Opinion
C054349
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. CLYDE SHERWOOD MOSS, Defendant and Appellant.
Not to be Published
Defendant Clyde Sherwood Moss appeals from an initial order of commitment as a Sexually Violent Predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)
All further section references are to the Welfare and Institutions Code unless otherwise specified.
The petition for his commitment was filed just prior to his release from prison. While the petition was pending, two measures were passed, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (SB 1128) and Proposition 83, an initiative measure. Both measures changed the term of commitment under the SVPA from a renewable two-year term to an "indefinite" term that terminates upon a judicial determination that the confined person no longer meets the definition of an SVP. In addition, Proposition 83 eliminated the confined persons right to an annual probable cause hearing on the question whether the person meets the definition of an SVP. (Former § 6605, subd. (b); Stats. 1995, ch. 763, § 3.) Defendants commitment hearing was held subsequent to the passage of Proposition 83 and he was found to be an SVP and committed to the Department of Mental Health (DMH) for an indefinite period.
On appeal, he claims an indefinite commitment constitutes an unlawful retroactive application of Proposition 83, which violates the statutory presumption against retroactive laws. He also raises several facial challenges to the statute under the First Amendment and the due process, equal protection, double jeopardy, ex post fact, and cruel and unusual punishment clauses of the United States Constitution. He also claims Proposition 83 violated the single subject rule under the California Constitution.
We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1977 and 1982, defendant was convicted of annoying and molesting a child and in 1990, he was convicted of sexually molesting four children between the ages of 12 and 16 years. (Pen. Code, §§ 288, subd. (a), 288a, subds. (b)(1), (c)(1).) He was sentenced to serve a 10-year prison term for these offenses and was due to be released from prison on September 24, 2003. Prior to that date, the Director of the Department of Mental Health (Director) requested that defendant be civilly committed as an SVP, and on August 14, 2003, the District Attorney of Tehama County filed a petition seeking his commitment under the SVPA. (§ 6600 et seq.)
On September 23, 2003, the trial court found probable cause to believe defendant fit the criteria for commitment (§ 6602) and ordered that the matter be set for trial.
Three years later, on November 28, 2006, a jury trial commenced. The district attorney relied on the expert testimony of two psychologists who had interviewed defendant and prepared evaluation reports. Both experts diagnosed defendant as suffering from paraphilia, not otherwise specified (NOS), a sexual disorder that includes pedophilia, a disorder in which the person is attracted to prepubescent children. They concluded that defendant had a diagnosable mental disorder, which predisposed him to commit sexual offenses and that he had difficulty controlling his behavior in that regard.
Both experts concluded that unless defendant was in appropriate custody and given proper treatment, he was likely to engage in sexually violent predatory criminal behavior as a result of this disorder. In reaching these conclusions, both psychologists acknowledged that defendants age (he was 61 at the time of trial) operated in his favor. However, according to Dr. Korpi, defendant posed a current risk of danger because he remained healthy and vibrant and continued to masturbate while thinking about 16-year-old Billy, one of his molestation victims. In addition, he denied committing any sexual acts against five of his victims, did not believe he had done anything wrong with Billy because they were in love, and refused to go to treatment because he "was all better" and did not need further treatment. Both experts concluded that as a result of defendants refusal to participate in the treatment program, he failed to develop the tools necessary to refrain from reoffending.
Defendant presented the expert testimony of a clinical psychologist who concluded that there was grossly insufficient evidence to diagnose defendant with paraphilia, found no indication defendant had ever tried to control his behavior and was unable to do so, and estimated that defendants risk of reoffense was somewhere between two or three percent and 10 percent.
The jury found defendant met the criteria for commitment as an SVP, and the trial court ordered that he be committed to the DMH for an indefinite period of confinement. He appeals from the judgment.
DISCUSSION
I.
Statutory Background
The SVPA was originally enacted in 1995 and took effect on January 1, 1996. (§ 6600 et seq; Stats. 1995, ch. 763, § 3.) That scheme was found to provide for civil commitment and upheld against substantive due process and ex post facto challenges. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart).)
On November 7, 2006, the voters passed Proposition 83, which, among other things, made changes to the SVPA. Because defendant challenges the constitutionality of those changes, we first summarize the pertinent provisions of the statutory scheme upheld in Hubbart, supra, and then set forth the changes made by SB1128 and Proposition 83.
A. Version Approved in Hubbart
The SVPA defined an SVP as a person who (1) has been convicted of a specified "sexually violent offense against two or more victims" and (2) "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." (Former § 6600, subd. (a).) "`A diagnosed mental disorder includes a congenital or acquired condition affecting the emotional or volitional capacity 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." (Id. at subd. (c).)
The initial commitment process for determining whether a convicted sex offender meets the definition of an SVP takes place in a series of administrative and judicial procedures. Generally, the Department of Corrections and Rehabilitation (Department of Corrections) and the Board of Prison Terms screen inmates prior to their scheduled date of release from prison. (§ 6601, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) If, after reviewing the inmates history, prison officials find the inmate is likely to be an SVP, as he or she is referred to the DMH for a full evaluation to determine whether the inmate meets the commitment criteria. (§ 6601, subd. (b).)
If the DMHs evaluators concur that the inmate has a diagnosed mental disorder so he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director must forward a request for a petition for commitment to the county in which the inmate was last convicted. (§ 6601, subds. (d), (h).) If the countys counsel concurs with the recommendation, he or she must file a petition in the superior court. (§ 6601, subd. (i).)
Once the petition is filed, a hearing is held to determine whether there is probable cause to believe the alleged SVP is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the court determines probable cause is lacking, the petition is dismissed and the inmate must report to parole. If the court finds probable cause exists, a trial is ordered to determine whether the alleged SVP is an SVP and the alleged SVP is ordered to remain in custody in a secure facility until trial is completed. (§ 6602, subd. (a).)
At trial, the state has the burden of proving "beyond a reasonable doubt" that the alleged SVP is an SVP as defined. (§ 6604.) The alleged SVP is entitled to "the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." Both parties have the right to demand a jury trial (§ 6603, subd. (a)), and a finding that the alleged SVP is an SVP must be by unanimous verdict. (Id. at subd. (f).) If the trier of fact finds the alleged SVP is not an SVP, the alleged SVP must be released at the conclusion of his or her initial sentence or unconditionally released at the end of parole, whichever is applicable. If the trier of fact determines the alleged SVP is an SVP, he or she is committed for two years to the custody of the DMH for appropriate treatment and confinement in a secure facility designated by the Director. (Former § 6604.) At the end of the two-year commitment, the SVP is discharged unless a subsequent petition for extended commitment is granted by the court after a full hearing at which the SVP is entitled to the same rights afforded at the initial commitment hearing. (Former §§ 6604, 6605.)
Additionally, the SVPA provides a number of procedures for post-commitment review, which seek "to ensure that any commitment ordered under section 6604 does not continue in the event the SVPs condition materially improves" so as to warrant conditional release or unconditional discharge of the committed person. (Hubbart, supra, 19 Cal.4th at p. 1147.) Annual mental examinations are required and the SVP may retain an expert or, if indigent, may request appointment of an expert to examine the SVP. (§ 6605, subd. (a).)
The Director is required to provide the SVP with annual written notice of the right to petition the court for conditional release under section 6608 and the SVP was entitled to an annual "show cause hearing" unless he or she "affirmatively waive[d]" the right to a hearing. The SVP had a right to be present at that hearing and to the assistance of counsel. (Former § 6605, subd. (b); Stats. 1995, ch. 763, § 3; Hubbart, supra, 19 Cal.4th at p. 1147.) If the court determined there was probable cause to believe "the committed persons 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 is required to set the matter for a full hearing (§ 6605, subd. (c)) at which the SVP is entitled to the same rights afforded at the initial commitment proceeding, including the burden and standard of proof. (Id. at subd. (d).) A verdict in favor of the SVP entitles him or her to unconditional release and discharge. A verdict against the SVP resulted in a two-year extended commitment, which ran from the date of the ruling. (§ 6605, subd. (d); Stats. 1995, ch. 763, § 3.)
The SVP may also gain release and discharge at any time, if the DMH has reason to believe the person is no longer an SVP. In such case, the DMH must seek judicial review of the commitment; if the court agrees with the recommendation, it must order that the person be unconditionally released and discharged. (§ 6605, subd. (f).)
Last, there are two procedures for seeking conditional release from confinement. The first provides that if the Director determines the persons "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 DMH must forward a report and recommendation for conditional release to the responsible prosecuting agency, the attorney for the committed person, and the committing court. (§ 6607, subd. (a).) The court must then set a hearing in accordance with section 6608. (Id. at subd. (b).)
The second procedure is set forth in section 6608, which authorizes the SVP to petition the court for conditional or unconditional release without the recommendation or concurrence of the Director. The person has the right to the assistance of counsel throughout these proceedings. (§ 6608, subd. (a).) The court must review the petition and determine whether it contains facts upon which the court could "find that the condition of the committed person had so changed that a hearing was warranted." (Ibid.) If the court determines the petition is frivolous using the standard for frivolous appeals stated in In re Marriage of Flaherty (1982) 31 Cal.3d 637 and People v. Collins (2003) 110 Cal.App.4th 340, 349-350, it must deny the petition without a hearing. In the absence of such a finding, the court must set the matter for a hearing and give notice of the hearing date to the local prosecution agency, the committed persons retained or appointed attorney, and the Director at least 30 court days before the hearing. (§ 6608, subds. (a), (b).) However, the court may not set the matter for a hearing until the person has been under commitment and care in a facility designated by the Director for at least one year from the date of the commitment order. (§ 6608, subd. (c).)
The question to be determined at a section 6608 hearing is whether the person is a danger to others in that it is likely he or she would reoffend due to his or her diagnosed mental disorder if under supervision and treatment in the community. (§ 6608, subd. (d).) The SVP bears the burden of proof by a preponderance of the evidence. (Id. at subd. (i).) If the court rules against the SVPs request for unconditional release, the court may place the person on outpatient status in accordance with the procedures specified in Penal Code section 1600 et seq. (§ 6608, subd. (g).) If the court denies the petition, the SVP must wait one year to file another such petition. (§ 6608, subd. (h).) If the court grants the petition for conditional release, it shall order the person placed with an appropriate forensic conditional release program for one year. At the end of that year, the court must hold another hearing to determine whether the person should be unconditionally released. (§ 6608, subd. (d).)
B. 2006 Amendments
On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, SB 1128, as an urgency measure that went into effect immediately. (Stats. 2006, ch. 337, § 62.) Among other things, the bill amended sections 6604 and 6604.1 to provide that commitment under the SVPA is for an indefinite period. (Stats. 2006, ch. 337, §§ 55, 56.)
Subsequently, at the November 7, 2006, General Election, the voters approved Proposition 83. As reflected in its title, "The Sexual Predator Punishment and Control Act", the Act has a punishment component and a non-punishment component, namely the changes made to the SVPA. It expanded the definition of an SVP by reducing the number of victims the person has been convicted of committing sexually violent offenses against from two to one (§ 6600, subd. (a)), expanded the definition of a conviction to include a prior conviction that resulted in a commitment to the California Youth Authority (CYA) and a prior conviction that resulted in an indeterminate sentence (id. subds. (a)(2)(H), (I)), and increased the number of predicate offenses qualifying as sexually violent offenses, including all enumerated offenses committed against a child under the age of 14 years. (§§ 6600, subd. (b), 6600.1.)
Proposition 83 also changed the term of commitment from a two-year commitment to an "indeterminate" term and deleted all references to petitions and hearings for extended commitment. (§§ 6604, 6604.1.)
Last, Proposition 83 amended section 6605, making several changes. Section 6605 now specifies that the annual report by a qualified profession on the SVPs mental condition must include consideration of whether he or she "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." (§ 6605, subd. (a).) A copy of the report must be served on the prosecuting agency involved in the initial commitment and on the SVP. (Ibid.)
The measure eliminated the SVPs right to notice of his or her right to file a petition under section 6608 and to an annual probable cause hearing. (See former § 6605, subd. (b); Stats. 1995, ch. 763, § 3.) The SVP may now have a probable cause hearing only with the authorization of the DMH after it has determined (1) the persons condition has so changed that he no longer meets the definition of an SVP or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that will adequately protect the community. (§ 6605, subd. (b).) Proposition 83 left untouched the remaining procedural protections contained in sections 6605, 6607, and 6608.
We now turn to defendants specific claims.
II.
Indeterminate Term
Defendant contends that committing him for an indeterminate term is an unlawful retroactive application of the statute because his petition for commitment was filed prior to and was pending when Proposition 83 was passed. Respondent contends that committing defendant for an indeterminate term is not a retroactive application of the statute. We agree with respondent.
A. Retroactive Application
"It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]" (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.)
In Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, this court recently held that application of the indefinite commitment provisions of Proposition 83 to pending petitions for extended commitment is a prospective application. (Id. at p. 1288.) In so holding, we presumed the measure was intended to operate prospectively because Proposition 83 is entirely silent on the question of retroactivity and turned directly to the question whether an order committing the defendant for an indeterminate term was a retroactive application. (Ibid.)
The general rule is that the "`application of a law is retroactive only if it attaches new legal consequences to, or increases a partys liability for, an event, transaction, or conduct that was completed before the laws effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citations.] . . . . [¶] In determining whether someone is an SVP, the last event necessary is the persons mental state at the time of the commitment. For pending petitions, the persons mental state will be determined after the passage of Proposition 83, at the time of commitment. . . . [and] 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. [Citation.] [Citation.]" (Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.)
Whether the pending petition is for an extended commitment as in Bourquez or for initial commitment as in the present case, the question for the trier of fact is the same, defendants current mental condition. We therefore conclude, as we did in Bourquez, that application of the indefinite term of commitment to defendant is not a retroactive application because the "indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law." (Bourquez, supra, 156 Cal.App.4th at p. 1289.)
B. Estoppel
Nevertheless, defendant contends the state should be equitably estopped from applying Proposition 83 to his case. He argues that he was "unaware he would be subjected to an indeterminate term when he failed to demand a speedy trial and instead consented to numerous continuances." We disagree.
The doctrine of equitable estoppel "may be invoked only when the party to be estopped is apprised of the facts and intends that his or her conduct will be acted upon, and the other party is ignorant of the true facts and relies upon the conduct to his or her detriment." (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 794.) Defendants claim fails because he is unable to demonstrate the state engaged in any conduct that suggested or made any representation that reasonably led him to believe any commitment he incurred would be for a two-year term. The petition was silent on the term of commitment and the district attorney received no more notice and was in no better position than defendant to foretell that the SVPA would be amended by statute or initiative measure.
C. Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment
Arguing that an indeterminate commitment to the custody of the DMH renders the SVPA punitive in nature, defendant claims the act violates the ex post facto, double jeopardy, and cruel and unusual punishment clauses of the United States Constitution. Respondent argues that these claims have no merit because the SVP component of Proposition 83 is not a civil statute and is not punitive in its purpose or intent.
We agree with respondent and reject all three claims because we find that a proceeding under the SVPA is not punitive in nature. Since that question is central to all three claims, we address it first.
In Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks) the United States Supreme Court rejected ex post facto and double jeopardy challenges to a Kansas SVPA statutory scheme, finding it was civil rather than criminal in nature. The Kansas act provided that upon determination that a person met the criteria for commitment, the person would be confined "`for control, care, and treatment until such time as the persons mental abnormality or personality disorder [had] so changed that the person [was] safe to be at large." (Id. at pp. 352-353 [at p. 509].) Confined persons had three avenues for post-commitment review and unconditional release: (1) automatic annual judicial review to determine whether continued confinement was warranted, (2) judicial review upon a petition filed by the person with the authorization of the appropriate administrative authority if it decided the persons condition had so changed that release was appropriate for release, and (3) judicial review upon a petition filed by the person at any time to determine whether the state could satisfy its burden under the initial commitment standard. (Id. at p. 353 [138 L.Ed.2d at pp. 510.)
The Supreme Court in Hendricks stated that the classification of a proceeding as civil or criminal is one of statutory construction and the court will ordinarily defer to the Legislatures stated intent. (521 U.S. at p. 361 .) The court considered the fact that the Kansas act was placed in the probate code and found nothing in the statute to suggest the Legislature had intended to create anything other than a commitment scheme to protect the public from harm. (Ibid.)
Although a civil label is not always dispositive, the party challenging the stated intent must provide "`the clearest proof that `the statutory scheme [is] so punitive either in purpose or effect as to negate [the Legislatures stated] intention. . . ." (Hendricks, supra, 521 U.S. at p. 361 .) The court found that burden had not been met because the Kansas act did not implicate the primary criminal objectives of retribution or deterrence by affixing culpability or requiring scienter or criminal intent. Commitment was based on a mental abnormality or personality disorder that prevents the person from exercising control over his behavior, which makes it unlikely the person would be deterred by the threat of confinement, and the conditions of confinement were not punitive. (Id. at pp. 362-363 [at pp. 515-515].)
The court in Hendricks rejected the claim that a potentially indefinite commitment is evidence of punitive intent. "Far from any punitive objective, the confinements duration is instead linked to the stated purpose of the commitment, namely to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged `safe to be at large, he is statutorily entitled to immediate release." (521 U.S. at pp. 363-364 .) The court also noted that commitment under the Act was "only potentially indefinite" because the maximum amount of time an individual could be confined pursuant to a single judicial proceeding at which the state had the burden of proof was one year. (Id. at p. 364 [at p. 516].)
In Hubbart, supra, 19 Cal.4th 1138, the California Supreme Court followed Hendricks using the same analysis and rejected an ex post facto challenge to the pre-Proposition 83 version of the SVPA. Finding no meaningful differences between the California and Kansas schemes, the court concluded that "[v]iewed as a whole, the SVPA is also designed to ensure that the committed person does not `remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness." (Id. at pp. 1175, 1177, quoting Hendricks, supra, 521 U.S. at p. 364 .) The court found the Legislature had "disavowed any `punitive purpose[], and declared its intent to establish `civil commitment proceedings in order to provide `treatment to mentally disordered individuals who cannot control sexually violent criminal behavior." (Hubbard, supra, 19 Cal.4th at p. 1171.) The act was placed in the Welfare and Institutions Code, it does not affix culpability or seek retribution for criminal conduct, and confined individuals are placed in the custody of the DMH for appropriate treatment in a secure facility designated by the DMH. (Id. at pp. 1175-1176.)
The court rejected the argument that commitment is equivalent to a prison sentence because the procedures under section 6608 for conditional release and subsequent unconditional discharge are too onerous. "[N]othing 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. . . . [T]he 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." (Hubbart, supra, 19 Cal.4th at p. 1176.)
To make that determination, the court examined the procedures for discharge and release, taking into consideration the two-year commitment period and the requirement of a new petition for extended commitment and a hearing where the state had the burden of proof beyond a reasonable doubt. The court also considered the SVPs right to an annual mental examination and judicial review under section 6605, which, as stated, included a probable cause hearing to determine whether continued confinement was warranted and, if so, a full hearing where the state again has the burden of proving beyond a reasonable doubt that the SVP remained mentally disordered and dangerous. These procedures were also supplemented by the procedures available under sections 6607 [report and recommendation for conditional release by the Director of Mental Health] and 6608 [petition for conditional release] that were not made available under the Kansas act upheld in Hendricks. (Hubbart, supra, 19 Cal.4th at p. 1177.)
In sum, under the Hendricks analysis, an indeterminate term of confinement will not be found punitive where there are adequate procedural safeguards to ensure that a person who no longer meets the criteria for confinement will be released. We find the SVPA as amended by Proposition 83 continues to provide such safeguards.
Most of the procedures found adequate in Hubbart remain available under the SVPA as amended by Proposition 83. An SVP is still entitled to an annual mental examination and the appointment of a retained expert upon his request (§ 6605, subd. (a)), may file a petition for conditional release or unconditional discharge upon authorization by the DMH (§ 6605, subd. (b)), which entitles the SVP to a probable cause hearing and upon a finding of probable cause, a full hearing with the same constitutional rights afforded at the initial commitment hearing. (§ 6605, subds. (c), (d).) Contrary to defendants assertion, the DMH also has an obligation to request judicial review of the persons commitment if at any time it has reason to believe he or she is no longer an SVP. (§ 6605, subd. (f).) In addition, the confined person may, on an annual basis, petition the court for conditional release or unconditional discharge under section 6608. Unless the court finds the petition is frivolous, it must set the matter for a hearing. (§ 6608, subds. (a), (b).) While the confined person has the burden of proof at this hearing, that alone does not transform the commitment into a punitive one. (Hubbart, supra, 19 Cal.4th at p. 1176.) He or she has the right to the assistance of counsel who may present the annual mental examination reports prepared by DMH evaluators or experts appointed by the court. (§ 6605, subd. (a).)
As defendant has not requested and been denied the assistance of an expert, we have no cause to consider whether an indigent confined SVP has a mandatory right to the appointment of an expert. (But see People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399 [holding that an SVP is not entitled to a court-appointed expert before the show cause hearing as a matter of right and the denial of an expert did not constitute an abuse of discretion].)
Thus, section 6608 affords the confined person the right to an annual judicial hearing if he or she presents the court with facts upon which it can find the persons condition has so changed that a hearing is warranted. (§ 6608, subd. (a).) The constitution requires no more. (See In re Swain (1949) 34 Cal.2d 300, 304 [summarily dismissing a petition for writ of habeas corpus based on vague conclusory allegations without factual support].)
Defendant argues, however, that the Legislatures stated intent in enacting the SVPA should be disregarded because Proposition 83 evinces a punitive purpose and makes changes that supersede its initial intent. According to defendant, these changes expanded the scope of the SVPA 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 the penal statutes. We disagree.
Defendant is correct in his assertion that Proposition 83 expanded the definition of an SVP in several ways. As we previously stated, it reduced the number of victims an SVP must be convicted of committing a sexually violent offense against to "one or more" (§ 6600, subd. (a)(1)), expanded the definition of a conviction to include one resulting in a commitment to the CYA or an indeterminate sentence (§ 6600, subd. (a)(2)(H), (I)), and expanded the definition of a sexually violent offense by increasing the number of specified predicate offenses. (§ 6600, subd. (b).)
Nevertheless, we find no punitive purpose in these SVPA amendments. Looking first to its stated intent, no such purpose appears from the text of Proposition 83, which is entitled "The Sexual Predator Punishment and Control Act: Jessicas Law." (Voter Information Pamp., supra, text of Prop. 83, p. 127.) As reflected in its title, the initiative contained punitive and nonpunitive "control" provisions, namely amendments to the SVPA. The measure contains the following pertinent findings, "[s]ex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon" (id. at § 2(b), p. 127) and "California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." (Id. § 2(k), at p. 127.)
In short, the voters stated their intent to punish and control sexually violent offenders (Voter Information Pamp., supra, § 31, p. 138) in order to help Californians better protect themselves, their children, and their communities, and to reduce the costs of unwarranted judicial proceedings. (Id. at § 2(f), p. 127.) To that end, the measure sought to strengthen and improve the laws that punish sexual offenders as well as the laws for the "commitment and control of sexually violent predators." (Id. at § 2(h), p. 127.)
The expansion of the definition of an SVP is not inconsistent with the nonpunitive control purpose of the initiative and does not transform the SVPA into a general sex crime statute. The definition of an SVP remains limited to persons who have committed a sexually violent offense and requires that the person have "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).) Defendant offers no evidence to support his assertion that this newly expanded definition extends beyond the targeted group of mentally disordered recidivist sex offenders. We therefore reject his claim that the changes made by Proposition 83 are punitive.
Having found that a commitment proceeding under the SVPA is not a criminal proceeding and an indefinite civil commitment is not punishment, we necessarily reject defendants constitutional claims under the double jeopardy and ex post facto clauses (Hendricks, supra, 521 U.S. at pp. 369-371 [138 L.Ed.2d at pp. 519-521]), as well as the cruel and unusual punishment clause. (U.S. Const, 8th & 14th Amendments; Cal. Const., art. I, § 17; People v. Feagley (1975) 14 Cal.3d 338, 359.) Furthermore, application of Proposition 83 to defendant does not implicate ex post facto concerns for the additional reason that, as found in Part II, it has no retroactive effect. (Hendricks, supra, 521 U.S. at p. 371 [at p. 520]; Collins v. Youngblood (1990) 497 U.S. 37, 43 [111 L.Ed.2d 30, 39].)
D. Due Process
Defendant contends the trial courts order committing him to the custody of the DMH for an indeterminate term pursuant to section 6604 violated his federal constitutional right to procedural due process and denied him adequate notice of the potential penalties. We address these claims separately.
1. Procedural Due Process
Defendant argues that commitment of an SVP to an indeterminate term under section 6604 fails to satisfy due process standards because the statutory scheme authorizes conditional release or unconditional discharge only upon the recommendation or concurrence of the DMH or upon proof by the SVP by a preponderance of the evidence that the SVP no longer meets the criteria for civil commitment.
Respondent contends the due process clause does not require that a civil commitment be finite and argues that the mechanisms for administrative and judicial review are adequate to ensure that commitment does not continue in the event the SVPs condition improves to the point that he or she no longer meets the commitment criteria. We agree with respondent.
Consistent with substantive due process, the state may civilly commit a person who, as a result of mental illness, is unable to control his or her behavior and who poses a danger to the public health and safety. (Hendricks, supra, 521 U.S. at p. 357 ; Kansas v. Crane (2002) 534 U.S. 407, 412-413 [151 L.Ed.2d 856, 862] [clarifying that there must be "a special and serious lack of ability to control behavior"].) The state may not confine a person who is no longer mentally ill and dangerous. (Foucha v. Louisiana (1992) 504 U.S. 71, 83 [118 L.Ed.2d 437, 450]; OConner v. Donaldson (1975) 422 U.S. 563, 575-576 [45 L.Ed.2d 396, 407].)
Therefore, as long as proper procedures and evidentiary standards are followed, a civil commitment for an indefinite period of time is not per se unconstitutional under the due process clause. (Jones v. United States (1983) 463 U.S. 354, 370 [77 L.Ed.2d 694, 709] (Jones) [a person found not guilty by reason of insanity may be confined until his or her sanity is restored or he or she is no longer dangerous]); Addington v. Texas (1979) 441 U.S. 418, 421, 425 [60 L.Ed.2d 323, 328, 330] (Addington) [clear and convincing evidence is the standard of proof required in a civil commitment proceeding to confine an individual for an indefinite period]; see also Hendricks, supra, 521 U.S. at p. 357 .)
The statutory definition of an SVP, which requires proof of a current mental disorder that makes the person a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal conduct, satisfies substantive due process (see Hubbart, supra, 19 Cal.4th at pp. 1151-1167) and defendant does not contend otherwise.
Moreover, as we found in Part IIC, the procedures afforded by the SVPA are adequate to ensure that defendant will be released when he no longer meets the definition of an SVP. Due process requires no more. (Jones, supra, 463 U.S. 354 .)
We turn to Jones, supra, 463 U.S. 354 .) for guidance and find it dispositive. There the Supreme Court upheld a District of Columbia statute, which provided for the indefinite commitment of a defendant acquitted of a criminal offense by reason of insanity (NGI). Release was authorized only at a judicial hearing within 50 days of commitment where the acquittee had the burden of proving by a preponderance of the evidence that he was no longer mentally ill or dangerous (463 U.S. at p. 357, fn. 3 ), or if that failed, upon certification by the hospital chief of services. In addition, the acquittee was entitled to a judicial hearing every six months where he or she again had the burden of proving that he or she no longer was insane or dangerous. (Id. at p. 358 .) The statutory scheme also provided an independent procedure for civil commitment, in which the person to be committed had the right to a jury trial, and the government had the burden of proof by clear and convincing evidence. Once committed, the person could gain release at any time upon certification of recovery by the hospital chief of service, or the person could request a judicial hearing after the first 90 days, and thereafter at six-month intervals, by proving by a preponderance of the evidence that he was no longer mentally ill or dangerous. (Id. at pp. 359-369 [77 L.Ed.2d at pp. 702-708].)
Under the District of Columbia statute, to successfully raise an insanity defense, the defendant had to "`affirmatively establish[ his insanity] by a preponderance of the evidence." (Jones, supra, 463 U.S. at p. 356 .)
The petitioner in Jones contended his trial was not a constitutionally adequate hearing to justify an indefinite civil commitment. According to the petitioner, he must be released after one year, the maximum period he could have served had he been convicted, or recommitted pursuant to the independent civil-commitment standards and procedures. (Jones, supra, 463 U.S. at p. 360 .) The high court rejected this claim, concluding that an insanity acquittal "is a sufficient foundation for commitment of an . . . acquittee for the purposes of treatment and the protection of society" because a finding beyond a reasonable doubt that the person committed a criminal act indicates dangerousness (id. at p. 366 ) and an insanity acquittal supports an inference of continuing mental illness. (Ibid.)
The court also rejected the petitioners claim that an indefinite commitment is unconstitutional when proof of insanity is based upon a preponderance of the evidence standard of proof. (Jones, supra, 463 U.S. at p. 367 .) The court found the differences between civil-commitment candidates and insanity acquittees justify differing standards of proof. Civil-commitment candidates require proof by clear and convincing evidence to reduce the risk that "members of the public could be confined on the basis of `some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable." (Ibid.) That risk of error is diminished where an insanity acquittee advances an insanity defense and proves his own mental illness. More importantly, the proof the acquittee committed a criminal act as a result of mental illness eliminates the risk he is being committed for mere "`idiosyncratic behavior." (Id. at p. 367-368 .)
Last, the court held that the government could properly confine the acquittee in a mental hospital for a period longer than his sentence would have been had he been convicted because the purpose of the commitment was not to punish but to treat the acquittee and protect both the public and the acquittee. (Jones, supra, 463 U.S. at p. 368 .) The court reasoned that "because it is impossible to predict how long it will take for any given individual to recover — or indeed whether he ever will recover — Congress has chosen . . . to leave the length of commitment indeterminate, subject to periodic review of the patients suitability for release." (Ibid.)
Like an NGI acquittal where there is a finding beyond a reasonable doubt that the acquittee committed a criminal act, the initial commitment of an SVP follows immediately upon his or her release from prison for a felony conviction. (§ 6601, subd. (a)(1).) However, the SVPA also provides the alleged SVP with a separate commitment hearing where the People have the burden of proving beyond a reasonable doubt that the person meets civil commitment criteria. (§ 6604.)
And, just as an NGI acquittal supports an inference of continuing mental illness and dangerousness (Jones, supra, 463 U.S. at pp. 364, 366 [77 L.Ed.2d at pp. 705-706]), a true finding the person is an SVP (§ 6600, subd. (a)(1); Hubbart, supra, 19 Cal.4th at p. 1162) supports the same inference. In addition, as we found in Part III, the post-commitment review procedures are adequate to ensure that any commitment ordered under section 6604 does not continue if the SVPs condition materially improves to the point where he or she no longer meets the criteria for commitment. Indeed, these procedures provide greater protection than those afforded by the scheme upheld in Jones, which were limited to judicial review upon administrative certification or judicial review where the acquittee had the burden of proof. By contrast, the SVPA requires a separate initial commitment hearing where the People have the burden of proof (§ 6604) and also includes procedures for conditional release to a less restrictive alternative. (§§ 6607, subd. (a), 6608, subd. (a).)
Defendant contends Jones is inapplicable because the District of Columbia statute granted the acquittee a right to a hearing within 50 days of his initial commitment. We disagree. An NGI acquittal may be based on a wide range of mental disorders that may be temporary or amenable to treatment, or subject to remission and/or cure. In addition, unlike an SVP, an NGI acquittal is predicated on the defendants mental state at the time of the crime. As a result, the acquittee may not be suffering from a mental abnormality by the time he is admitted to a mental hospital for treatment. (See Foucha v. Louisiana, supra, 504 U.S. at pp. 74-75 [118 L.Ed.2d at pp. 444-445] [at the time defendant committed the crime, he was suffering from a temporary drug induced psychosis, from which he had recovered at the time of commitment].) The 50-day hearing seeks to ensure that the acquittee is presently suffering from a mental abnormality and is currently dangerous. An SVPA commitment hearing under section 6603 serves that same purpose. (Hubbart, supra, 19 Cal.4th at p. 1162.)
Defendant argues, however, that the hearing under section 6608 is constitutionally inadequate because he has no right to a hearing on the merits to determine whether his commitment should be continued and if the hearing is granted he has no right to the assistance of an expert. We are not persuaded.
While it is true defendant is no longer entitled to an annual probable cause hearing as a matter of right, he is entitled to annual judicial review unless the court finds his petition is frivolous (§ 6608, subd. (a) [the petition must allege facts sufficient to find the committed person has so changed that a hearing is warranted]) and we see no difference between that determination and the summary denial of a petition for writ of habeas corpus based on vague conclusory allegations without factual support. (See In re Swain, supra, 34 Cal.2d at p. 304.)
With respect to the defendants right to the assistance of an expert, we read section 6608 in harmony with the entire act. (People v. Cottle (2006) 39 Cal.4th 246, 254 ["`We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole"].) Although section 6608 does not provide for the assistance of an expert, as we have stated, defendant is entitled to an annual examination of his mental condition under section 6605 and the resulting report must address the matters at issue in a section 6608 hearing. As part of that right, he may also retain, or if he or she is indigent the court may appoint a qualified expert to examine the SVP and who has access to all of defendants records. (§ 6605, subd. (a).) Thus, for all practical purposes, defendant will have an annual report on his mental health upon which he may base his petition for discharge or conditional release.
2. Notice
Defendant contends he was denied due process because the petition failed to give him adequate notice that he could be given an indeterminate term rather than a two-year term. He bases this claim on the fact the petition was filed in August 2003, prior to the adoption of Proposition 83, and therefore only gave him notice of a possible two-year commitment. Respondent contends this claim has no merit because prior to trial, defendant had actual notice that civil commitment was for an indeterminate term. We find defendant had adequate notice.
The legislative process provides all the notice that is due, and all citizens are presumed to know the requirements of the law and to be able to act in conformity with it. (Atkins v. Parker (1985) 472 U.S. 115, 130 [86 L.Ed.2d 81, 93]; Johnston v. Iowa Dept. of Human Services (8th Cir. 1991) 932 F.2d 1247, 1249-1250.) Moreover, when one is represented by counsel, he is presumed to have been on notice of a change in the law. (Borden v. Division of Medical Quality (1994) 30 Cal.App.4th 874, 884.)
Federal and state courts have held in a variety of contexts that principles of due process do not require personal notice of changes to statutory enactments or their effect on a particular case. (See People v. Cargill (1995) 38 Cal.App.4th 1551, 1555 [Three Strikes law signed into law as urgency legislation seven and one-half hours before defendant committed his offense]; Borden v. Div. of Medical Quality, supra, 30 Cal.App.4th at p. 884 [physician disciplinary statute amended after the accusation was filed but before the hearing]; Johnston v. Iowa Dept. of Human Services, supra, 932 F.2d at pp. 1249-1250 [overpayment due from unemployed parent receiving public assistance when statutory and regulatory scheme was amended to require parent to register for work with the state public employment office].)
Defendant was given adequate notice that he would be subject to a civil commitment for an indeterminate term under SB 1128, which became effective September 20, 2006 (Stats. 2006, ch. 337, § 55) and under Proposition 83, which became effective November 8, 2006. His commitment hearing was held on November 28, 2006, two months after SB 1128 went into effect, and he was represented by counsel throughout the proceedings. He is therefore presumed to have been aware of the new law. Indeed, in another portion of his opening brief, defendant states that Proposition 83 qualified for the November 2006 ballot on April 18, 2006, and "it was common knowledge well before August 2006 there was a likelihood that any trial occurring after the November 8, 2006, election could be subject to the requirements of Proposition 83." Accordingly, we find the legislative and initiative process gave him adequate notice of the indeterminate term of commitment.
E. Equal Protection
Defendant argues that imposition of an indeterminate term violates the equal protection clause of the Fourteenth Amendment because similarly situated persons committed under the Mentally Disordered Offender Act (MDOA) (Pen. Code, § 2960 et. seq.) and persons committed because they are found not guilty of a crime by reason of insanity are not similarly subject to an indeterminate term. Defendant also claims it is a violation of equal protection to require him to bear the burden of proof in a section 6608 hearing.
We consider only the claim that the imposition of an indeterminate term on defendant violated equal protection, because the hearing in this case was held under section 6604 where the jury must be instructed that the People, not defendant, had the burden of proof. Thus, defendant lacks standing to challenge the statute on the ground it violated equal protection in allocating the burden of proof to him. (See, e.g., People v. Garcia (1999) 21 Cal.4th 1, 11-12 [defendant lacked standing to assert the equal protection claims of hypothetical felons who may be treated more harshly].)
While equal protection requires that persons similarly situated for purposes of the law challenged be similarly treated under the law (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155), "[t]he state `may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of power. (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172 [167 Cal.Rptr. 854, 616 P.2d 836].)" (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217.)
The first question in an equal protection analysis is whether the groups being compared are similarly situated, because if they are not similarly situated, the challenge fails at the threshold. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) "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.]" (Ibid.)
Defendants equal protection argument fails on the threshold question because persons committed under the SVPA are not similarly situated to persons committed under the MDOA or persons found not guilty by reason of insanity for purposes of the length of their commitment. Two factors lead us to this determination—the likelihood of reoffense and the resistance to treatment in the SVP population.
As we have indicated ante, the findings and declarations accompanying Proposition 83 state that sex offenders have very high recidivism rates, they are the least likely to be cured and the most likely to reoffend, and have "a dramatically higher recidivism rate for their crimes than any other type of violent felon." (Voter Infor. Pamp., supra, text of Prop. 83, p. 127.)
By contrast, the MDOA, which provides that a period of commitment or recommitment is for one year, is targeted at prisoners who have a treatable, severe mental disorder that was a cause of, or that aggravated, the crime for which they were incarcerated. (Pen. Code, §§ 2960, 2972, subd. (c).) It provides a mechanism by which such persons may be committed for purposes of treatment if their mental disorders are not in remission or cannot be kept in remission at the time of their parole. (Pen. Code, § 2960.)
In considering the issue of treatment, which is closely related to the length of commitment, this court has concluded that persons under the MDOA and SVPA are not similarly situated. (People v. Buffington, supra, 74 Cal.App.4th at pp. 1162-1163.) There, we stated:
"The MDO Act considers, at least in part, past evaluation and treatment, while the SVPA considers only the likelihood of future sexually violent criminal behavior without commitment. (Pen. Code, § 2962; Welf. & Inst. Code, § 6600.) Prisoners who suffer from conditions that may with treatment be kept in remission are the target of the MDO Act, whereas the SVPA covers prisoners whose conditions pose a risk of future sexually violent criminal behavior and who may never be completely treated. (Pen. Code, § 2962; Welf. & Inst. Code, § 6606, subd. (b).) 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." ( Ibid.)
Nor are persons found NGI similarly situated to SVPs for purposes of the length of their commitment. The NGI scheme applies to persons who have committed a broad range of crimes, both violent and non-violent. By contrast, the SVPA is addressed to sexual predators who have committed violent sexual crimes, and who are likely to commit future sexual crimes because of their mental disorder.
The initial term of commitment of an NGI is related to the maximum term of imprisonment that could have been imposed if the person had been convicted. (Pen. Code, § 1026.5, subd. (a)(1).) An NGI defendant may be held beyond the statutory maximum term of commitment if a jury finds the defendant meets the requirements for an extended commitment, i.e., represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. (Pen. Code, § 1026.5, subd. (b)(8).) The period of extended commitment is for two years. (Pen. Code, § 1026.5, subd. (b)(8).)
A finding of NGI means that "at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong." (People v. Hernandez (2000) 22 Cal.4th 512, 520.) As we have previously indicated, the very nature of a finding of insanity means that the defendants state of insanity could be temporary in nature. In fact, the NGI procedures take into account the possibility that a defendant may regain sanity before any commitment. (Pen. Code, § 1026, subd. (b).) The SVPA, on the other hand, addresses those defendants who are the least likely to be cured of their mental disorders and may never be completely cured.
Accordingly, for purposes of the length of commitment, SVPs are not similarly situated to MDOs or persons found NGI, and therefore defendants equal protection argument fails.
III
Right to Petition
Defendant contends the imposition of an indeterminate term of commitment violates his First Amendment right to petition because the SVPA does not provide for meaningful access to the courts. We conclude he has no standing to raise this argument because he has suffered no denial of access to the courts.
Again, as we have explained, a person committed to an indeterminate term is entitled by statute to an annual examination of his or her mental condition, for which purpose an indigent SVP may retain a qualified expert to examine him or her. (§ 6605, subd. (a).) The SVPA provides two avenues for an SVP to obtain a hearing for the purpose of being conditionally released or discharged. One of these is directly tied to the annual mental examination.
Defendant does not tender any argument as to whether the right to have an expert appointed is absolute or discretionary with the court, and we do not consider the issue.
First, if as a result of the annual examination the DMH makes a determination that the SVP is no longer an SVP or that a less restrictive alternative would be advisable, the Director must authorize a petition to the court for conditional release or an unconditional discharge. (§ 6605, subd. (b).) The court must then order a show cause hearing for consideration of the petition. (§ 6605, subd. (b).) The show cause hearing may result in a hearing for which the person has the right to all constitutional protections that were afforded at the initial commitment proceeding and for which the state has the burden of proof beyond a reasonable doubt. (§ 6605, subd. (d).)
Second, an SVP may petition annually and without the DMHs recommendation for a discharge or conditional release. (§ 6608, subds. (a) & (h).) The court may deny such petition without a hearing if it finds the petition is based on frivolous grounds. (§ 6608, subd. (a).) The SVP is entitled to the assistance of counsel to petition the court. (S 6608, subd. (a).) If the petition is not denied by the court on the ground it is frivolous, the court holds a hearing to determine if the person would be a danger to others if placed in a conditional release program. (§ 6608, subd. (d).) If the SVP is placed in a conditional release program, the court holds another hearing after the person has completed at least one year in the program to determine if the person may be unconditionally released. (§ 6608, subd. (d).)
Defendant contends this scheme violates his First Amendment right to petition in two respects. First, a detainee may file a petition for release only with the concurrence of the Director. Second, the provisions of section 6608 that allow a petition without the concurrence of the DMH are not meaningful because the courts ability to summarily deny the petition if it concludes the petition is frivolous, combined with the burden of proof being on the detainee, result in a denial of the opportunity of a hearing on the merits.
Whether the challenge is to the state or the federal Constitution, defendant must demonstrate his standing to sue. (Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 94; County Court of Ulster County v. Allen (1979) 442 U.S. 140, 154-155 [60 L.Ed.2d 777, 790].) This means he must show there has been an actual injury to his legally protected rights. (Tennison v. Paulus (9th Cir. 1998) 144 F.3d 1285, 1287; Andal v. City of Stockton, supra, at p. 94 [party attacking constitutionality of statute must show some injury, actual or threatened].) The doctrine of standing addresses the question whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy . . . ." (Sierra Club v. Morton (1972) 405 U.S. 727, 731-732 [31 L.Ed.2d 636, 641].)
Thus, a party may not bring a facial challenge against legislation unless that partys constitutional rights have been violated, or unless the party can demonstrate that the legislation is invalid under any set of circumstances. (People v. Hsu (2000) 82 Cal.App.4th 976, 982; U.S. v. Salerno (1987) 481 U.S. 739, 745 [95 L.Ed.2d 697, 707].) Also, a "plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." (Warth v. Seldin (1975) 422 U.S. 490, 499, 45 L.Ed.2d 343, 355].) The reasons for this rule are to prevent unnecessary pronouncements and premature statutory interpretations "`in areas where their constitutional application might be cloudy," and to assure that issues before the court "will be concrete and sharply presented." (Secretary of Maryland v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947, 955 [81 L.Ed.2d 786, 794-795].)
Defendant raises a facial challenge to the legislation but has not yet been denied the Directors concurrence in filing a petition under section 6605 nor has he filed a petition for a hearing under section 6608. The limitation that a party must assert his own legal rights is relaxed when a party brings a facial challenge implicating the free speech aspect of the First Amendment. (Tennison v. Paulus, supra, 144 F.3d at p. 1287; People v. Hsu, supra, 82 Cal.App.4th 976, 982.) This is because "when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by societys interest in having the statute challenged." (Secretary of Maryland v. Joseph H. Munson Co., Inc., supra, 467 U.S. at p. 956 .)
Here the basis for defendants First Amendment challenge is the right to petition the government for redress of grievances rather than the right of free speech. While the relaxed standing rules for First Amendment facial challenges have been applied in the free speech area, the rationale being that the relaxed rules are necessary to prevent a chilling of free speech. We are not aware of such relaxed standing requirements being applied in right to petition cases, and defendant has cited no such case authority. We conclude he has no standing to challenge the SVPA.
IV.
Single Subject Rule
Defendant also contends Proposition 83 violates the single subject rule governing ballot initiatives and therefore his commitment was improper and he must be released. The California Constitution provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." (Cal. Const., art. II, § 8, subd. (d).) Defendant argues Proposition 83 violated the single subject rule because it "combined too many disparate topics" without a common purpose under "a broad and amorphous theme of dealing with sex offenders" and the most serious flaw "is the inclusion of provisions modifying civil, criminal, and regulatory matters."
We decline to resolve this question. The only portion of Proposition 83 currently applicable to defendant is the indeterminate commitment term. As discussed ante, SB 1128 amended the SVPA by increasing the length of a commitment from two years to an indeterminate term. (Stats. 2006, ch. 337, § 55.) The bill was signed into law on September 20, 2006, and went into effect immediately as an urgency measure. (Legis. Counsels Dig., Sen. Bill No. 1128 (2006 Reg. Sess.) Because defendants hearing was held subsequent to the operative date of SB 1128, he would be subject to an indeterminate term of commitment even in the absence of Proposition 83. His claim therefore fails.
V.
Ineffective Assistance of Counsel
Last, defendant contends he was denied the effective assistance of counsel because counsel failed to demand that trial commence prior to the passage of Proposition 83 and because counsel failed to raise any of the legal objections he now raises on appeal.
Respondent contends these claims have no merit because defendant has failed to show as to either basis that counsel acted below the standard of prevailing professional norms. We find defendants claim fails under Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
Whether defendants right to counsel is viewed as constitutional or statutory, we apply the standard under Strickland, supra, 466 U.S. 668 for determining whether a defendant in a civil commitment proceeding was denied the effective assistance of counsel. (People v. Williams (1999) 77 Cal.App.4th 436, 462.)
To establish a violation under that standard, defendant must establish "(1) counsels representation was deficient, i.e. it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e. there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant." (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.) A judgment may be reversed on direct appeal on this ground only if "the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
A. The Date of Trial
The District Attorney of Tehama County filed the petition for commitment on August 14, 2003. On September 23, 2003, the court found probable cause to believe defendant fit the criteria for commitment under the SVPA (§ 6602) and ordered that the matter be set for trial. Defense counsel either requested or failed to object to numerous requests for continuance of the trial. The record does not reflect the reasons for these requests. It does reflect, however, that on January 31, 2005, the court relieved court-appointed counsel "due to the expiration of the services contract" and appointed new counsel who represented defendant from that time through trial.
Some 21 months later, on September 20, 2006, the Governor signed into law SB 1128, which went into effect immediately. (Cal. Const., art. IV, § 8, subd. (c)(3); Stats. 2006, ch. 337, § 55.) Proposition 83 became effective November 8, 2006. (Cal. Const., art. II, § 10, subd. (a); Voters Infor. Pamp., supra, text of Prop. 83, § 27, p. 137.) Jury trial commenced on November 28, 2006, after which, the court ordered that he be committed to the custody of the DMH for an indefinite period.
Initially, we note that defendants claim that counsel was ineffective for not ensuring that the trial occurred before the November 7, 2006, election misses the mark because, as explained, the provision for an indefinite commitment became operative on September 20, 2006, the effective date of SB 1128. Thus, the question is whether counsel was ineffective for failing to ensure that the trial took place prior to that date.
Defendant argues there could be no rational explanation for counsels failure to secure a trial date on the 2003 petition prior to the 2006 amendment of the SVPA. We disagree.
As stated, the record does not reflect counsels reasons for allowing the matter to be continued prior to March 2, 2006. Nevertheless, we note that SB 1128 was not amended to require an indeterminate commitment until March 2, 2006, and defendant acknowledges that Proposition 83 did not qualify for the November 2006 ballot until April 18, 2006. As of March 2, 2006, trial was set to begin on May 23, 2006. Thus, prior to that date, counsel had no reason to believe a continuance of trial would subject defendant to an indeterminate term of commitment.
On May 15, 2006, counsel moved to vacate the trial date on the ground he would be unavailable because he was scheduled for jury trial in another case. Trial was therefore reset for August 30, 2006.
On August 17, 2006, counsel again moved to continue the trial date, which was vacated on August 21st, and reset for November 28, 2006. In support of his motion, counsel declared that he had received the updated mental evaluations and required time to give his medical experts the opportunity to review them. In addition, he received information from the district attorneys chief investigator relating to one of the experts criminal background. Counsel therefore declared that to properly represent defendant, it was "essential" that defendant be given an opportunity to investigate the circumstances surrounding the experts arrest and subsequent conviction for grand theft. He further declared that he had procured the service of two experts who would be available to testify during the last portion of October and the beginning of November 2006.
Again, as stated, the issue at the commitment hearing was and is defendants current mental condition. (§ 6600, subd. (a)(1); Hubbart, supra, 19 Cal.4th at p. 1145.) Given the passage of three years from the filing of the petition, current mental evaluations were performed to ensure their relevancy. (See § 6603, subd. (a)(1).) As a result, as of August 17, 2006, counsel was not prepared to proceed to trial and his witnesses were not available before the later half of October. Moreover, as of August 17, 2006, while not a surprise, it was not certain the Legislature would pass SB 1128 or that the Governor would sign it, and if so when. On the other hand, if counsel had rushed to trial in an attempt to "beat the clock," defendant would in all likelihood be claiming that counsel was ineffective for having failed to request a continuance in order to adequately prepare. Because counsels reasons for failing to secure a trial date prior to the enactment of SB 1128 were rational, namely trial preparation and expert witness availability, we reject defendants claim.
B. Legal Challenges to Indeterminate Commitment
Second, defendant contends he was denied the effective assistance of counsel because counsel failed to object to imposition of an indeterminate term of commitment on the statutory or constitutional grounds raised in this appeal and argues there could be no rational explanation for these omissions.
This claim fails because defendant was allowed to present all of his claims on appeal and we have rejected them all. As a result, he cannot establish the prejudice prong under Strickland.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
NICHOLSON, J.