Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. 196824
Duffy, J.
Jerry Allen Howard appeals from an order retroactively committing him to an “indeterminate term of commitment” (Welf. & Inst. Code, § 6604.1, subd. (a)) as a sexually violent predator under the Sexually Violent Predator Act (§ 6600 et seq.).
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Howard was first committed to a two-year term as a sexually violent predator on October 3, 2002, and his commitment was extended for one or more two-year terms thereafter. In 2007, while jury trial was pending to decide an extension petition filed on June 8, 2006, the People brought a motion to retroactively convert his first commitment from a two-year term of commitment to an indeterminate term pursuant to section 6604.1, subdivision (a), which provides that an indeterminate term begins on the date the court issues the “initial” order of commitment. The trial court agreed with the People and, on June 1, 2007, ordered Howard committed to an indeterminate term. Because the court imposed the indeterminate term retroactive to the first order committing Howard, it did not proceed to trial on the pending petition to extend his most recent term of commitment; instead, it stayed the petition pending this appeal.
Howard contends that the “indeterminate term of commitment” in section 6604.1, subdivision (a) may not be applied retroactively as a matter of state law. He further contends that the Sexually Violent Predator Act, as amended, is unconstitutional. He claims that his trial counsel provided ineffective assistance to the extent that counsel failed to raise the statutory and constitutional claims he presents on appeal. And he asserts that the petition to extend his commitment that is still pending in the trial court should be dismissed and that he should be released.
In line with People v. Whaley (2008) 160 Cal.App.4th 779, we conclude on statutory grounds that an indeterminate term of commitment imposed pursuant to section 6604.1 may not be imposed retroactively. Therefore, we will reverse the trial court’s order. In view of our conclusion we do not consider whether amendments to the Sexually Violent Predator Act that provide for an indeterminate term of commitment are constitutionally enforceable or whether Howard received ineffective assistance of counsel. Finally, we hold that the petition pending in the trial court to extend Howard’s commitment may proceed.
BACKGROUND
We previously set forth Howard’s background in People v. Howard (Jan. 13, 2004, H025204) [nonpub. opn.]. Because the issues before us are procedural and not fact-dependent, we reiterate the relevant facts only briefly here.
In 1987 Howard was convicted of offenses stemming from sexual intercourse with a 15-year-old girl and, on a separate occasion, attempting to have sexual intercourse with her 13-year-old sister twice and making the sister orally copulate him. He was sentenced to four years and four months in prison and was paroled in September 1990. After his release he befriended a family with a nine-year-old foster child. He rubbed the child’s breast area, grabbed her crotch, and pushed his finger against her crotch. He also touched, kissed, orally copulated, and had sexual intercourse with the family’s eight-year-old biological child. In 1991 he pleaded no contest to two counts of lewd conduct with a child under 14, one count involving the nine-year-old and the other the eight-year-old. He was sentenced to 11 years in state prison. After Howard completed his sentence, the trial court committed him to continued confinement under the Sexually Violent Predator Act. As noted, the commitment order was entered in October of 2002. Mental health professionals have diagnosed Howard as carrying a high risk of reoffending if released.
DISCUSSION
I. Retroactivity
The trial court’s order committing appellant to an indeterminate term as a sexually violent predator retroactive to the initial order of commitment was entered after the passage of Proposition 83, which the voters enacted on November 7, 2006, and which became effective the next day. As approved by the voters, section 6604 provides in pertinent part: “If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term . . . .” Section 6604.1, subdivision (a), provides: “The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section.”
For the background of the statutory scheme addressing sexually violent predators, see People v. Whaley, supra, 160 Cal.App.4th at pages 785-788.
The People maintain that these provisions support the trial court’s order. They contend that the use of the word “initial” in section 6604.1 makes the indeterminate term retroactive. They also assert that by erasing all references to subsequent extended commitments, the Legislature and the electorate demonstrated their intent to have the indeterminate term apply retroactively to the sexually violent predator’s initial commitment date, regardless of when the person was committed. We do not agree.
“It is the general rule that a statute is not retroactive in operation unless the legislative intent to the contrary is clear.” (Estate of Childs (1941) 18 Cal.2d 237, 246.) “California continues to adhere to the time-honored principle, codified by the Legislature in Civil Code section 3 and similar provisions, that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209; see Pen. Code, § 3; Code Civ. Proc., § 3.)
“ ‘In interpreting a voter initiative, we apply the same principles that govern our construction of a statute.’ ” (People v. Elliott (2005) 37 Cal.4th 453, 478.) “ ‘When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” ’ ” (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) The court’s task is to effectuate the electorate’s intent. (Ibid.)
As this court explained in People v. Whaley, supra, 160 Cal.App.4th at pages 796-803, there was no legislative intent to apply the law retroactively so as to permit a court to make a sexually violent predator’s initial two-year commitment term an indeterminate term nunc pro tunc. Accordingly, we disagree with the People’s contrary argument. Rather, the law in question operates prospectively absent a clear expression of contrary intent. “ ‘The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] . . . An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme.” (People v. Shabazz (2006) 38 Cal.4th 55, 67-68.) Thus, subdivision (a) of section 6604.1 must be construed in conjunction with subdivision (b) of section 6604.1, which requires the evaluation and commitment procedures set forth in section 6601, subdivisions (c) to (i), to be applied to “evaluations performed for purposes of extended commitments” and requires the “rights, requirements, and procedures set forth in Section 6603,” including the right to jury trial (§ 6603), to be applied to “all commitment proceedings.” Section 6604 expressly conditions the imposition of an indeterminate term on a “court or jury determin[ing] that the person is a sexually violent predator.” In sum, sections 6604 and 6604.1 provide that an indeterminate term of commitment may be ordered only following a trial in which a person is determined to be a sexually violent predator and that term begins on the date on which the court issues its order pursuant to the current version of section 6604.
Our conclusion obviates the need to reach the constitutional and jurisdictional claims raised by Howard against the trial court’s retroactive order of commitment, as well as his claim of ineffective assistance of counsel.
II. Status of the Petition to Extend Commitment
After the trial court granted the People’s motion to retroactively commit Howard for an indeterminate term, it stayed the commitment extension petition pending appellate review of its order. On appeal, Howard contends that his previous commitment term has expired and that the People’s failure to prosecute the extension petition constitutes an abandonment of it and requires its dismissal under the due process clauses of the federal and state constitutions.
We do not agree that due process requirements entitle Howard to dismissal of the extension petition and release from confinement. We note parenthetically that under state law it appears that “ ‘the only act that could divest the court of subject matter jurisdiction and trigger a dismissal [of a sexually violent predator petition] is the People’s failure to file a petition for recommitment before the prior commitment expires.’ ” (People v. Evans (2005) 132 Cal.App.4th 950, 956.) Howard does not dispute that the People filed a timely petition to extend his commitment. Moreover, the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, like the trial court in this case, stayed proceedings on a petition for commitment while the appeal was pending on the petition in that case. (Id. at p. 1151.) Returning to Howard’s constitutional claims, we reject his view that a due process violation under the state and/or federal constitutions has occurred because the dispute has become stale. It has not—all that has occurred is that the court stayed the proceedings pending the outcome of this appeal. Under the circumstances and at this juncture, we discern no untimeliness that is so unfair as to affect Howard’s due process rights.
Our ruling reversing the order of the trial court is therefore without prejudice to undertake further proceedings on the commitment extension petition or the amendment of that petition to seek an indeterminate term. We express no opinion, however, on the substantive question whether Howard must remain confined.
DISPOSITION
The trial court’s order of June 1, 2007, imposing an indeterminate term of commitment as a sexually violent predator, is reversed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.