Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050508028.
STEIN, Acting P. J.
Robert Berl Bates appeals an order committing him to the Department of Mental Health (DMH) as a sexually violent predator for an indeterminate term. He contends that amendments to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) that became effective in 2006, after the petition was filed, but before the trial, cannot be applied to him because they retroactively change the legal consequences of his predicate criminal acts and mental condition. He further contends that many of the changes to the SVPA made by the 2006 amendments violate his state and federal due process rights, the prohibition of ex post facto laws, equal protection, and the prohibition against cruel and unusual punishment. Defendant finally contends that new restrictions imposed on his right to petition for release violate the federal First Amendment right to petition.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We shall hold that application of the amended version of the SVPA to a commitment petition filed, but not tried, before the effective date of the amendments is not an impermissible retroactive application of the law, and that the amended version of the SVPA does not violate any of the aforementioned constitutional provisions. We shall affirm the judgment.
Facts
On June 3, 2005 the District Attorney of Contra Costa County filed a petition to commit defendant as a sexually violent predator (SVP) upon his release from prison. For reasons not relevant here, trial was delayed. On September 25, 2006, the district attorney filed a motion to amend the petition to notify defendant that due to recently enacted amendments to the SVPA, if the jury found the petition true, he would be subject to an indeterminate term rather than a two-year commitment. Over defendant’s objection, the court granted the motion.
On October 20, 2006, the jury found defendant to be a sexually violent predator, and the court ordered defendant committed to the Director of Mental Health for the State of California for an indeterminate term. Defendant filed a timely notice of appeal.
Analysis
I.
Summary of the 2006 Amendments to the SVPA
At the time the petition in this case was filed, the SVPA provided that a person found to be an SVP would be committed for two years. The People were required to file a new petition for commitment every two years, and to prove beyond a reasonable doubt that the defendant was an SVP. (Former §§ 6601, subd. (i); 6604; 6604.1.)
On September 20, 2006, prior to defendant’s trial, the Governor signed Senate Bill No. 1128, which went into effect immediately as emergency legislation (Stats. 2006, ch. 337, § 62, p. 83). Among other things, Senate Bill No. 1128 amended the SVPA to provide for an indeterminate commitment term for persons determined to be SVP’s. (Stats. 2006, ch. 337, §§ 55, p. 80; 56, p. 81; 62, p. 83.) Shortly thereafter, the voters in the November 2006 general election approved Proposition 83, which also provided for indeterminate terms of commitment for SVP’s. As a result of these 2006 amendments to the SVPA, if the People bring a petition and prove beyond a reasonable doubt that an individual is an SVP, the individual is committed for an indefinite term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281 (Bourquez) [review denied Feb. 27, 2008].)Thereafter the DMH must, at least once a year, conduct an examination of the person’s mental condition and issue a report. (§ 6605, subd. (a).) At the person’s request, he or she may retain an independent expert to also conduct an examination, or, if the person is indigent, have an expert appointed by the court. (Ibid.) The annual report must “include consideration of whether the committed person currently meets the definition of an SVP 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.” (Ibid.) DMH must file the report with the court and serve the report on the committed individual and the prosecuting agency involved in the initial commitment. (Ibid.)
If, as a result of the examination, DMH determines that the person no longer is an SVP, the DMH must authorize the person to file a petition for conditional release or an unconditional discharge. (§ 6605, subd. (b).) If, at a show cause hearing on that petition, the trial court determines “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,” the court must set an evidentiary hearing on the issue. (§ 6605, subd. (c).) At the hearing, the person has the right to retain an expert or, if indigent, to have the court appoint an expert on his or her behalf. The committed person also is entitled to all constitutional protections that were afforded to him or her at the initial commitment proceeding. (§ 6605, subd. (d).) “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 jury finds in the committed person’s favor, the person shall be unconditionally released and discharged. (§ 6605, subd. (e).)
Even if the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file a petition pursuant to section 6608. (§ 6608, subd. (a).) No hearing shall be held on a section 6608 petition until the person has been committed for at least one year. (§ 6608, subd. (c).) Under section 6608, the court may deny the petition without a hearing if it finds the petition is frivolous. (§ 6608, subd. (a).) If the petition is not frivolous, the court must hold a hearing “to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d).) The burden of proof is on the committed person to prove his case by a preponderance of the evidence. (§ 6608, subd. (i).) If the court determines the committed person would not be a danger, the court shall order the person placed in a conditional release program for one year, and hold a hearing at the end of the year to determine if the person should be unconditionally released. (§ 6608, subd. (d).) Once a section 6608 petition has been denied, the court shall deny any subsequent 6608 petition “unless it contains facts upon which a court could find that the condition of the committed person [has] so changed that a hearing [is] warranted.” (§ 6608, subd. (a).)
Finally, in addition to the annual review, if the director of DHS at any time determines “that the person’s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community,” the director shall forward a report and recommendation for conditional release to the court and the parties and the court shall set a hearing in accordance with the procedures set forth in section 6608. (§ 6607.) DMH may also seek judicial review under section 7250 if it has reason to believe the person is no longer an SVP. (§ 6605, subd. (f).)
II.
Retroactive Application of 2006 Amendments
The initial petition was filed before the 2006 amendments were enacted. Over defendant’s objection that the version of the SVPA in effect prior to the 2006 amendments should apply, the prosecutor amended the petition before trial to notify defendant that he would be subject to commitment for an indeterminate term. Defendant contends that the change from a two-year to an indefinite term of commitment, and other changes in the procedure for obtaining release, and in the burden of proof made by the 2006 amendments, substantially changed the legal consequences of his prior criminal acts and mental condition. He concludes that application of these changes to a pending initial commitment proceeding constitutes an impermissible retroactive application of the law.
Like Senate Bill No. 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment. Although the two enactments are essentially the same, there are slight differences. Defendant’s recommitment petition was heard and granted before the passage of Proposition 83. Therefore, his challenge to the commitment order is directed against the application of the SVPA as amended by Senate Bill No. 1128.
Defendant’s argument has been consistently rejected both in the context of petitions for an initial commitment under the SVPA, and petitions for extending the commitment of a person whose two-year term under the prior version of the SVPA is about to expire. (See People v. Riffey (2008) 163 Cal.App.4th 474, 482-483 (Riffey) [petition for review filed June 30, 2008]; People v. Carroll (2007) 158 Cal.App.4th 503, 512-515 (Carroll) [review denied April 9, 2008]; Bourquez, supra, 156 Cal.App.4th 1275, 1288.) We find the reasoning of these cases to be persuasive and adopt it as our own.
Application of a law is retroactive “ ‘only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date.’ ” (Bourquez, supra, 156 Cal.App.4th at p. 1288.) “In determining whether someone is an SVP, . . . the person’s mental state will be determined . . . at the time of commitment. While past qualifying sex crimes are used as evidence in determining whether the person is an SVP, a person cannot be so adjudged ‘unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend.’ ” (Bourquez, at p. 1289.) In light of the fact that the determination that defendant is an SVP is made based upon his current mental state, “the significant point with respect to retroactivity is not the filing of the petition, but trial and adjudication under the SVPA. [Citation.] The conduct or event (for want of a better term) to which the SVPA attaches legal consequences is the person’s mental condition at the time of adjudication, not at the time the . . . petition is filed.” (Carroll, supra, 158 Cal.App.4th at p. 514, fn. omitted.) Therefore, the applicable law is the law in effect at the time of trial and adjudication, and application of the 2006 amendments to the pending petition is not retroactive.
III.
Due Process
Defendant next contends that the SVPA, as amended in 2006, violates state and federal constitutional due process principles by providing for an indeterminate commitment term. He further contends that the procedures for review and release following an initial commitment fail to provide adequate safeguards to ensure that the committed person continues to have a current mental illness that makes him or her dangerous to the public, and instead relies upon the initial findings and an unwarranted presumption of continuing mental illness. He specifically objects that: (1) instead of automatic judicial review every two years, the DMH conducts an annual review, and judicial review is triggered only if the DMH authorizes a petition based upon its finding defendant’s condition has changed, or the defendant files an unauthorized petition pursuant to section 6608; (2) unreasonable restraints are placed upon the defendant’s ability to obtain judicial review when filing an unauthorized petition under section 6608, including summary dismissal if the court determines the petition is frivolous or if the petition fails to include facts showing that his condition has changed; (3) in an unauthorized petition, the burden is shifted to the committed person to prove by a preponderance of evidence that he is entitled to release. He argues the indeterminate term, coupled with the inadequate procedure for release following an initial commitment, creates an unreasonable risk that a person could be erroneously deprived of liberty for years after he no longer suffers from a mental illness qualifying him or her as an SVP.
The due process issues defendant raises are now pending before our Supreme Court in People v. Mckee, review granted July 9, 2008, S162823, formerly published at 160 Cal.App.4th 1517 (McKee) and People v. Johnson, review granted August 13, 2008, S164388, formerly published at 162 Cal.App.4th 1263 (Johnson). The same arguments have been considered and rejected in Riffey, supra, 163 Cal.App.4th at pp. 486-489; People v. Boyle (2008) 164 Cal.App.4th 1266 [80 Cal.Rptr.3d 437, 4430447] (Boyle); and People v. Garcia (Aug. 8, 2008, F052703, ___ Cal.App.4th ___ [2008 WL 3198118] (Garcia).) We find these decision to be well reasoned and therefore shall only briefly restate their reasoning as applicable.
An initial civil commitment for an indefinite term does not violate due process merely because of the potential for a lengthy commitment. (See Jones v. United States (1983)463 U.S. 354, 368 (Jones) [statute providing for indefinite commitment of a criminal defendant acquitted by reason of insanity and requiring defendant to prove by preponderance of evidence that he is no longer insane or dangerous in order to be released does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks) [upholding Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that the committed person is no longer dangerous].) An indefinite civil commitment is consistent with due process if the statute provides fair and reasonable procedures to ensure that the person is held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)
The procedures for postcommitment review and release in the SVPA, as amended in 2006, are constitutionally adequate to ensure that the committed person is released once he or she no longer qualifies as an SVP. The DMH must examine the person annually to determine whether he or she still qualifies as an SVP and must file a report with the court. The SVP is entitled to retain his own expert or to have one appointed (§ 6605, subd. (a).) If the DMH concludes the SVP no longer meets the commitment criteria and authorizes the person for conditional release, and the court finds probable cause, the People must prove beyond a reasonable doubt that the person remains mentally ill and dangerous (§ 6605, subds. (b) & (d).) Even if the DMH does not authorize a petition, the committed person may file a petition pursuant to section 6608, subdivision (a). Unless the court finds the petition frivolous or includes no evidence of changed circumstances, it must set a hearing and the committed person must prove by a preponderance of the evidence that he is entitled to release. (§ 6608, subds. (a), (d), (i).) The DMH can also recommend conditional release at any time, in which case a hearing will be set in accordance with section 6608. (§ 6607.)
Defendant asserts this procedure relies upon a presumption based upon the findings of the initial commitment hearing that the SVP’s mental illness continues to exist, and risks that a committed person will remain committed based upon the initial findings rather than a regular assessment of his or her current mental condition and dangerousness. The initial commitment hearing provides a significant level of due process protection. Thereafter, the substitution of annual review by the DMH and the procedure for authorized and unauthorized petitions, for the requirement in the former version of the SVPA of automatic full judicial review every two years, strikes a reasonable and fair balance between protection of the rights of committed persons not to be detained any longer than their mental illness and dangerousness requires, and the interest of the state in protecting the public from persons who are mentally ill and dangerous, and in avoiding unnecessary relitigation of issues, in the absence of some evidence of a change in the conditions underlying the initial commitment. (See, e.g., Hendricks, supra, 521 U.S. at p. 363 state has legitimate interest in protecting community from the mentally ill and dangerous; see also United States v. Wattleton (2002) 296 F.3d 1184, 1200 state also has an interest in avoiding unnecessary relitigation of issues.)
Nor does any principle of due process require that the periodic review of an SVP’s mental condition take the form of an automatic full judicial hearing. The Supreme Court has recognized that regular examination of an involuntarily committed individual’s mental status by medical personnel who are free to evaluate independently the patient’s mental status and need for treatment protects the individual from being wrongfully detained. (Parham v. J.R. (1979) 442 U.S. 584, 602-612.) The SVPA requires at least annual reviews of an individual’s mental health status and forwarding of the reviews to the committing court and the prosecuting attorney. It also requires DMH to authorize the individual to file a petition for release if the examination reveals he or she is no longer an SVP. The individual is further protected by the right to retain, or if indigent, to have the court appoint, a qualified expert to examine him or her. (§ 6605, subd. (a).) The annual examinations by DMH, the right to an independent examination, and the petitioning procedures pursuant to sections 6605 and 6608 minimize the risk of an erroneous determination.
Nor does the amended SVPA violate due process by requiring the committed person to bear the burden of showing that he or she is no longer a mentally ill and dangerous SVP when the DMH does not authorize a petition under section 6605. If DMH does not authorize a petition, the committed person may still file an unauthorized petition and bears the burden of showing he or she is no longer an SVP. It is not unreasonable to rely on the findings of DMH that an individual’s mental status remains unchanged, and the committed person still is provided with a meaningful opportunity to prove it has changed. Under section 6605, subdivision (a), the committed person has the right to an independent examination and could use the evaluation by an independent expert as evidentiary support for a petition brought without the concurrence of DMH. Placing some burden on the committed individual after the state has proved beyond a reasonable doubt that he or she is an SVP, and after the DMH, in an annual review, has found no change, is not unreasonable. The burden of proof by a preponderance of evidence requirement is no heavier than the burden of proof placed on a person found not guilty by reason of insanity that the United States Supreme Court implicitly approved in Jones, supra, 463 U.S. at pp. 357, 366-368.) The review hearing procedure approved in Jones is analogous to a petition for release pursuant to section 6608.
Defendant also asserted in his opening brief that the language found in former section 6605, subdivision (d) as amended by Senate Bill No. 1128 denies him due process because there is a presumption built into the statute that nonparticipation in treatment is evidence of no change in mental condition and because the statute requires completion of a treatment program even if he is no longer an SVP. This issue is moot because the language to which defendant objects was deleted with the passage of Proposition 83. Since only the latter version would apply in the event that defendant petitions for release, it is unnecessary to address the constitutionality of a provision that is no longer in effect.
IV.
Prohibition of Ex Post Facto Laws and Cruel and Unusual Punishment
Defendant next contends that the amendment providing for an indeterminate term violates the constitutional prohibition against cruel and unusual punishment, and violates the prohibition of ex post facto laws. The ex post facto clause applies only to penal statutes. A commitment statute that is civil in purpose and does not impose punishment does not violate this constitutional prohibition. (Hendricks, supra, 521 U.S. at pp. 370-371.) Similarly, the prohibition of cruel and unusual punishment has no application to a civil commitment proceeding that is not punitive. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 (Chambless).)
Defendant includes the double jeopardy clause of the United States Constitution in his list of constructional provisions he contends are violated, but he provides supporting argument only with respect to his challenges based on state and federal prohibitions of ex post facto laws, and against cruel and unusual punishment. We therefore deem the double jeopardy challenge to be waived.
It is well settled that a commitment under the version of the SVPA prior to the 2006 amendments is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179 (Hubbart) [SVPA does not impose punishment or implicate ex post facto concerns]; Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2 [double jeopardy and cruel and unusual punishment challenges to the SVPA fail because SVPA is not punitive in purpose or effect and does not impose liability or punishment for criminal conduct]; People v. Carlin (2007) 150 Cal.App.4th 322, 348 [same].) Defendant nonetheless contends that the changes imposing an indeterminate term, and eliminating the automatic full judicial review of the committed person’s status every two years, fundamentally changed both the purpose and effect of the SVPA and render the commitment punitive, not civil. This argument also has already been considered and rejected in several recent decisions. (See Boyle, supra, 164 Cal.App.4th at pp 1280-1285; Garcia, supra, ___ Cal.App.4th ___ 2008 WL 3198118.)
Defendant first asserts that the legislative purpose in enacting these changes to the SVPA was expressly punitive. In support of this assertion he cites references in the Governor’s press release after he signed Senate Bill No. 1128 to enhance penalties, including increased punishment for continuous sexual abuse and other criminal offenses. Defendant also notes that the title of Senate Bill No. 1128 was the “Sex Offender Punishment, Control, and Containment Act of 2006 (italics added) and that the bill analysis also refers to increases in the prison term for child rape and “[t]oughens penalties” for child pornography and internet predators, and increases parole time for violent sexual offenses (http://info.sen.ca.gov/pub/05-06/bill/sen/sb_1101-1150/sb_1128_cfa_20060830_113353_sen_floor.html). The title actually reflects the varied purposes of the wide-ranging provisions included in Senate Bill No. 1128, because in addition to punishment, the title refers to “control” and “containment.” In any event, the references to punishment in the title, and to increased penalties in the analysis, relate to other expressly penal measures that were included in the Senate Bill No. 1128 in addition to the amendments to the SVPA that defendant challenges. The cited language therefore has little to no relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVP’s.
Defendant relies upon the italicized words in the following quote in the Governor’s press release that state Senate Bill No. 1128 “enhances penalties and implements new laws for registered sex offenders, including punishing continuous child sexual abuse by an automatic 25-year-to-life prison sentence, making possession of pornography depicting children a felony in some cases, discouraging plea bargains for violent sex offenders, and including youth recreational facilities in addition to schools when restricting access for sex offenders. Among the bill’s many provisions, it also requires every person required to register as a sex offender to be subject to assessment using the State-authorized Risk Assessment Tool for Sex Offenders, a valuable tool widely recognize by experts and used by law enforcement.” (http://gov.ca.gov/index.php?/press-release/3975/ (italics added).)
Defendant alternatively argues that regardless of the Legislature’s intent, under the seven-factor test set forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, the effect of the 2006 amendments to the SVPA is punitive. These factors are: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only upon a finding of scienter; (4) whether it promotes the traditional aims of punishment, i.e., retribution and deterrence; (5) whether the behavior to which it applies is a crime; (6) whether an alternative nonpunitive purpose exists to which it may rationally be connected, and (7) whether the sanction appears to be excessive in relation to that alternative purpose. (Ibid.) Applying these factors, defendant argues that his commitment under the SVPA resembles a prison sentence under California’s indeterminate sentencing law and asserts that the triggering behavior for a commitment under the SVPA is criminal. He further contends that “[a]ny guise of commitment for the purposes of either protecting the public or treating the SVP evaporated with the adoption of an indeterminate commitment and no meaningful, full judicial review” to insure he is detained only as long as he continues to qualify as an SVP. Finally, he asserts, without further explanation, that the indeterminate term promotes the aim of retribution and deterrence, and is excessive.
To the contrary, although involuntary commitment to the state hospital certainly involves an affirmative restraint, “the State may take measures to restrict the freedom of the dangerously mentally ill,” and this type of commitment is historically regarded a “nonpunitive detention.” (Hendricks, supra, 521 U.S. at p. 363.) In analyzing whether the Kansas SVPA was punitive, the court in Hendricks also recognized that “unlike a criminal statute no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a ‘mental abnormality’. . . rather than on one’s criminal intent.” (Id. at p. 362.) The same is true of California’s SVPA which, both before and after the 2006 amendments, bases the commitment upon a current “diagnosed mental disorder.” (§ 6600, subds. (a)(1), (c).) Although commitment requires a finding of a person’s past criminal convictions, it also requires a current showing of dangerousness. The behavior to which the SVPA applies is not a crime, but rather the existence of a mental illness that may lead to criminal behavior if the person is not confined and treated. We see no analogy between the indeterminate term of commitment under the SVPA (§ 6604), and an indeterminate prison term, which of course has historically been considered punitive. Nor does the elimination of the requirement of filing a new petition every two years compel the conclusion that the commitment is punitive. The court in Hubbart observed that “nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejecting Hendricks’s claim that the scheme imposed punishment because confinement was ‘potentially indefinite,’ the court made clear that the critical factor is whether the duration of confinement is ‘linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.]’ ” (Hubbart, supra, 19 Cal.4th at p. 1176.) As we have explained in addressing defendant’s due process challenge to the indeterminate term, the amended SVPA does not permit commitment once a person no longer qualifies as an SVP, and provides adequate procedures to ensure that a person who is involuntarily committed under the SVPA continues to be a mentally ill and dangerous SVP, and that the individual will be released if he or she is no longer mentally ill. Since neither the indeterminate term, nor the changes in postcommitment release procedures, authorize involuntary commitment of individuals who are no longer mentally ill, we conclude that commitment pursuant to the SVPA continues to be civil, not punitive. Absent a punitive purpose and effect, rendering the commitment penal, the constitutional prohibitions of ex post facto laws and cruel and unusual punishment are not implicated.
V.
Equal Protection
Next, defendant contends the SVPA, as amended, violates his constitutional right to equal protection because persons committed under the Mentally Disordered Offender Act (MDO) (Pen. Code, § 2960 et seq.), the Lanterman-Petris-Short Act (LPS) (§ 5000 et seq.), and persons committed after being found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.) are not subject to indeterminate terms of commitment, and have more opportunities to petition for release and obtain regular judicial review of their status.
“ ‘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.) Defendant contends that a person committed as an SVP is similarly situated to a person committed as an MDO, or under the LPS, or after a verdict of NGI, because all of these commitments are based upon mental illness and dangerousness, yet only a person committed under the SVPA is subject to an indeterminate term.
The question whether the indeterminate commitment term and changes in the procedure for petitions for release violate the SVP’s right to equal protection is currently pending before the California Supreme Court in McKee, supra, S162823 and Johnson, supra, S164388. Every court that has considered this argument has found it to be unpersuasive. (See Boyle, supra, 164 Cal.App.4th at pp. 1285-1288; Riffey, supra, 163 Cal.App.4th at pp. 489-492; Garcia, supra, ___ Cal.App.4th ___ [2008 WL 3198118].) We also reject defendant’s essential premise that the classes of MDO’s, persons committed under LPS, and persons committed after an NGI verdict are similarly situated with SVP’s with respect to the commitment term and procedure for review of status and release after an initial commitment because that premise overlooks important differences in these commitment schemes and their purposes with respect to the degree and type of danger they pose, and severity of mental illness, prognosis, and amenability of treatment.
SVP’s represent a very small number of dangerous people that have committed certain specified crimes and suffer a certain type of mental illness. (See Cooley, supra, 29 Cal.4th at p. 253 [the SVP Act targets “a small but extremely dangerous group of [SVP’]s. . . .”].) In contrast, persons who are involuntarily committed under the LPS may not have not committed any crime. (§ 5300.5, subd. (b).) Nor is any specific crime necessary for the involuntary commitment of an individual who is found not guilty by reason of insanity. (Pen. Code, § 1026.) Involuntary commitment under the LPS, or as a person found not guilty by reason of insanity, does not require the person to have a mental illness that predisposes him or her to commit particular crimes in the future. Also, both classifications may include persons who have mental illnesses that are short-lived and not likely to reoccur. An individual who is committed as a mentally disordered offender may have a mental illness that can be readily treated with medication.
In contrast to a person committed under the LPS, an MDO, or a person found not guilty by reason of insanity, an SVP is a person who has committed specific types of crimes and has a mental disorder that “predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) An SVP, because of his or her mental illness, “presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (People v. Superior Court (Ghilotti) 162 Cal.App.4th 888, 922.) Moreover, the danger to the community is particularly high, because in addition to a high rate of recidivism, their offenses are typically directed “toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (§ 6600, subd. (c); People v. Hurtado (2002) 28 Cal.4th 1179, 1182.) For all these reasons, the particular danger to the public posed by SVP’s distinguishes them from the other classifications defendant contends are similarly situated.
In addition to differences in the type and degree of danger posed by sexually violent predators, there are differences in treatment and prognosis between an SVP, an MDO, a person committed under the LPS, and a person committed following a finding of NGI. The other classifications may include individuals who have mental illnesses that can readily be treated or may be of a short duration, whereas SVP’s have a mental illness that generally requires long-term treatment and only a limited likelihood of cure. (Garcia, supra, ___ Cal.App.4th ___, 2008 WL 3198118.)
In sum, SVP’s have committed a particular class of crime associated with a high rate of recidivism that poses a greater risk to the general public, and suffer from mental illness that typically requires longer-term treatment with a lower likelihood of success than the other classifications. In light of these differences between the type of crimes committed, the risk of reoffending, the degree of danger the person poses to the public, the need for and susceptibility to treatment, and prognosis, we conclude that individuals found to be SVP’s under the SVPA are not similarly situated to an MDO, a person committed under the LPS, or persons committed following a verdict of NGI, and therefore singling out the class of SVP’s for an indeterminate commitment term does not violate their right to equal protection.
VI.
Right Of Access To The Courts
Defendant finally contends the amended SVPA denies him his First Amendment right to petition the government and to have meaningful access to the courts because: (1) an SVP can file a petition for release under section 6605 only if the DMH determines the person is no longer an SVP and the DMH decision not to authorize a petition under section 6605 is not subject to judicial review; (2) if the court finds no probable cause to believe defendant’s mental disorder has changed it need not set a section 6605 petition for a full hearing; and (3) a petition under section 6608, which defendant may file without the concurrence of the department, can be summarily denied if the court determines it is frivolous.
Defendant argues that these restrictions establish the DMH as a gatekeeper between an SVP and the courts, with absolute discretion to decide whether to authorize a section 6605 petition, and that the DMH’s decision that his status is unchanged will not be subject to judicial review. (See Ex Parte Hull (1941) 312 U.S. 546, 549 (Hull) [state may not impair defendant’s right to petition for habeas corpus by refusing to forward petition to court on grounds petition did not comply with legal standards).] He also contends that allowing a court to deny a full hearing on a section 6605 petition if it finds no probable cause, or to deny an unauthorized section 6608 if frivolous, deprives the committed person of meaningful access to the courts. (See Bounds v. Smith (1977) 430 U.S. 817, 825, overruled on other grounds in Lewis v. Casey (1996) 518 U.S. 343 [prisoners must have “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts,” including access to law libraries).]
We see no analogy between the procedure for authorized and unauthorized petitions following an initial commitment and the cases upon which defendant relies. In Hull, supra, 312 U.S. 546, the court invalidated a prison regulation that permitted prison officials to intercept petitions for habeas corpus they deemed not to be in proper form and return them to the prisoner instead of forwarding them to the courts. The court held “the state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a 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 that court alone to determine.” (Id. at p. 549.) The effect of the regulation in Hull was to allow a nonjudicial officer to decide the legal adequacy of a petition for habeas corpus. If the prison official determined it was inadequate, the prisoner had no other means of filing the petition, and was denied access to the court. Unlike the regulation at issue in Hull, which substituted the opinion of prison official for that of the court on a legal issue, under the SVPA the annual review by the DMH is of the defendant’s continued status as an SVP, particularly of his mental condition, a matter within its expertise, and its decision does not preclude a petition to the court. If the DMH determines there is a change, it authorizes a petition and the person’s status is reviewed pursuant to the procedure set forth in section 6605. A decision by the DMH not to authorize a petition under section 6605 does not preclude the committed person from filing a petition. In fact, section 6608, subdivision (a) states: “Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health.” (§ 6608, subd. (a).) A committed person who disagrees with the DMH and believes that his mental condition has changed and he no longer qualifies as an SVP has the right to file a petition under section 6608, to have counsel appointed to represent him, and to seek the appointment of medical experts to evaluate him. (§§ 6608, subd. (a); 6605, subd. (a).) These procedures insure the committed person continues to have meaningful access to the court even when the DMH does not authorize a petition.
Nor are we persuaded that the statutory provisions allowing a court to deny a full hearing on a section 6605 petition if it finds no probable cause, or to deny an unauthorized section 6608 petition if frivolous, deprives a committed person of his or her First Amendment right to petition and have meaningful access to the courts. A judicial officer is charged with making the determination regarding probable cause, or the frivolousness of the petition. In addition, the SVP has the assistance of counsel to make his initial showing. (§§ 6608, subd. (a).) Defendant provides no authority for the proposition that the First Amendment right to petition and for meaningful access to the courts includes a right to a full evidentiary hearing or trial on a claim a court has determined to be frivolous, or not supported by a minimal threshold showing of probable cause. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, fn. 4 [“The right to petition is not absolute, providing little or no protection for baseless litigation or sham or fraudulent actions”];see also Riffey, supra, 163 Cal.App.4th at pp. 492-493 [SVPA provisions for authorized petitions based upon a review by the DMH, allowing for summary denial of a frivolous petition under § 6608, and requiring the defendant to bear the burden of proof, do not violate the committed person’s First Amendment right to petition and to have meaningful access to the courts]; Garcia, supra, ___ Cal.App.4th ___ [2008 WL 3198118] [same].)
Conclusion
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.