Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. TCF079826-01. James W. Hollman, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Cornell, Acting P.J.
A jury found appellant Kevin John Chavez to be a sexually violent predator (SVP), and the trial court committed him for an indeterminate term. Chavez challenges his commitment on the grounds that the evidence was insufficient to establish that he met the criteria of an SVP, instructional error, and the evaluations supporting his commitment were invalid, requiring reversal of the commitment order. Additionally, Chavez raises numerous constitutional challenges to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). We reject his challenges and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On September 21, 1995, Chavez was committed to the California Youth Authority (CYA) for violations of Penal Code sections 288, subdivision (a) and 288a, subdivision (c). One of the documents introduced into evidence indicated that the date the offenses were committed was January 1, 1991, at which time Chavez was 13 years old.
CYA was renamed the Division of Juvenile Justice of the Department of Corrections and Rehabilitation, effective July 1, 2005. (Gov. Code, §§ 12838, subd. (a), 12838.13.)
On October 2, 2001, Chavez pled guilty to violating Penal Code section 288, subdivision (a) and admitted the special allegation that he was a stranger to the victim or befriended the victim for the purpose of committing a lewd or lascivious act as set forth in Penal Code section 1203.066, subdivision (a)(3). Chavez was sentenced to six years in state prison for this offense. Chavez was 23 years old at the time he committed this offense. The offense was committed nine months after Chavez was released from CYA on parole.
On October 23, 2006, a petition to commit Chavez as an SVP was filed in Tulare County Superior Court. On December 1, 2006, the People and Chavez submitted on the issue of probable cause based upon the evaluations attached to the petition. The trial court made a finding of probable cause and ordered that Chavez be held at Coalinga State Hospital pending a trial on the petition. The trial was held in May 2008.
Dr. Mark Schwartz, a clinical psychologist under contract with the Department of Mental Health (Department) to perform SVP evaluations, examined Chavez in September 2006 and December 2007. As part of the evaluations, Schwartz interviewed Chavez, reviewed Department files on Chavez, and reviewed Chavez’s prison and medical records. Schwartz diagnosed Chavez as suffering from the mental disorder of pedophilia, with a sexual attraction to males.
Schwartz was of the opinion that Chavez lacked volitional control, as demonstrated by his reoffending a mere nine months after being released from CYA. Schwartz also believed Chavez was likely to commit another sexually violent offense. Lastly, Schwartz opined that Chavez was not a suitable candidate for outpatient treatment.
Dr. Michael Musacco, a clinical psychologist in private practice and a member of the Department’s panel of SVP evaluators, evaluated Chavez in November 2007. Musacco interviewed Chavez and reviewed numerous documents in preparing his evaluation.
Musacco diagnosed Chavez as suffering from “pedophilia, sexually attracted to males, nonexclusive type.” Musacco believed that Chavez’s pedophilia affected his volitional or emotional capacity and that Chavez was predisposed to reoffend as an SVP. Musacco also opined that Chavez was not a good candidate for outpatient treatment because the degree of Chavez’s pedophilia would make it “pretty hard for him to keep from reoffending.”
After the People rested, Chavez moved for a defense verdict on the basis that the evidence was insufficient to establish he was an SVP. The trial court denied the motion.
Chavez presented expert testimony from Dr. Theodore Donaldson, a clinical psychologist and former member of the Department’s panel of SVP evaluators. Donaldson reviewed the evaluations prepared by Schwartz and Musacco and interviewed Chavez for one hour in February 2008.
Donaldson opined that there was insufficient evidence to make a diagnosis of pedophilia. Donaldson testified that with respect to the issue of control, Chavez had not acted in any way consistent with pedophilia since his last arrest. Donaldson also opined that the 2001 incident demonstrated control on Chavez’s part because Chavez touched the victim while the victim was still clothed and then “quit.” Additionally, Donaldson indicated that the 2001 offense did not “involve[] some pedophilic interest in children.” Donaldson also believed that Chavez was not likely to reoffend.
On May 16, 2008, the jury found true the allegation that Chavez was an SVP. On that same date, the trial court ordered Chavez committed to the custody of the Department for an indeterminate term for appropriate treatment and confinement.
DISCUSSION
I. Challenge to Evaluations Filed in Support of Petition
Chavez contends his commitment as an SVP was obtained illegally in that the petition was not supported by the requisite evaluations. Chavez acknowledges that two evaluations supporting the petition were filed, but argues those evaluations are invalid. The evaluators followed the protocol set forth in a handbook issued by the Department. Chavez claims the protocol was not a “standardized assessment protocol,” as required under section 6601, subdivision (c) that was promulgated as a regulation pursuant to the Administrative Procedures Act (APA) and, specifically, Government Code section 11340.5, subdivision (a).
Clinical Evaluator Handbook and Standardized Assessment Protocol (Aug. 2007).
Government Code section 11340.5, subdivision (a) provides:
“No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation …, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.”
The Office of Administrative Law (OAL) determines whether an uncodified guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule is a regulation subject to the APA’s requirements for formal adoption. (Gov. Code, § 11340.5, subds. (a)-(c).)
On August 15, 2008, the OAL declared portions of the handbook issued by the Department setting forth a standardized assessment protocol constituted an illegal regulation. (People v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).) Although the OAL determination is not binding on this court, it is entitled to deference. (Grier v. Kizer (1990) 219 Cal.App.3d 422, 434, 435.)
Chavez never challenged the assessment protocol at the time of the probable cause hearing or at the trial. He contends the failure to object in the trial court to the assessment protocol should be overlooked because the OAL decision was issued in August 2008, after the conclusion of his trial in May 2008. Regardless of the date of the OAL decision, there was nothing preventing Chavez from raising and preserving this objection before the OAL issued its decision. Therefore, he has forfeited any claim of error. (People v. Taylor (2009) 174 Cal.App.4th 920, 937-938 (Taylor); Medina, supra, 171 Cal.App.4th at p. 818.)
II. Sufficiency of Evidence of SVP Criteria
Chavez contends his commitment order must be reversed because the evidence was insufficient to establish he is an SVP.
When an appellant challenges the sufficiency of the evidence to support the judgment, our review is limited. We review the whole record most favorably to the judgment to determine whether there was substantial evidence, that is, evidence that was reasonable, credible, and of solid value from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
A person may be civilly committed as an SVP under the SVPA upon proof beyond a reasonable doubt that the person (a) has been convicted of one predicate sex offense as defined in the statute, and (b) “has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§§ 6600, subd. (a)(1), 6604.) The jury “must conclude that the person is ‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) This standard requires “much more than the mere possibility that the person will reoffend,” but it does not call for “a precise determination that the chance of reoffense is better than even.” (Ibid.)
Specifically, Chavez challenges the sufficiency of the evidence proving that he had a diagnosable mental disorder and that he was likely to reoffend if released. He asserts that since the 1995 offenses were committed when he was under 16 years of age, the single 2001 conviction was insufficient to support a diagnosis of pedophilia. Chavez’s contention is flawed.
Schwartz testified that there are three criteria for diagnosing pedophilia: (1) recurrent, intense, sexually arousing behaviors, urges, or fantasies involving prepubescent children; (2) interpersonal distress caused by the sexual fantasies; and (3) the person must have been 16 years of age or older at the time of the urges, behaviors, or fantasies. Schwartz also testified that Chavez had been committed to CYA at the age of 17, had admitted to having sexual fantasies about young males while at CYA, and had committed a sexual offense against a young male in 2001, about nine months after being released on parole from CYA. Schwartz then opined that this established “pedophilic behavior” on the part of Chavez.
Musacco acknowledged that he would never diagnose a person under the age of 16 years as a pedophile, but that a person’s behavior under the age of 16 was not irrelevant to a diagnosis. He also stated that the conduct underlying Chavez’s 1995 convictions was diagnostically significant, even if Chavez was under the age of 16 years at the time the offenses were committed. Furthermore, Musacco testified that his diagnosis of pedophilia was based not just on the 2001 incident, but also in significant part on Chavez’s admission that he had sexual fantasies involving young males while at CYA and was sexually aroused by children.
Chavez’s expert witness, Donaldson, offered a different opinion and diagnosis, concluding the evidence was not sufficient for him to diagnose pedophilia. This, however, amounts to a difference of opinion among the experts. “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]”.…’ [Citation.]” (People v. Barnes (1986) 42 Cal.3d 284, 306.)
“Although unanimity of expert opinion carries persuasive value [citation], a jury, under certain circumstances, can properly reject such opinions.” (People v. Coogler (1969) 71 Cal.2d 153, 166.) Here, we do not have unanimous expert opinion, but two of three expert witnesses who testified diagnosed Chavez as having the mental disorder of pedophilia. The jury reasonably may reject the opinion of Donaldson, while crediting the opinions of Schwartz and Musacco.
We do not reevaluate the credibility of the witnesses, nor do we reweigh the evidence. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) Resolving all conflicts in the evidence in support of the order of commitment, we conclude that the evidence presented here was sufficient to prove the allegations in the petition beyond a reasonable doubt. (Ibid.)
III. Instructional Error
Chavez contends the trial court erred prejudicially when it failed to instruct the jury that in order for the 1995 convictions to be considered sexually violent offenses, he must have been 16 years of age or older when he committed them.
Chavez is correct in that he must have been 16 years of age or older at the time he committed the juvenile offenses in order for those offenses to constitute convictions for purposes of the SVPA. (§ 6600, subd. (g)(1).) Regardless, any failure to so instruct the jury was not prejudicial.
Section 6600, former subdivision (a)(1) had required conviction of two or more sexually violent offenses. At the time of Chavez’s trial, section 6600, subdivision (a)(1) had been amended to provide that a person must have been convicted of one sexually violent offense against one or more victims in order to qualify for commitment as an SVP. (Stats. 2006, ch. 337, § 53, eff. Sept. 20, 2006; Prop. 83, § 24, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Consequently, the People were required to prove that Chavez had one conviction for a sexually violent offense, not two.
Chavez pled guilty in 2001 to violating Penal Code section 288, subdivision (a) and to the special allegation under Penal Code section 1203.066, subdivision (a)(3). Pursuant to section 6600.1, nonviolent sexual offenses on a victim under the age of 14 years constitute a “sexually violent offense” for purposes of the SVPA. (People v. Superior Court (Johannes)(1999) 70 Cal.App.4th 558, 566-567.) Penal Code section 288, subdivision (a), by definition, applies only when the victim is under 14 years of age. Therefore, Chavez’s conviction in 2001 for violating Penal Code section 288, subdivision (a) constituted a sexually violent offense for purposes of the SVPA. (§§ 6600, subd. (b), 6600.1.)
Furthermore, Proposition 83 revised section 6600.1 to delete the requirement that the offending act had to involve substantial sexual conduct. (As amended by initiative measure, Prop. 83, § 25, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Consequently, the extent of the sexual conduct involved in Chavez’s 2001 conviction is irrelevant for purposes of whether it constitutes a sexually violent offense.
The jury was instructed that a violation of Penal Code section 288, when committed on a victim under the age of 14 years, was a sexually violent offense for purposes of the SVPA. Absent some contrary indication in the record, and there is none, we presume the jury follows its instructions (People v. Hardy (1992) 2 Cal.4th 86, 208) “and that its verdict reflects the legal limitations those instructions imposed” (Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 808).
Defense counsel argued to the jury that the underlying conduct of the 2001 offense was not sexually violent. We, however, presume the jury correctly applied and followed the trial court’s instructions and not the argument of counsel. (People v. Mayfield (1993) 5 Cal.4th 142, 179.) And, even though Donaldson testified that the underlying conduct in the 2001 offense was not “sexually violent,” he also made it clear that he was not offering an opinion on whether Chavez had been convicted of a sexually violent offense for purposes of the SVPA.
We conclude there is no evidence and no reasonable possibility that the jury failed to apply and follow the instructions, which required the jury to find Chavez’s 2001 conviction was a sexually violent offense for purposes of the SVPA. Therefore, any inferences or conclusions drawn by the jury with respect to the 1995 offenses were merely surplusage, not prejudicial, and do not warrant reversal of the commitment order. (See People v. Williams (1988) 45 Cal.3d 1268, 1310-1311.)
IV. Constitutional Infirmities in SVPA
We will address, and reject, all of Chavez’s claims that the SVPA is constitutionally infirm. The current “statutory scheme, on its face, is constitutional.” (Taylor, supra, 174 Cal.App.4th at p. 931.)
Due Process of Law
Chavez argues that the SVPA, as modified by Proposition 83 to provide for an indeterminate term of commitment, violates due process because the mechanism for judicial review of an order of commitment is inadequate. This is so because (1) the committee is not entitled to the assistance of an expert and has the burden of proof to establish that he is fit for release if the committee petitions for release, and (2) the Department is not required to seek mandatory periodic judicial review of his continued commitment. Chavez also contends that as to him, due process additionally was violated because the petition sought only a two-year commitment and he therefore received no notice that he was subject to an indeterminate commitment.
Chavez’s contentions regarding the inadequacy of judicial review previously have been addressed and rejected by California courts and the United States Supreme Court.
A civil commitment for an indeterminate term does not violate due process. In Kansas v. Hendricks (1997) 521 U.S. 346, 353 (Hendricks), the United States Supreme Court upheld the constitutionality of a statute that provided for an indeterminate commitment of an SVP “‘until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.’ [Citation.]” The Kansas scheme provided for an annual review to determine whether continued commitment was warranted; the committed person also could file a petition seeking to be released. (Hendricks, at p. 353.) Because of the requirement of an annual review, the commitment period is “only potentially indefinite.” (Id. at p. 364.)
Like the Kansas scheme, California’s SVPA scheme provides for an annual review and allows the committee to petition for release. Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the committed person currently meets the definition of an SVP. (Id., subd. (a).) The results are to be filed with the trial court and served on the committed person. (Ibid.) If it is determined that the committed person no longer meets the definition of an SVP, or if the person can be released conditionally, then a petition for such discharge or conditional release is to be filed. (Id., subd. (b).)
If the Department does not certify that the committed person should be discharged or released conditionally, the person can file a petition pursuant to section 6608 for conditional release or discharge. (Id., subd. (a).) Section 6608, subdivision (i) provides that in any hearing on a petition filed under this section, the committee has the burden of proof by a preponderance of the evidence.
If at any time the Department believes a person committed as an SVP no longer qualifies as an SVP, the Department must seek judicial review of the commitment. (§ 6605, subd. (f).)
At a minimum, a current evaluation must be conducted at least once a year. (§6605, subd. (a).) A person committed as an SVP also may seek discharge or conditional release pursuant to sections 6607 and 6608. (People v. Grassini (2003) 113 Cal.App.4th 765, 781.) In addition, a committed person has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405 (Talhelm).)
The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California’s scheme assure that an individual remains committed only as long as he or she meets the statutory qualifications as an SVP. These procedural safeguards assure that commitment as an SVP is only potentially indeterminate and that constitutional requirements are satisfied. (See Hendricks, supra, 521 U.S. at pp. 364-365.)
Furthermore, some provisions of the statute challenged by Chavez are not new; they were in effect prior to the 2006 amendments. The constitutionality of the statutory scheme adopted by California for treating SVP’s has been upheld by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart). The court in Hubbart first comprehensively summarized the many provisions in the scheme, including noting that a person filing a petition for discharge or conditional release had the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court then analyzed, and rejected, a due process challenge to the statutory scheme. (Id. at pp. 1151-1167.)
As SVP commitment proceedings are civil in nature, we do not apply principles applicable to criminal proceedings. (People v. Collins (2003) 110 Cal.App.4th 340, 348 (Collins).) Because commitment as an SVP involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process. The protections afforded, however, are measured by the standard applicable to civil, not criminal proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) “Due process is a flexible concept that calls for ‘“such procedural protections as the particular situation demands.”’ [Citation.]” (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399.)
Also, as the action instituted by such a petition is civil in nature, rules of civil procedure apply to petitions for discharge or conditional release filed by a committed person pursuant to section 6608. (Collins, supra, 110 Cal.App.4th at p. 348.) The burden of proof in a civil action is on the moving party and is a preponderance of the evidence. (Ibid.; § 6608, subd. (i); Evid. Code, § 115.) Section 6608, subdivision (i) specifically provides for a civil burden of proof to apply.
Contrary to Chavez’s contention that he is deprived of expert medical advice should he seek to petition for release, section 6605, subdivision (a) provides for the appointment of medical experts to evaluate him.
Chavez also contends that he was deprived of due process because he did not have notice that he was subject to an indeterminate term. We disagree. Admittedly, the declaration of the district attorney in support of the petition indicated that a two-year term of commitment was being sought, but the petition itself filed on October 23, 2006, did not specify a term and sought commitment pursuant to section 6602. Although the petition for recommitment was filed before the November 7, 2006, passage of Proposition 83, it was filed after the passage of Senate Bill No. 1128 (2005-2006 Reg. Sess.), which, like Proposition 83, also provided for indeterminate terms of commitment. (§ 6604; Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006; Prop. 83, § 27, approved Nov. 7, 2006, eff. Nov. 8, 2006.)
Therefore, Chavez was on notice from date of the filing of the petition that an indeterminate term of commitment was provided for in the statute. Chavez is presumed to have been aware of the language of the statute. (People v. Carroll (2007) 158 Cal.App.4th 503, 512 (Carroll).) The amended provisions providing for an indeterminate term “may lawfully be applied to persons previously committed under the former law who are the subjects of subsequent extension proceedings.” (Taylor, supra, 174 Cal.App.4th at p. 933.)
Furthermore, Chavez failed to object in the trial court on the grounds that he had not been given notice of the possibility of an indeterminate term. He acknowledged that the provisions of the SVPA as amended applied to him, but argued that the People were not required to seek an indeterminate commitment. Having failed to object in the trial court on the basis of a lack of adequate notice, Chavez has forfeited this issue. (Carroll, supra, 158 Cal.App.4th at pp. 511-512.)
Chavez was committed to an indeterminate term after it was determined beyond a reasonable doubt that he qualified as an SVP. (§ 6604.) If Chavez believes that his mental condition has changed such that he no longer qualifies as an SVP and can be discharged, or released conditionally, he 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).) He also has the ability to seek discharge or conditional release by way of a petition for writ of habeas corpus. (Talhelm, supra, 85 Cal.App.4th at pp. 404-405.) His contention that his commitment for an indeterminate term violates due process fails. (Taylor, supra, 174 Cal.App.4th at pp. 928-931.)
Ex Post Facto
Chavez contends imposition of an indeterminate term renders the SVPA punitive in nature and violates constitutional prohibitions against ex post facto laws.
It is well settled that a commitment under the SVPA is civil in nature and legally does not amount to punishment. (Hubbart, supra, 19 Cal.4th at p. 1179 [SVPA does not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 (Chambless) [SVPA is not punitive and does not impose liability or punishment for criminal conduct]; People v. Carlin (2007) 150 Cal.App.4th 322, 348 (Carlin) [same].)
The analysis in this case is not dependent on the term of civil commitment, as Chavez suggests, but on the intent and effect of the statute authorizing it. (Hubbart, supra, 19 Cal.4th at p. 1171 [key is whether SVPA intended by Leg. to inflict punishment].) “[T]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” (United States v. Salerno (1987) 481 U.S. 739, 746.) Further, the potential for an indeterminate term has existed since the initial passage of the SVPA, and that possibility exists in similar statutes in other states. (See Hendricks, supra, 521 U.S. at pp. 358, 368 [potential for indefinite term, Kansas statute].)
In Hubbart our Supreme Court reiterated that the SVPA detains only those who presently are found to be suffering from a mental disorder that makes them a threat to society. The qualifying offense acts as a gatekeeper, but it is not the basis for commitment. (Hubbart, supra, 19 Cal.4th at p. 1171.) The underlying purpose and intent of the SVPA has not changed because of the page of Proposition 83. It still requires a judicial finding that the qualifying offense has been committed, and that the person suffers from “a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)
The key to determining whether ex post facto prohibitions apply is whether the statute is punitive in its intent and effect. Since a court ordinarily defers to the stated legislative intent in determining whether a statute is punitive, only very clear proof will override this intent and transform what the Legislature has denominated as a civil remedy into a criminal punishment. (Smith v. Doe (2003) 538 U.S. 84, 92.) Both the California and United States Supreme Courts already have decided that detaining sex offenders adjudged to be dangerous to society is a legitimate nonpunitive governmental objective. This means acts such as the SVPA, despite their restrictive natures, are not punitive. (Hendricks, supra, 521 U.S. at p. 363 [restraining freedom of dangerously mentally ill is historically acknowledged legitimate non punitive governmental objective]; Hubbart, supra, 19 Cal.4th at p. 1179.)
There is nothing in the legislative history that suggests Senate Bill No. 1128 or Proposition 83 were intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. Since the SVPA is not punitive, the principles of ex post facto do not apply. (Taylor, supra, 174 Cal.App.4th at p. 937.)
Double Jeopardy
Chavez claims his indeterminate commitment as an SVP is punitive in nature and thus violates the prohibition against double jeopardy. Like his ex post facto claim, Chavez’s double jeopardy claim is without merit because the SVPA is a civil commitment scheme.
A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.) As discussed ante, the SVPA, as amended by Proposition 83, remains civil, not punitive, in nature. Because Chavez’s commitment is civil in nature, it does not run afoul of the double jeopardy clause. (Taylor, supra, 174 Cal.App.4th at p. 937.)
Equal Protection
Chavez contends his commitment violates equal protection because of limited judicial review. We addressed and rejected his claims of limited review ante in our discussion of due process.
Chavez also argues that his commitment as an SVP violates equal protection because similarly situated groups are treated in an unequal manner. Specifically, Chavez points to those confined as mentally disordered offenders (MDO), Penal Code section 2960 et seq., and those committed to the Department of Mental Health by virtue of a criminal verdict of not guilty by reason of insanity as similarly situated groups whose treatment differs from that accorded those determined to be SVP’s.
Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised by Chavez. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDO’s and SVP’s are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVP’s and criminal defendants are not similarly situated, thus no equal protection violation].)
Additionally, the Ninth Circuit has held that California’s statutory scheme for treatment of SVP’s does not violate equal protection. (Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].)
We agree with the cited authority and reject Chavez’s equal protection claim. (Taylor, supra, 174 Cal.App.4th at pp. 935-936.)
Cruel and Unusual Punishment
Chavez next argues that his indeterminate commitment constitutes cruel and unusual punishment. The Eighth Amendment’s cruel and unusual punishment clause prohibits those convicted of crimes from being physically punished by barbarous methods and ensures the penal measures embody concepts of dignity, humanity and decency. (Estelle v. Gamble (1976) 429 U.S. 97, 102-103; Roe v. Crawford (8th Cir. 2008) 514 F.3d 789, 799.)
The amended SVPA scheme implicates neither of the two primary objectives of criminal punishment, deterrence and retribution. (People v. Robinson (1998) 63 Cal.App.4th 348, 351.) Constitutional safeguards against cruel and/or unusual punishment do not apply to civil commitment proceedings. (Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2; see Carlin, supra, 150 Cal.App.4th at p. 348.) As with Chavez’s ex post facto argument, his cruel and/or unusual punishment argument fails for want of a valid premise. (See People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 486-487.)
We reject Chavez’s claim because he is not a prisoner, and he is not being punished. He has been committed in a civil proceeding for treatment of a mental disorder that renders him dangerous to others. While we recognize that Chavez’s commitment results in a loss of freedom, the Eighth Amendment is inapplicable.
Single-Subject Rule
Chavez next contends that the amendments to the SVPA as a result of the passage of Proposition 83 should be declared unconstitutional because Proposition 83 violated the single-subject rule for ballot initiatives.
Whether or not Proposition 83 violates the single-subject rule (Cal. Const., art. II, § 8, subd. (d)), Chavez’s indeterminate term remains lawful under the legislative amendment to the SVPA that took effect seven weeks before Proposition 83 took effect. (Former § 6604, amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006; Prop. 83, § 27, approved Nov. 7, 2006, eff. Nov. 8, 2006.)
Furthermore, an initiative does not violate the single-subject requirement if “‘“‘all of its parts are “reasonably germane” to each other’”’” and to the general objective of the initiative. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157.) Proposition 83 addressed a number of civil and criminal statutes, all related to the punishment and control of sexual predators.
Proposition 83 (1) expanded the definition of specified sex offenses; (2) increased the penalties for certain sex offenses; (3) prohibited probation for listed sex offenses; (4) eliminated custody credits for some sex offenses; (5) extended the parole period for particular sex offenses; (6) required monitoring by global positioning satellites for registered sex offenders; (7) barred registered offenders from living within 2,000 feet of a school or park; and (8) made the changes discussed here to the SVPA. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83 (hereafter Guide).) The initiative measure was known as “The Sexual Predator Punishment and Control Act: Jessica’s Law.” (Carroll, supra, 158 Cal.App.4th at p. 509, fn. 3; Guide, text of Prop. 83, § 1, p. 127.)
The stated purpose of Proposition 83 was to “‘strengthen and improve the laws that punish and control sexual offenders.’” (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1282; Guide, text of Prop. 83, § 31, p. 138.) We think that all of the component parts of Proposition 83 bear a reasonable relationship to this purpose.
Whether an initiative encompasses changes to both civil and criminal law has never been the test. As the California Supreme Court has explained, “the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose. [Citations.]” (Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140, which combined in single measure such disparate subjects as term and budgetary limitations and pension restrictions].) In addition, the rule does not require that the collateral parts of an initiative be equivalent, for example, all civil, all criminal, all substantive, or all procedural. Nor does it mandate that the collateral parts be tied directly in application, for example, found in a single statute or applicable in a single proceeding. The only requirement is that the provisions work together to further the initiative’s stated purpose.
In Manduley v. Superior Court (2002) 27 Cal.4th 537, 573, the California Supreme Court upheld Proposition 21 against a single-subject challenge. Proposition 21 addressed a wide variety of criminal justice subjects, including gang violence, the sentencing of repeat offenders, and juvenile crime. It covered both juvenile proceedings, which are technically not criminal proceedings, and gang-related crimes committed by adults tried in adult criminal courts. The court in Manduley, however, found the unifying theme and purpose of the initiative—to address violent crime committed by juveniles and gangs—sufficiently “single” to satisfy constitutional requirements.
Propositions 21 and 140 are no less diverse in their collateral parts than is Proposition 83.
The SVP component of Proposition 83 may be civil in nature, but it is not unrelated to the criminal justice purpose stated as the goal of the initiative. The necessary reasonable and commonsense relationship is present.
First Amendment
Chavez’s last constitutional challenge to the SVPA is that it violates the First Amendment to petition the courts for redress of grievances. “The First Amendment to the United States Constitution protects the right ‘to petition the Government for a redress of grievances.’ This includes the right of access to the courts. [Citation.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 162.)
We repeat what we have stated already. Pursuant to section 6608, Chavez can petition the trial court for release without anyone’s consent. He is entitled to the assistance of counsel in these proceedings. He is not prohibited from the use of expert witnesses, including the witnesses who may have been retained pursuant to section 6605. His petition is subject to dismissal only if it is based on frivolous grounds, an extremely narrow and limited basis for dismissal. Chavez has the right to seek release under the provisions of the SVPA or to file a petition for writ of habeas corpus. Thus, his First Amendment right to petition for redress of grievances is preserved under the amended SVPA.
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, J., KANE, J.