Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 31537
SCOTLAND, P. J.
Defendant Everett Jerome Kessler was committed as a sexually violent predator (SVP) on March 23, 2005. Prior to the expiration of the two-year term of commitment, a petition seeking defendant’s recommitment as an SVP was filed on January 30, 2007. Defendant waived his right to a jury trial, the court found that defendant met the criteria for recommitment, and he was committed for an indeterminate term under the 2006 amended version of the SVP Act (Welf. & Inst. Code, § 6600 et seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.)
On appeal, defendant contends (1) his convictions for violating Penal Code section 288, subdivision (a), do not qualify as sexually violent offenses, and (2) the SVP Act as amended to provide for an indeterminate term violates his constitutional rights to due process, equal protection, and the prohibition against ex post facto laws. We reject defendant’s contentions and shall affirm the order of recommitment.
At the end of his supplemental opening brief, defendant states the amended SVP Act also violates the guarantee against double jeopardy. We need not discuss this assertion because it is tendered without analysis. (People v. Hardy (1992) 2 Cal.4th 86, 150.)
FACTS
Defendant was convicted in 1989 of two counts of lewd and lascivious acts with a child under the age of 14 years [a seven-year-old girl and a five-year-old girl] and was convicted in 1998 of one count of the same offense [a 10-year-old girl].
Four doctors who evaluated defendant, to determine whether he continued to meet the criteria for commitment as an SVP, agreed that he had prior convictions for sexually violent crimes and had the mental disorder of pedophilia and exhibitionism. Three doctors opined that, without appropriate treatment and custody, defendant was likely to sexually reoffend as a result of his diagnosed mental disorder and that he continued to meet the criteria for commitment as an SVP. The fourth doctor disagreed, opining defendant was not likely to sexually reoffend, placing him at a medium-low risk, and concluding he did not meet the criteria for SVP commitment.
DISCUSSION
I
Defendant contends that his three convictions for violating Penal Code section 288, subdivision (a), do not constitute prior convictions for a forcible sex offense and, therefore, he does not qualify as an SVP. The contention fails.
At the general election in November 2006, the voters approved Proposition 83, also known as Jessica’s Law, which amended the SVP Act in several respects. In 2006, the SVP Act was also amended by Senate Bill 1128 (Stats. 2006, ch. 337, § 55). (See Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281 (hereafter Bourquez).) These changes are applicable here since defendant’s trial occurred in January 2008, after the effective date of the legislation (Sept. 20, 2006) and operative date of the initiative measure (Nov. 8, 2006).
The 2006 amendments, in relevant part, included a reduction in the number of victims (from two or more to one or more), the elimination of the requirement of substantial sexual conduct, and an increase in the term of commitment (from two years to an indeterminate term). Currently (and at the time of defendant’s trial), the relevant law is as follows.
Section 6600, subdivision (a), defines a “sexually violent predator” as “a person who has been convicted of a sexually violent offense against one or more victims 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.”
Section 6600, subdivision (b), provides that a “‘[s]exually violent offense’ means the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288, 288a, or 289 of the Penal Code.”
Section 6600.1 states: “If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a ‘sexually violent offense’ for purposes of Section 6600.”
Defendant argues that a violation of Penal Code section 288, subdivision (a), is never a qualifying conviction because that statute is violated by a lewd act without “force,” whereas such an offense committed with “force” is a violation of Penal Code section 288, subdivision (b). In his view, section 6600.1 still requires that the offense be listed in section 6600, subdivision (b) and that all offenses in section 6600, subdivision (b) are “forcible” offenses.
Such a contention was rejected by People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558 (hereafter Johannes), which considered “whether someone convicted of specified sexual felonies against two or more children under fourteen years old involving substantial sexual conduct, the threshold required by section 6600.1, also must have committed his crimes by force, violence, duress, menace, or fear of immediate, unlawful bodily injury, as required by section 6600, subdivision (b), to be declared a sexually violent predator.” (Id. at p. 562, orig. italics.) In answering the question in the negative, Johannes concluded that the Legislature added section 6600.1 to modify section 6600, subdivision (b), to no longer require a violation of Penal Code section 288, subdivision (a) be committed by force or violence to be a qualifying conviction. (Id. at p. 569.) “[T]he Legislature must have added section 6600.1 to exempt nonforcible felony child molestation under Penal Code section 288, subdivision (a), from the general requirement under section 6600, subdivision (b) that all qualifying convictions must have been committed with force or violence.” (Id. at p. 566, orig. italics.) Johannes determined that such conclusion was “reinforced” by the language of section 6600.1 which used the word “shall” and omitted the force or violence requirement in section 6600, subdivision (b). (Id. at pp. 566-567.) Johannes also found its conclusion was supported by the legislative history. (Id. at p. 567.)
Johannes addressed a previous version of the SVP Act. Section 6600.1 provided: “If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a ‘sexually violent offense’ for purposes of Section 6600.” (Johannes, supra, 70 Cal.App.4th at p. 561, some italics omitted; some italics added.) Section 6600, subdivision (a), required the qualifying convictions must be against two or more victims and subdivision (b) separately listed the subdivisions of Penal Code section 288. (Id. at p. 560.)
Defendant did not cite Johannes and failed to respond to the People’s reliance upon that decision. (See also People v. Otto (2001) 26 Cal.4th 200, 205; People v. Whitney (2005) 129 Cal.App.4th 1287, 1293-1294.)
Penal Code section 288 is still listed in section 6600, subdivision (b). The amendment to section 6600.1 by Proposition 83 deleted the requirement that the offense against a victim under 14 years of age involve substantial sexual conduct to be a qualifying conviction. “Proposition 83 broadened the category of convictions that constitute a sexually violent offense by omitting the section 6600.1 requirement that the offending act or acts involve substantial sexual conduct.” (People v. Carlin (2007) 150 Cal.App.4th 322, 328, fn. 3 (hereafter Carlin).)
Under section 6600.1, all of defendant’s prior convictions for violating Penal Code section 288, subdivision (a), qualify as a sexually violent offense because all of them involved a victim under the age of 14 years (his victims were 5, 7, and 10 years of age). Because defendant was convicted of a qualifying offense against one or more victims, he met the first criteria of an SVP within the meaning of section 6600, subdivision (a).
II
Defendant next challenges the SVP Act as amended, arguing it violates his federal constitutional rights to due process, equal protection, and the prohibition against ex post facto laws.
These issues are pending before the California Supreme Court. Court of Appeal decisions which have considered the issues include: People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008 (S162823); People v. Johnson (2008) 162 Cal.App.4th 1263, review granted August 13, 2008 (S164388); People v. Riffey (2008) 163 Cal.App.4th 474, review granted August 20, 2008 (S164711) (hereafter Riffey); People v. Boyle (2008) 164 Cal.App.4th 1266, review granted October 1, 2008 (S166167); and recently, People v. Force (2009) 170 Cal.App.4th 797, review granted April 15, 2009 (S170831).
In rejecting defendant’s claims here, we adopt in large part the analysis from Riffey, a decision of this court.
The SVP Act, until it was amended in 2006, provided for an involuntary two-year civil commitment and the recommitment of any person who was found beyond a reasonable doubt to be an SVP. (Former §§ 6603, 6604; Stats. 1995, ch. 763, § 3, pp. 5925-5926; People v. Williams (2003) 31 Cal.4th 757, 764.) As amended in 2006 by Senate Bill No. 1128 and Proposition 83, the commitment term changed from two years to an indeterminate term. (Bourquez, supra, 156 Cal.App.4th at pp. 1280-1281.) Now, the State Department of Mental Health (Department) examines the committed person’s mental condition at least once every year and reports annually on whether the person remains an SVP. (§ 6605, subd. (a).) If the Department determines that the person no longer meets the criteria of an SVP, the director of the Department must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).) If the court finds probable cause to believe the person no longer meets the criteria of an SVP, the court must conduct a hearing and the government must prove beyond a reasonable doubt that the person remains an SVP. (§ 6605, subds. (c) & (d).) If the government meets its burden, the committed person is recommitted for an indeterminate term. (§ 6605, subd. (e).) If the government fails to meet its burden, then the person is discharged. (Ibid.)
The other mechanism for release from confinement under the amended SVP Act is a petition under section 6608, which allows the committed person to petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the Department. (§ 6608, subd. (a).) The director may also petition for conditional release under section 6607. The petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
A
Defendant first claims the indeterminate term violates his constitutional rights to due process. He argues that the two mechanisms which provide for judicial review of his indeterminate commitment are constitutionally inadequate. With respect to the first mechanism -- the Department may file a petition for unconditional discharge or conditional release (§ 6605, subd. (b)) -- defendant argues there is no judicial review of the Department’s exercise of discretion whether to file such a petition. We reject defendant’s claim because there is no basis for speculating that the Department will not fairly assess the mental condition of a committed person. Moreover, section 6608 allows such a person to petition for discharge without concurrence or recommendation of the Department.
With respect to the second mechanism set forth in section 6608 -- the committed person may file a petition for discharge or conditional release -- defendant argues the committed person is not entitled to the assistance of an expert even though the person has the burden of proof in any hearing ordered by the trial court. However, the right to the assistance of an expert is provided for in section 6605 and, thus, presents no due process problem. Section 6605 requires the Department to report annually on a committed person’s mental condition and states “[t]he person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.” (§ 6605, subd. (a).) Thus, the committed person can request appointment of an expert to review the annual determination by the Department. If the expert disagrees with the Department, the person can use the expert’s testimony in support of a petition for discharge pursuant to section 6608.
Defendant challenges the requirement that he must prove by a preponderance of the evidence that he is entitled to be released. Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694] considered an analogous statutory scheme which provided that a person committed to a mental hospital after a finding of not guilty by reason of insanity was entitled to a judicial hearing to determine his eligibility for release. (Id. at pp. 356-359 [77 L.Ed.2d at pp. 700-702].) Jones found no due process violation in requiring the committed person to prove by a preponderance of the evidence that he is no longer mentally ill or dangerous. (Id. at pp. 366-368 [77 L.Ed.2d at pp. 706-707].)
For the reasons stated above, defendant’s due process claim fails.
B
Defendant contends the 2006 amendment of the SVP Act by Proposition 83 (changing the term to an indeterminate term, reducing the number of victims from two to one, broadening the categories of qualifying convictions, and shifting the burden to the committed person to prove fitness for release) renders the SVP Act punitive in nature in violation of the ex post facto clause. We disagree.
“[T]he ex post facto clause prohibits only those laws which ‘retroactively alter the definition of crimes or increase the punishment for criminal acts.’ [Citations.] The basic purpose of the clause is to ensure fair warning of the consequences of violating penal statutes, and to reduce the potential for vindictive legislation. [Citation.] The federal and state ex post facto clauses are interpreted identically. [Citation.]” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1171 (hereafter Hubbart), orig. italics.) Hubbart rejected the contention that a previous version of the SVP Act was punitive in nature in violation of the ex post facto clause. (Id. at p. 1179.)
Defendant argues “Proposition 83 evinces a punitive purpose,” negating the intent to label the SVP Act civil. He cites the other reforms in the initiative measure, such as increasing punishment for violent and habitual sex offenders and child molesters, and precluding a registered sex offender from residing within a certain distance from a school or park, as well as other reforms. He also cites the analysis of the initiative measure by the legislative analyst’s office, including the fiscal effects.
“The categorization of a particular proceeding as civil or criminal ‘is first of all a question of statutory construction.’ [Citation.] We must initially ascertain whether the legislature meant the statute to establish ‘civil’ proceedings. If so, we ordinarily defer to the legislature’s stated intent.” (Kansas v. Hendricks (1997) 521 U.S. 346, 361 [138 L.Ed.2d 501, 514] (hereafter Hendricks).)
Noting the Legislature’s stated intent to establish civil commitment proceedings and to view and treat SVPs as sick people rather than criminals, Hubbart concluded the Legislature intended to enact a “nonpenal ‘civil commitment scheme designed to protect the public from harm.’” (Hubbart, supra, 19 Cal.4th at p. 1172.) The 2006 initiative measure did not change the Legislature’s intent. Although the intent clause included language to strengthen and improve the laws that punish sex offenders, such language was applicable to the reforms other than those to the SVP Act. Under “‘FINDINGS AND DECLARATIONS,’” the initiative measure states in relevant part as follows: “‘The People find and declare each of the following: [¶]... [¶] (h) California must also take additional steps to monitor sex offenders, to protect the public from them, and to provide adequate penalties for and safeguards against sex offenders, particularly those who prey on children. Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.’” (Historical and Statutory Notes, 47C West’s Ann. Pen. Code (2008) foll. § 209, pp. 52-53.)
Accordingly, the initiative measure was intended, in part, to strengthen and improve the laws for the continuing in-custody treatment of SVPs. Therefore, we reject defendant’s claim that Proposition 83 evinces a punitive purpose with respect to SVP commitments.
The indeterminate term of commitment set forth in the amended version of the SVP Act does not render the Act punitive in purpose or effect. “Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” (Hendricks, supra, 521 U.S. at p. 363 [138 L.Ed.2d at p. 516].)
Defendant argues the amended version of the SVP Act “changed it from a law specifically tailored to a small group of troublesome recidivist sex offenders to a general sex crime statute that simply locks sex offenders away for longer periods of time than specified in penal statutes.”
His argument ignores the requirement that the Department conduct at least annual reviews of the committed person’s mental condition. Furthermore, the committed person may petition for discharge.
Defendant’s ex post facto claim fails.
C
Defendant contends his indeterminate commitment violates his right to equal protection of laws. In his view, SVPs are similarly situated with those committed as mentally disordered offenders (MDOs) and those committed after a finding of not guilty by reason of insanity (NGI).
Other cases have rejected similar equal protection challenges. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [rejecting claim that MDOs and SVPs are similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [same]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [rejecting claim that SVPs and criminal defendants are the same]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1221-1222 [the SVP Act does not violate equal protection]; Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [same].)
“The constitutional guaranty of equal protection of the laws means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law. [Citations.] If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] The question is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155 (hereafter Buffington).)
Claiming SVPs and MDOs are similarly situated, defendant argues that an SVP and an MDO “are both committed for treatment because they represent a danger to the public because of a mental disorder.” We disagree that SVPs and MDOs are similarly situated. “[T]he MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets persons with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b)).” (Hubbart, supra, 88 Cal.App.4th at p. 1222.) “Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (Buffington, supra, 74 Cal.App.4th at p. 1163.)
Defendant points out the procedural differences in applying for release by an NGI acquittee and an SVP. While NGI acquittees have the right to a hearing on a petition for release within 180 days after initial commitment (Pen. Code, § 1026.2, subd. (d)), defendant argues an SVP does not have a right to compel a hearing on the merits and “that deprivation continues indefinitely.” Based on the procedural differences in the initial commitment, we conclude defendant has failed to demonstrate that SVPs and NGI acquittees are similarly situated. A person found not guilty by reason of insanity at the time of the offense is automatically committed. There is no evidentiary hearing to determine if the person continues to be insane when committed. (Pen. Code, § 1026.) Under the SVP Act, a person is committed only after a finding beyond a reasonable doubt that the person is an SVP. (§ 6604.)
In sum, defendant’s equal protection claim fails.
DISPOSITION
The judgment (order of recommitment) is affirmed.
We concur: SIMS , J., NICHOLSON , J.