.3d 540, 546.) The SVP law simply applies to those violent sex offenders who, at the time of their release, still have a diagnosed mental disorder which renders them a danger to others. (§ 6600, subd. (a).) As the Wisconsin Supreme Court noted in State v. Post (1995) 197 Wis.2d 279, 541 N.W.2d 115, 125, "It is only those for whom previous treatment has proved ineffective, as demonstrated by their current diagnosis of a mental disorder that predisposes them to commit violent acts, that the ... commitment will be appropriate."
In fact the record in this case reflects that petitioner was receiving some form of psychotherapy treatment during the course of his incarceration.
The fact that the person need not be amenable to treatment is of no consequence to the constitutional analysis. There is no constitutional requirement that commitment be based on amenability to treatment. (State v. Post, supra, 541 N.W.2d at p. 124; Bailey v. Gardebring (8th Cir.1991) 940 F.2d 1150, 1155; People v. Superior Court (Cain) (1996) 49 Cal.App.4th 1164, 1174, 57 Cal.Rptr.2d 296.)
The repeal of the former MDSO law by no means evidenced a collective opinion of the Legislature that treatment of mentally disordered sex offenders was ineffective. Rather the Legislature recognized that "the commission of sex offenses is not in itself the product of mental diseases." (Stats.1981, ch. 928, § 4.) Nor do we believe the SVP statutory scheme indicates indifference to the treatment aspects of the commitment. It provides that persons subject to commitment "shall be treated, not as criminals, but as sick persons." (§ 6250.) It mandates that the SVP be provided treatment for his or her diagnosed mental disorder "consistent with current institutional standards for treatment of sex offenders...." (§ 6606, subds. (a), (c).) A structured "treatment protocol" is to be developed by the Department of Mental Health, describing the number and type of treatment components provided and specifying how assessment data will be used to determine the course of treatment for each individual offender. The protocol must further specify measures which will be used to assess the individual's progress and changes, particularly with respect to the risk of reoffending. (§ 6606, subd. (c).)
Thus the SVP law guarantees that a person will not be committed without an "individualized treatment plan," similar to that required in other commitment proceedings. (See, e.g., § 5352.6 of the Lanterman-Petris-Short Act.) The fact that the statute acknowledges that treatment may not be successful reflects a realistic outlook and does not mean, as petitioner maintains, that the Legislature Recent Case Law
Our conclusion regarding petitioner's ex post facto challenge to the SVP law is supported by recent decisions both in this state and from courts analyzing similar statutes in other states. In People v. Superior Court (Cain), supra, 49 Cal.App.4th 1164, 57 Cal.Rptr.2d 296, (hereafter Cain ) the superior court dismissed several SVP petitions on the basis that the law violated ex post facto prohibitions, apparently accepting the argument that because an SVP need not be amenable to treatment, his continued confinement could not be for curative purposes and therefore must be punitive. The First Appellate District (Div.Five) rejected this reasoning and reversed the superior court's order. The Court of Appeal held that a lack of amenability to treatment does not render a mental health commitment unconstitutional. "If amenability to treatment is required for custody under a mental health civil commitment," the court wrote, "the curable may be confined but the incurable--perhaps the most dangerous--must ... be released. This is untenable and inconsistent with existing law." (Cain, supra, 49 Cal.App.4th at p. 1174, 57 Cal.Rptr.2d 296.)
The court in Cain distinguished Gibson, as we have done, finding that the MDO law at the time Gibson was written had "considerably more penal features" than the SVP law. (Cain, supra, 49 Cal.App.4th at p. 1174, 57 Cal.Rptr.2d 296.) The court concluded that the SVP law is not penal because it imposes a civil commitment for treatment of a diagnosed mental disorder. Nor is it retroactive. Although drawing in part on past convictions for sexually violent crimes as evidence of dangerous propensities, the law specifically provides that the jury may not find a person to be an SVP based only on prior offenses without relevant evidence of a currently diagnosed mental disorder making the person a danger to others.
Shortly after Cain was filed, the Second Appellate District filed its opinion in Garcetti v. Superior Court (1996) 49 Cal.App.4th 1533, 57 Cal.Rptr.2d 420 (hereafter Garcetti ). In Rasmuson, like Cain, the Court of Appeal reversed trial court orders sustaining demurrers to various SVP petitions on ex post facto grounds. The court emphasized the fact that a person challenging a legislative enactment on its face must meet a heavy burden and " 'demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.' " (Rasmuson, supra, 49 Cal.App.4th at p. 1544, 57 Cal.Rptr.2d 420, quoting Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at pp. 180-181, 172 Cal.Rptr. 487, 624 P.2d 1215.) It is not sufficient to suggest that in some future set of circumstances the law might be capable of an unconstitutional application. (Ibid.; United States v. Salerno (1987) 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697.)
The court also stressed that the pre-Collins ex post facto analysis, which had referred to a "disadvantage" to defendant or a "more burdensome consequence" to defendant is now defunct. (Rasmuson, supra, 49 Cal.App.4th at p. 1549, 57 Cal.Rptr.2d 420.) The narrow issue post-Collins is whether the act in question prescribes "added punishment for past crime." (Id. at p. 1550, 57 Cal.Rptr.2d 420.) The court found the SVP Act did not. The court distinguished Gibson not only because it was a pre-Collins case but because it did not apply the correct standard for determining facial invalidity of a statute.
Furthermore, the Rasmuson court disagreed with Gibson to the extent Gibson had found that a statute with the primary purpose of protecting the public is penal. "If Gibson 's proposition ... is that there is no legitimate purpose in protecting the public from violent sexual attacks apart from punishing an offender, that proposition is simply wrong." (Rasmuson, supra, 49 Cal.App.4th at p. 1552, 57 Cal.Rptr.2d 420.) Providing for the public's safety, the court continued, is a fundamental governmental objective; indeed it is a "core function of government." (Id. at p. 1553, 57 Cal.Rptr.2d 420.) It is well established that the state has the authority, both under its police power and in its role as parens patriae, to protect the community from potential danger by isolating, treating
Several states have addressed sexual predator statutes similar to California's SVP Act. In a recent opinion of the Washington State Supreme Court (In re Young (1993) 122 Wash.2d 1, 857 P.2d 989), the court rejected an ex post facto challenge to that state's sexually violent predator statute, finding that the commitment process described by the statute was not a penal sanction. The court in In re Young drew similarities between the Washington statute and an Illinois law, the Sexually Dangerous Persons Act, which the United States Supreme Court considered in Allen v. Illinois, supra, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296. The Illinois statute provided for civil commitment of sexually dangerous persons, defined as those who suffered from "a mental disorder ... coupled with criminal propensities to the commission of sex offenses." (Id. at p. 366, fn. 1, 106 S.Ct. at 2990 fn. 1.) A majority of the Supreme Court found that, for Fifth Amendment purposes, the commitment of sexually dangerous persons was a civil proceeding. The court based its conclusion on several factors: the state Legislature indicated clearly that it intended the commitment proceeding to be civil; the state had a statutory obligation to provide care and treatment designed to effect recovery for those committed; detainees were discharged when no longer found to be dangerous; and conditional release was available. All of these factors, with the exception of the last one, were present in the Washington statute. All are present without exception in the SVP statute before us.
In a federal habeas corpus proceeding, a district court in Young v. Weston (1995) 898 F.Supp. 744 found the statute violated both the substantive due process and ex post facto provisions of the constitution. That opinion is of course not binding on this court. (See Matter of Paschke (Div. 3, 1996) 80 Wash.App. 439, 909 P.2d 1328, 1333, fn. 5.) Moreover, as the opinion in Cain points out, the federal court followed the discredited pre-Collins analysis and is "out of synch" with decisions of other states which have generally upheld sexual predator laws. (Cain, supra, 49 Cal.App.4th at p. 1173, fn. 9, 57 Cal.Rptr.2d 296.) Young v. Weston is now pending before the 9th Circuit Court of Appeals.
In In re Young, as in our case, the petitioner sought to distinguish Allen on the basis that the Illinois statute provided for treatment of sex offenders in lieu of criminal punishment. The Washington court was not persuaded by this argument: "That the State of Illinois chose to forego criminal liability for the offender's initial actions does not require Washington to do so." (In re Young, supra, 857 P.2d at p. 997.) "[T]he goals of civil and criminal confinement are quite different," the court continued. "[T]he former is concerned with incapacitation and treatment, while the latter is directed to retribution and deterrence. The sexually violent predator Statute is not concerned with the criminal culpability of petitioners' past actions. Instead, it is focused on treating petitioners for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality." (Ibid.)
We agree with the Washington court on this point. The fact that the statute analyzed in Allen v. Illinois provided for commitment instead of incarceration does not mean that other commitment procedures, including those which take effect after a defendant has served a criminal sentence, constitute punishment. (See also, State v. Carpenter, supra, 541 N.W.2d at p. 112.) As the cases illustrate, numerous factors will bear on the determination whether a statute is civil or criminal. No one characteristic is controlling.
Two further points of comparison with Allen v. Illinois bear mention. First, the statute in Allen v. Illinois provided for review of the commitment every six months, whereas the SVP statute requires annual review. We do not believe this difference in time is significant, as petitioner has argued. We note that the SVP can petition for conditional
The Wisconsin State Supreme Court has recently issued two opinions upholding its Sexually Violent Person Commitments statute, which is virtually identical to California's SVP law. (State v. Carpenter, supra, 541 N.W.2d 105; State v. Post, supra, 541 N.W.2d 115.) The principal purposes of the statute, the court found, are protection of the public and treatment of the sex offender. These are significant nonpunitive and remedial purposes. (State v. Carpenter, at p. 112.) Like the SVP law, the Wisconsin statute involves an affirmative restraint and requires a prior conviction as a predicate for the current commitment. These attributes, however, do not transform the commitment into punishment for a past offense. (Id. at p. 113.) As with the SVP law, "[t]he focus of the statute is on the offender's current mental condition and the present danger to the public, not punishment." (Ibid.) Since the law is not a penal law, it does not violate ex post facto prohibitions.
Conclusion
Courts engaging in an ex post facto analysis frequently refer to the factors set forth by the Supreme Court many years ago as guidelines in determining if a statutory scheme is criminal in nature: "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a 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." (Kennedy v. Mendoza-Martinez, supra, 372 U.S. at pp. 168-169, 83 S.Ct. at pp. 567-568, fns. omitted.)
We conclude that these factors on balance support a finding that the SVP law is not a penal statute. Although it involves an affirmative restraint, its goals are incapacitation and treatment rather than retribution and deterrence. No finding of scienter is required since a determination that a person is an SVP is based on a mental disorder rather than on culpability. The statute serves the legitimate and compelling purposes of protecting the public from the danger posed by violent sex offenders and treating persons with uncontrollable mental disorders. And the commitment is not excessive in relation to this purpose, considering the safeguards provided and the procedures set forth for obtaining conditional release and/or discharge.
In sum we find that petitioner has failed to provide " 'the clearest proof' " that the SVP Act is so punitive either in purpose or effect as to negate the Legislature's stated intent to provide a civil procedure for committing and treating those persons representing a danger to society because of mental disorders. (United States v. Ward, supra, 448 U.S. at p. 249, 100 S.Ct. at pp. 2641-2642.) Consequently, II. Double Jeopardy--The "Second Sanction"
The double jeopardy clause protects against multiple punishments for the same offense. (United States v. Halper, supra, 490 U.S. at p. 440, 109 S.Ct. at p. 1897.) If the law does not constitute "punishment" for a criminal offense, there can be no double jeopardy violation.
As petitioner points out, even an ostensibly civil penalty, such as a fine or a tax, can constitute punishment for the purpose of a double jeopardy analysis. As noted in the preceding section, the Supreme Court in United States v. Halper, supra, found that a fine of $130,000, following a criminal conviction and sentence for Medicare fraud, violated double jeopardy protections. In Montana Department of Revenue v. Kurth Ranch, supra, 511 U.S. 767, 114 S.Ct. 1937, the court struck down on double jeopardy grounds a Drug Tax Act under which a $900,000 fine was imposed on confiscated marijuana in a proceeding separate from the criminal prosecution of defendants for possession of the marijuana. Under these cases a violation of the double jeopardy clause occurs when a defendant who has already been punished in a criminal proceeding is subjected to an additional sanction for the same offense "to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." (United States v. Halper, supra, 490 U.S. at p. 449, 109 S.Ct. at p. 1902.)
Petitioner argues that various factors discussed in Kurth Ranch apply here and lead to the conclusion that double jeopardy prohibitions are violated by the SVP law. In Kurth Ranch the court found that the tax in question, in addition to having an "obvious deterrent purpose," had other punitive features "unusual" for a tax: namely, it was conditioned on the commission of a crime and was exacted only after the taxpayer had been arrested for the same conduct giving rise to the tax obligation. (Montana Department of Revenue v. Kurth Ranch, supra, 511 U.S. at pp. 779-781, 114 S.Ct. at pp. 1946-1947.)
Unlike Kurth Ranch, where the Legislature had intended the law as a deterrent to other marijuana farmers, the stated legislative intent behind the SVP law was to provide a means for treating people with mental disorders who posed a continuing danger to society. This is a legitimate and compelling remedial purpose. (See, e.g., Addington v. Texas, supra, 441 U.S. at p. 426, 99 S.Ct. at pp. 1809-1810.) Furthermore, while it is "unusual" for a tax to be assessed on the basis of criminal conduct, it is not unusual that a commitment proceeding is based on antecedent criminal conduct. Criminal proceedings establishing that a person has committed felonious acts of violence against others are strong grounds to believe that the person may represent a continuing danger to society. (See, e.g., Conservatorship of Hofferber (1980) 28 Cal.3d 161, 173, 167 Cal.Rptr. 854, 616 P.2d 836 ["acts serious enough for criminal treatment justify a continuing special interest in a person's nonpenal confinement for purposes of public safety."] ) Thus, although the state must prove prior sexually violent offenses as a predicate to an SVP finding, the antecedent criminal conduct does not provide the basis for a "second sanction" but is received to show the person's mental disability and to predict future behavior. (See, e.g., Allen v. Illinois, supra, 478 U.S. at p. 371, 106 S.Ct. at p. 2993.)
In a case more closely analogous than Kurth Ranch, the court in People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 284 Cal.Rptr. 601 held that extending the commitment of a person found not guilty by reason of insanity is not a double jeopardy violation. There the court observed that "[i]t would be singularly inappropriate to apply double jeopardy provisions to these types of proceedings where the issue to be determined is not whether respondent committed an act or offense, but whether respondent suffers from a mental condition which makes him dangerous to others." (Id. at pp. 486-487, 284 Cal.Rptr. 601; see also State v. Carpenter, supra, 541 N.W.2d at pp. 109-113; Other points raised by petitioner are answered by our analysis in the preceding section, determining that the SVP Act is not penal in nature. We conclude that the SVP law does not punish petitioner twice for the same crime and consequently does not violate double jeopardy provisions.
III. Equal Protection--"Proof of Dangerousness"
The United States and California Constitutions guarantee equal protection of the laws. (U.S. Const., 14th Amend; Cal. Const. art I, § 7.) Equal protection is violated if similarly situated groups are treated in an unequal manner. (City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 439, 105 S.Ct. 3249, 3253-3254, 87 L.Ed.2d 313; In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549.)
Petitioner claims that he is similarly situated to other parolees and prisoners who have completed their sentences and may be subject to involuntary confinement for mental health treatment under either the Mentally Disordered Offenders (MDO) Act (Pen.Code, § 2962) or the Lanterman-Petris-Short (LPS) Act (Pen.Code, § 2974; § 5300). He argues that, unlike the MDO or LPS proceeding, the SVP statute does not require that an individual represent "a substantial danger of physical harm to others" or a "demonstrated danger" in order to be committed for mental health treatment. (Pen.Code, § 2962, subd. (d)(1); § 5300.) Instead, he contends, the SVP statute allows for an involuntary commitment based only on a criminal record and a likelihood of reoffending.
Petitioner turns again to People v. Gibson, supra, 204 Cal.App.3d 1425, 252 Cal.Rptr. 56, where the court found that the MDO commitment scheme, as originally written, violated equal protection. Under the original MDO Act the state had only to prove that the prisoner's crime was one involving force or violence causing serious bodily injury and that the prisoner had a severe mental disorder which had contributed to the underlying crime and was not in remission.
The court in Gibson likened the law to that discussed in Baxstrom v. Herold (1966) 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620. In Baxstrom the Supreme Court invalidated a commitment procedure because it treated prisoners reaching the end of their sentences differently from others subject to commitment by denying a jury trial on the issue of mental illness and failing to require proof of dangerousness. Gibson concluded the MDO law similarly violated equal protection because it provided for commitment of prisoners at the end of their prison terms without requiring "proof of any present dangerousness as a result of mental illness." (People v. Gibson, supra, 204 Cal.App.3d at p. 1436, 252 Cal.Rptr. 56.)
As we noted in Section I., the MDO statute was amended in response to Gibson and now includes the requirement that "by reason of his or her severe mental disorder, the prisoner represents a substantial danger of physical harm to others." (Pen.Code, § 2962, subd. (d)(1).)
The SVP law does not suffer from the same constitutional infirmity as did the original MDO law, and the statute at issue in Baxstrom, because the SVP statute requires a finding that the person is "a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) Petitioner claims that proof that an individual is "likely" to commit sexually violent criminal behavior does not equate to proof of present dangerousness. We are not persuaded. The difference between the language describing the present danger in the SVP Act and the "demonstrated" danger (§ 5300) or "substantial danger" (Pen.Code, § 2962, subd. (d)(1)) required in other statutes is not substantive. (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 176, 167 Cal.Rptr. 854, 616 P.2d 836.) In our view, these differences do not amount to meaningful distinctions for purposes of equal protection of the laws.
Conservatorship of Hofferber, supra, relied on by petitioner, does not support a contrary conclusion. In that case the court noted that several different definitions of danger appear in California statutes. (§ 1800 [extended commitment of Youth Authority inmate The court in Hofferber agreed that an involuntary commitment must be supported by a finding of present dangerousness. But in determining what "degree of 'dangerousness' " should apply, the court found that the distinctions among the various definitions were "more form than substance." (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 176, 167 Cal.Rptr. 854, 616 P.2d 836.) A "conclusive presumption of current dangerousness" based only on past violent felonious conduct would deny equal protection. (28 Cal.3d at p. 177, 167 Cal.Rptr. 854, 616 P.2d 836; Jones v. United States (1983) 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694.) However a finding that the person is presently a danger to others, based on the appropriate standard of proof, satisfies due process concerns.
The SVP law adequately meets this test by requiring proof of a current mental disorder making the person presently a danger to others. The statute not only sets forth a comprehensive screening and evaluation process, requiring professional assessment of various risk factors, including "criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) It also requires that the jurors be specifically admonished that they may not find a person to be an SVP based solely on evidence of past offenses, but that they must consider relevant evidence of a "currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) Again, we fail to see how this description of a present danger differs in any meaningful way from a finding that a person, as a result of a mental disorder "presents a demonstrated danger of inflicting substantial physical harm upon others." (§ 5300, subd. (a).) We find no violation of equal protection.
IV. Substantive Due Process
The California and United States Constitutions require that a person shall not be deprived of life, liberty, or property without due process of law. (U.S. Const. amends. 5, 14; Cal. Const., art. I, § 7.) Freedom from personal restraint is a fundamental liberty interest. (United States v. Salerno, supra, 481 U.S. at p. 750, 107 S.Ct. at p. 2103.) If a state law infringes upon personal liberty, it is constitutional only if it furthers compelling state interests and is narrowly drawn to serve those interests. (Reno v. Flores (1993) 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1.) The state has a compelling interest both in treating mentally disordered sexual offenders and in protecting society from their dangerous tendencies. (Addington v. Texas, supra, 441 U.S. at p. 426, 99 S.Ct. at pp. 1809-1810.) The question posed by the due process challenge is therefore whether the SVP statute is narrowly tailored to serve those interests.
Petitioner argues that the SVP law on its face violates due process guarantees because it allows for an indefinite restraint on liberty without the requisite degree of proof that a person is both mentally ill and presently dangerous and without providing adequate and effective treatment.
Foucha v. Louisiana--"Mentally Ill and Dangerous"
In Foucha v. Louisiana (1992) 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437, the Supreme Court held that a Louisiana statute violated due process because it allowed an individual to be held in a psychiatric facility without a finding that he was both mentally ill and dangerous. Petitioner argues that the Petitioner misconstrues the holding in Foucha. Moreover, the statute at issue in Foucha, as well as the facts of that case, distinguish it from the case before us. In Foucha the statute provided that a person who had been acquitted by reason of insanity and committed to a psychiatric hospital could petition for release. A court hearing would be held but the statute placed the burden on the committed person to prove he was no longer dangerous. If the court found he failed to carry this burden, he could be returned to the mental institution "whether or not he [was] then mentally ill." (Foucha v. Louisiana, supra, 504 U.S. at p. 73, 112 S.Ct. at p. 1782.)
In Foucha's case, release was recommended four years after he had been committed, based upon a report by the review panel that there had been no evidence of any mental illness since his admission, when he had been suffering from a temporary drug-induced psychosis. The court heard testimony that Foucha had an "antisocial personality," a condition which was "not a mental disease," but which had apparently led to several altercations during his confinement. (Foucha v. Louisiana, supra, 504 U.S. at p. 75, 112 S.Ct. at p. 1782.) The state did not contend that Foucha was mentally ill and indeed the statute did not require any such finding. The doctor who testified would not certify that Foucha would not be a danger to himself or to others if released, but there was no positive evidence of his dangerousness. The trial court found Foucha had not carried the burden of proving he was not dangerous and he was returned to the mental institution.
The statute in our case clearly does not suffer from the constitutional defects found in Foucha. The SVP law provides that the state bear the highest burden of proving that the person has a mental disorder making him or her a danger to others. (§ 6600, subd. (a).) It requires that an SVP finding be based not only on evidence of prior violent offenses but also on evidence showing a "currently diagnosed mental disorder." (Ibid.)
Petitioner extracts dicta by the court in Foucha, which observed that the state may not indefinitely hold a person who simply has "a personality disorder that may lead to criminal conduct." (Foucha v. Louisiana, supra, 504 U.S. at p. 82, 112 S.Ct. at p. 1787.) He contends that the SVP law does just that. A "mental disorder," he argues, is similar to the "personality disorder" found to be constitutionally inadequate in Foucha. These arguments derive in part from an incorrect reading of Foucha. Foucha does not hold that an involuntary commitment may not be supported by a properly proven finding of "mental disorder." The statute in Foucha provided for no particular proof by the state regarding the mental condition component to support an involuntary commitment. At the hearing, the only evidence was that Foucha was "in 'good shape' mentally" (id. at p. 75, 112 S.Ct. at p. 1782) but that he had an "an antisocial personality that sometimes leads to aggressive conduct." (Id. at p. 82, 112 S.Ct. at p. 1787.) Thus even if the statute had been constitutional on its face, the evidence was that Foucha was neither mentally ill nor mentally disordered.
Furthermore, petitioner's argument that a "mental disorder" is somehow not a constitutionally sufficient "mental illness" is not supported by the authorities. The Supreme Court has declined to enunciate a single definition to describe the mental condition sufficient for involuntary mental commitment. The court has used the terms "mental illness," and "mental disorder" interchangeably. (See, e.g., Addington v. Texas, supra, 441 U.S. at pp. 425-426, 99 S.Ct. at pp. 1808-1810; United States v. Salerno, supra, 481 U.S. at pp. 748-749, 107 S.Ct. at pp. 2102-2103.) The court has also at times used the terms "mental disease," "emotional disorder," "emotionally disturbed," and "mentally unstable" in describing the mental illness component of the standard of proof for civil commitments. (Ibid.) In addition California The Illinois statute upheld in Allen v. Illinois and the Wisconsin statute upheld in State v. Post, supra, 541 N.W.2d 115, both used the term "mental disorder." The Wisconsin Supreme Court noted that " 'mental illness' is not required by either the federal or state constitution" and specifically held that "the term 'mental disorder' ... satisfies the mental condition component required by substantive due process for involuntary mental commitment." (Id. at pp. 122-123.)
The high court has recently granted certiorari (June 17, 1996) in Matter of Care and Treatment of Hendricks (1996) 259 Kan. 246, 912 P.2d 129, a case in which the Kansas Supreme Court invalidated the Kansas Sexually Violent Predator Act on due process grounds. The state court found that the Act's requirement of a "mental abnormality" or "personality disorder" did not satisfy the standards of Foucha v. Louisiana.
The term "mental disorder" is not an amorphous concept, as petitioner suggests. Diagnoses of "mental disorders" are made pursuant to the diagnostic nomenclature and established criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (the DSM IV). In short, "[t]he term 'mental disorder' has a demonstrably established technical meaning." (People v. Martin (1980) 107 Cal.App.3d 714, 724, 165 Cal.Rptr. 773.)
Petitioner contends nonetheless that "mental disorder" as defined by the SVP law is impermissibly broad because it could describe recidivist tendencies which do not fall within traditional definitions of "mental illness." (People v. Wilder (1995) 33 Cal.App.4th 90, 101, 39 Cal.Rptr.2d 247.) People v. Wilder does not support such a proposition. In Wilder, appellant argued that the terms "mental disease, defect, or disorder" found in Penal Code section 1026.5 were unconstitutionally vague because they could include mental conditions of recidivists and sociopaths who simply had antisocial personalities and were not mentally ill. The court rejected this argument, both on the ground that the terms were not impermissibly vague and on the basis of the evidence at trial.
Within the context of the statute in Wilder, the terms mental disease, defect or disorder referred to conditions of mental illness, not simply to characteristics of recidivists. The statute in Wilder, as in our case, required the state to prove beyond a reasonable doubt that the person presented a danger of harm to others by reason of his or her mental condition. In essence this foreclosed the possibility that a commitment could be premised only upon an antisocial personality or a tendency towards recidivism. The fact that the terms of the statute could also include those with antisocial personality traits did not render the statutory terms impermissibly vague. (People v. Wilder, supra, 33 Cal.App.4th at p. 102, 39 Cal.Rptr.2d 247.) Moreover, in Wilder's case the evidence clearly demonstrated that, in addition to having an antisocial personality, he also suffered from mental illness causing him to be dangerous.
In a facial challenge to a statute, as is before us, petitioner cannot prevail by suggesting that "in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute...." (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145; United States v. Salerno, supra, 481 U.S. at p. 745, 107 S.Ct. at p. 2100.) On its face the SVP law does not differ from other civil commitments in its requirement of a finding of "mental disorder." We find it is sufficiently narrowly drawn in this respect to meet the constitutional challenge.
Petitioner next challenges the dangerousness component of the statute on due process grounds, arguing that the definition of an SVP allows the state to derive a diagnosis of mental disorder and a finding of dangerousness from past conduct alone. Thus, he claims, a person can be found to be a sexually violent predator based on a pattern of prior sexual crimes and absent any present A finding that a person represents a danger to society is necessarily predictive and may therefore be based on propensities. There is nothing impermissible about using past conduct as relevant evidence in evaluating probable future behavior. This is "a constitutionally valid evidentiary consideration." (People v. Superior Court (Dodson) (1983) 148 Cal.App.3d 990, 998, 196 Cal.Rptr. 431; People v. Martin, supra, 107 Cal.App.3d 714, 165 Cal.Rptr. 773; Barefoot v. Estelle (1983) 463 U.S. 880, 897, 103 S.Ct. 3383, 3396-3397, 77 L.Ed.2d 1090; see also, Heller v. Doe by Doe (1993) 509 U.S. 312, 322-324, 113 S.Ct. 2637, 2644, 125 L.Ed.2d 257 ["Previous instances of violent behavior are an important indicator of future violent tendencies."] )
A standard of certain or immediate danger, such as petitioner appears to suggest is necessary, has not been accepted by the courts. In People v. Superior Court (Dodson), supra, 148 Cal.App.3d 990, 196 Cal.Rptr. 431, the court upheld the long term commitment of mentally ill persons who presented a "demonstrated danger of substantial physical harm" to others under section 5300. The argument was made in Dodson that this standard violated due process because it allowed involuntary confinement based on past conduct and without a showing of "imminent danger" The court disagreed on both counts. Reviewing United States Supreme Court cases, the court concluded that the constitutional standard requires two elements: present illness and potential danger. (Id. at p. 998, 196 Cal.Rptr. 431.) Furthermore, the Constitution does not dictate what particular words or phrases are necessary to describe these elements: so long as the statute "requires that the individual be suffering from a current mental disorder which constitutes a present danger," it is constitutionally adequate. (Id. at p. 999, 196 Cal.Rptr. 431.)
The court in Dodson acknowledged that there may not be certainty in the finding that someone represents a danger to others because of mental illness. "One of the principal difficulties that courts and legislatures alike confront in attempting to define and measure the danger which must exist before a mentally ill person can be involuntarily committed is 'the lack of certainty and the fallibility of psychiatric diagnosis....' [Citations.] The fact that psychiatric predictions are imprecise does not, however, prevent society from protecting itself from those who are dangerously mentally ill. [Citation.]" (People v. Superior Court (Dodson), supra, 148 Cal.App.3d at pp. 998-999, 196 Cal.Rptr. 431.)
The SVP statute satisfies both prongs of the standard found in Dodson to be constitutionally adequate. While it calls for evidence of past conduct "as a prognosticator of probable future behavior," it requires both a present diagnosis of a mental disorder and a potential danger of harm to others. (People v. Superior Court (Dodson), supra, 148 Cal.App.3d at p. 998, 196 Cal.Rptr. 431.)
Burden of Proof
Petitioner argues that even though the state must prove beyond a reasonable doubt that a person is an SVP, that burden is undermined in the statute because the fact finder need only find it "likely" that the person will engage in sexually violent criminal behavior. He contends an indefinite commitment based only on a "mere likelihood" that a person will commit crimes at some time in the future is not sufficiently narrowly drawn to protect due process rights.
In People v. Martin, supra, 107 Cal.App.3d 714, 165 Cal.Rptr. 773, the appellant made a similar claim regarding the former Mentally Disordered Sex Offender statutes. A "prediction" that a person may in the future engage in conduct dangerous to others, it was argued, "is not sufficiently reliable to justify a deprivation of liberty." (Id. at pp. 724-725, 165 Cal.Rptr. 773.) The court rejected this claim: "We recognize that liberty is a fundamental interest, and that, under the present state of the art, experts cannot predict with certainty whether persons will engage in dangerous conduct. Yet, we also recognize that persons subject to recommitment hearings ... have previously committed We believe the statute before us similarly guarantees that only those with an extremely high risk of reoffending are found to be SVPs. It calls for proof of a current mental disorder predisposing a person to the commission of violent sexual acts to the extent that the person constitutes a danger to others. (§ 6600, subd. (a).) It requires a proven history of sexually motivated violence, and mandates a screening process which carefully evaluates multiple known risk factors. (§ 6601, subd. (c).) It provides that a judge make a finding of probable cause that a person is likely to engage in sexually violent predatory criminal behavior. (§ 6602.) At trial the person is entitled to counsel, to retain experts or professional persons to testify in his behalf and to have access to all relevant medical and psychological records. (§ 6603, subd. (a).) And a unanimous jury must find beyond a reasonable doubt that the person has a currently diagnosed mental disorder making him a danger to the health and safety of others. (§§ 6603, subd. (d), 6604, 6600, subd. (a).)
"If [it is] feasible within the bounds set by their words and purpose, statutes should be construed to preserve their constitutionality." (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 175, 167 Cal.Rptr. 854, 616 P.2d 836.) Nothing on the face of the SVP statute supports petitioner's claim that it allows commitment based on anything less than the constitutionally permissible burden of proof. The statute is specifically tailored to assure that only those most likely to engage in violent sexually predatory behavior can be committed under its provisions.
Effective Treatment
Petitioner argues that language in the SVP statute providing that the person need not be amenable to treatment and that treatment need not be successful renders the confinement unconstitutional under People v. Feagley (1975) 14 Cal.3d 338, 121 Cal.Rptr. 509, 535 P.2d 373. In Feagley, the court observed that if the state confines a person on the basis of a mental illness or disorder it must provide " 'such individual treatment as will give [the person] a realistic opportunity to be cured or to improve his or her mental condition. [Citations.] Adequate and effective treatment is constitutionally required because, absent treatment, the hospital is transformed "into a penitentiary where one could be held indefinitely for no convicted offense." [Citation.]' " (Id. at p. 359, 121 Cal.Rptr. 509, 535 P.2d 373.)
The standard expressed in Feagley has not been universally accepted. Indeed in O'Connor v. Donaldson (1975) 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396, Chief Justice Burger, in a concurring opinion, expressed the view that "[g]iven the present state of medical knowledge regarding abnormal human behavior and its treatment, few things would be more fraught with peril than to irrevocably condition a State's power to protect the mentally ill upon the providing of 'such treatment as will give [them] a realistic opportunity to be cured.' " (Id. at pp. 588-589, 95 S.Ct. at p. 2500.)
Moreover, Feagley is inapposite for other reasons. It concerned a Mentally Disordered Sex Offender who had committed a nonviolent misdemeanor offense and was found to be unamenable to treatment. He was committed to a prison unit regulated by the Director of Corrections, where he was part of the general prison population. He did not receive the treatment given at state hospitals and "no therapy [was] available." In contrast, the SVP statute mandates treatment for the committed person whether or not the person is amenable to treatment. (§ 6606, subds. (a), (b).) An SVP "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...." (§ 6604.) We are aware of no authority requiring that a finding of amenability to treatment is a criterion for a constitutionally valid commitment. (See, e.g., State v. Post, supra, 541 N.W.2d at pp. 124-125 ["treatability" is not a constitutional prerequisite to commitment].) If this were so, it have the absurd result of conditioning commitment and continued confinement on the person's willingness or refusal to participate in treatment. (See, e.g., In re Blodgett (Minn.1994) 510 N.W.2d 910, 916; Cain, supra, 49 Cal.App.4th at p. 1174, 57 Cal.Rptr.2d 296.) The state's interest in protecting its citizens from violent predators is no less legitimate and compelling when treatment is problematic. "So long as civil commitment is programmed to provide treatment and periodic review, due process is provided." (510 N.W.2d at p. 916.)
Under the SVP law, the treatment provided by the Department of Mental Health must be "consistent with current institutional standards for the treatment of sex offenders ...." (§ 6606, subd. (c).) In some cases treatment will not be effective because no effective treatment has been developed. The state can hardly be expected to guarantee a cure when none is known. The fact that treatment may not be effective, however, does not render unconstitutional an involuntary confinement for protection of others. (Bailey v. Gardebring, supra, 940 F.2d at p. 1155.) Furthermore, in our view, mandating treatment which is consistent with current treatment modalities does give a person " 'a realistic opportunity' " to improve his or her mental condition. (People v. Feagley, supra, 14 Cal.3d at p. 359, 121 Cal.Rptr. 509, 535 P.2d 373.) Due process requires no more.
CONCLUSION
It is petitioner's burden to show that the SVP law is unconstitutional. (People v. Jackson, supra, 28 Cal.3d at p. 317, 168 Cal.Rptr. 603, 618 P.2d 149.) "Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable." (Varanelli v. Structural Pest Control Board (1969) 1 Cal.App.3d 217, 220, 81 Cal.Rptr. 492; Amwest Surety Ins. Co. v. Wilson, supra, 11 Cal.4th at p. 1252, 48 Cal.Rptr.2d 12, 906 P.2d 1112.) Moreover, where the Legislature has stated that its intent was to establish a civil proceeding for purposes of treating persons presenting a danger to society, petitioner must demonstrate a punitive purpose by the " 'clearest proof'." (United States v. Ward, supra, 448 U.S. at p. 249, 100 S.Ct. at p. 2641.) We conclude petitioner has not met these burdens here. The overriding purposes of the SVP statute are remedial and protective. Furthermore, the statute meets the constitutional standards necessary to support an involuntary commitment, by requiring a finding of both mental illness and present danger. (People v. Superior Court (Dodson), supra, 148 Cal.App.3d at p. 998, 196 Cal.Rptr. 431; Foucha v. Louisiana, supra, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437.) We find no constitutional impediment to the state's exercise of its legitimate authority to treat mentally disordered criminals while protecting its citizens from predatory acts of violence.
DISPOSITION
We deny the petition for a writ of prohibition. Our temporary stay, dated May 3, 1996, is hereby dissolved, effective upon the finality of this opinion.
COTTLE, P.J., and MIHARA, J., concur.