Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MH0970062003
SIMS, Acting P. J.Defendant Troy Mitchell Naylor appeals from an order of the Yuba County Superior Court committing him to an indeterminate term of confinement with the State Department of Mental Health (DMH) following a jury’s finding that he was a sexually violent predator (SVP).
On appeal, defendant contends that his indeterminate commitment violates several provisions of the federal Constitution. Disagreeing, we reject each claim.
Defendant recognizes that each of his constitutional issues has been rejected by this court in People v. Riffey (2008) 163 Cal.App.4th 474, review granted August 20, 2008 (S164711). He is raising the issues to preserve them for higher review.
Because defendant challenges only his term of commitment, we need not set forth the factual basis for the jury’s finding that he is an SVP.
In 2006, the Sexually Violent Predators Act (SVPA) was revised to change, inter alia, the commitment period of SVPs from two years to an indeterminate term. (§ 6604; Stats. 2006, ch. 337, § 1, eff. Sept. 20, 2006; Prop. 83, eff. Nov. 8, 2006.) In October 2007, a jury found defendant was an SVP and the court committed him to the DMH for an indefinite term.
Welfare and Institutions Code section 6600 et seq. Undesignated section references are to the Welfare and Institutions Code.
I
Defendant contends the new revisions to sections 6605 and 6608 of the SVPA violate principles of constitutional due process. We disagree, concluding that the procedure presently in place adequately protects all of defendant’s due process concerns.
Pursuant to section 6605, subdivision (a), the DMH must conduct an annual review of an SVP to determine whether the defendant is still an SVP and whether the defendant’s dangerousness is such that he or she may be released either unconditionally or with appropriate conditions. If the DMH finds that the defendant is no longer such a danger, it must authorize the defendant to file with the court a petition for his or her release. (§ 6605, subd. (b).) If the court receives such a petition from the defendant, it must set the matter for a probable cause hearing. (§ 6605, subd. (c).) If the court concludes at the probable cause hearing that there is reason to believe the defendant is no longer a danger, it must set the matter for trial. (Ibid.) At the trial, the state bears the burden of proving beyond a reasonable doubt that the defendant is a danger. (§ 6605, subd. (d).) If the trier of fact decides adversely to the defendant and the DMH still believes the person is no longer an SVP, the DMH must seek judicial review of the decision. (§ 6605, subd. (f).)
However, if the DMH finds that the defendant does not qualify for an authorized petition under section 6605, the defendant is still entitled, with the assistance of counsel, to file a petition for unconditional or conditional release pursuant to section 6608, subdivision (a). If the court finds the defendant’s petition is frivolous or that it fails to allege facts sufficient to warrant a hearing, the court will summarily deny the petition; if the court finds otherwise, it must set the matter for a hearing. (§ 6608, subd. (a).) At the hearing, the defendant bears the burden of proving by a preponderance of the evidence that he or she is suitable for release. (§ 6608, subds. (a), (i).)
In defendant’s view, section 6605 violates due process because it vests the DMH with absolute discretion to determine whether a petition should be filed, which in turn provides the government a means for preventing a hearing at which the government bears the burden of proving beyond a reasonable doubt that the defendant is dangerous.
As to section 6605, we have no reason to believe the DMH would not authorize the filing of a petition for the release of a defendant whom it believes is no longer dangerous simply because to do so would require the government to bear the burden of proving a defendant’s dangerousness beyond a reasonable doubt. Indeed, such a proposition flies directly in the face of the presumption that official duty will be regularly performed. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].) Thus, defendant’s argument reduces to mere speculation. Additionally, a defendant’s due process rights are protected, because if the DMH does not authorize the filing of a petition, a defendant believing he or she is no longer a danger may still file with the court a petition to that effect under section 6608 and the court must review that petition.
Defendant views section 6608 as constitutionally inadequate because it does not grant a defendant the right to the assistance of a mental health expert; the court can summarily deny the petition if it believes it is frivolous; and the burden of proof is shifted to the defendant to show by a preponderance of the evidence that he or she is no longer dangerous.
While it is true that section 6608 does not expressly grant a defendant the right to a mental health expert, defendant neglects to consider that pursuant to section 6605, subdivision (a), he is entitled to an annual report “prepared by a professionally qualified person” evaluating his dangerousness. If a defendant is dissatisfied with the annual report, he or she may request the court to appoint “a qualified expert or professional” to examine him or her. (§ 6605, subd. (a).) Again, we presume the court would appoint an expert upon a sufficient showing by a defendant rather than violate its duty by not doing so. (Evid. Code, § 664.)
Defendant claims that section 6608 violates due process because it permits the court to dismiss any petition it finds to be frivolous or that fails to state sufficient facts. Since he offers neither supporting argument nor authority for this proposition, we do not address it. (People v. Dixon (2007) 153 Cal.App.4th 985, 996.)
Finally, as to shifting the burden of proof to defendant to prove his nondangerousness, we perceive no fundamental unfairness in this procedure. Defendant has previously been determined, beyond a reasonable doubt, to be an SVP. It is not unfair or unreasonable to give that adjudication preclusive effect, absent proof of some change in the committed person’s mental condition. Moreover, since it is defendant who is asserting the change in his mental status, it is not unfair or unreasonable to require him to carry the burden of proving his own assertion. (See Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting”].)
To the extent defendant relies on Foucha v. Louisiana (1992) 504 U.S. 71 [118 L.Ed.2d 437], to support his argument that due process forbids placing the burden of proof on him, that reliance is misplaced. Foucha involved the issue of whether “a person acquitted by reason of insanity [could] be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness.” (Id. at p. 73 [118 L.Ed.2d at p. 444].) In Foucha, a review panel at the institution of confinement determined that “there had been no evidence of mental illness since [his] admission.” (Id. at p. 74 [118 L.Ed.2d at p. 444].) Nonetheless, the state continued to confine Foucha based on the determination that he was dangerous to himself and others. (Id. at p. 75 [118 L.Ed.2d at p. 445].) In concluding that this violated due process, the United States Supreme Court commented that Foucha was “not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous.” (Id. at pp. 81-82 [118 L.Ed.2d at p. 449].)
The foundational problem in Foucha was that the state insisted on keeping Foucha confined even though everyone agreed he was not mentally ill. It was in this context that the United States Supreme Court found it objectionable for the state to absolve itself of any burden of proof and to require Foucha to prove he was not dangerous. That situation is in no way comparable to proceedings under section 6608 of the SVPA. When a confined person petitions for discharge under that statute on the ground he is no longer an SVP, it will necessarily be contrary to the initial adjudication and to the extant determination of the department that he is, and remains, an SVP. Nothing in Foucha suggests that due process forbids a state from imposing the burden of proof on the committed person in such circumstances.
In sum, defendant has failed to establish that his indeterminate commitment under the amended SVPA violates due process.
II
Defendant contends that indeterminate commitment, as provided by the revisions to the SVPA, violates due process because it fails to provide for mandatory periodic hearings on whether continued commitment is warranted, thereby “creat[ing] an unacceptable risk that an SVP detainee who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process.” We disagree.
Defendant again neglects to consider that, pursuant to section 6605, subdivision (a), he is entitled to an annual review of his present dangerousness by a qualified expert. If dissatisfied with the review, he may request appointment of another mental health professional or he may file a petition under section 6608, thereby obtaining judicial review of his circumstances. To the extent defendant’s contention implies that the annual report would necessarily be biased in favor of the government, he offers no basis for such speculation. It simply defies both common sense and the presumption that an official duty will be regularly performed to conclude that the DMH has any desire to detain any person whom it believes is no longer dangerous merely to avoid placing the government in a position where it, instead of defendant, will bear the burden of proof.
III
Defendant contends that revising the SVPA to provide for an indeterminate term of commitment renders the SVPA punitive in nature and, thereby, violates the ex post facto clause. Again, 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 federal and state ex post facto clauses are interpreted identically.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1171.)
Relying on the italicized portion cited above, defendant argues that it was the intent of the voters in enacting the indeterminate commitment portion of Proposition 83 to convert the SVPA to a punishment statute. This intent is evidenced, he claims, (1) by the stated intent of Proposition 83 as set forth in the Official Voter Information Guide; (2) by placing the indeterminate commitment requirement section among provisions that increase the penalties for violent habitual offenders, lengthening their periods of parole; and (3) expanding the definition of an SVP. We are not persuaded.
The Official Voter Information Guide for Proposition 83 contains the following statement of intent, as quoted in defendant’s opening brief: “SEC. 31 Intent Clause. It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders. It is also the intent of the People of the State of California that if any provision of this act conflicts with any other provision of law that provides for greater penalty or longer period of imprisonment the latter provision shall apply.” (Official Voter Information Guide, Cal. Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 138, defendant’s italics.)
Apparently, defendant views the italicized portion above as evidence in and of itself that the intent of Proposition 83 was to inflict punishment because he offers no supporting argument for that position. We do not so read the provision.
The reference in the intent clause to “strengthen[ing] and improv[ing] the laws that punish... sexual offenders” (italics added) is not meant to express the intent underlying the amendments Proposition 83 made to the SVPA. Rather, it was meant to express the intent underlying the other provisions of Proposition 83, which amended various Penal Code statutes governing sex crimes. That this is so is made clear in section 2 of the initiative measure, “FINDINGS AND DECLARATIONS,” which 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 ed.) foll. § 209, p. 53, italics added.)
In short, when read in conjunction with the findings and declarations of Proposition 83, what the intent clause tells us is that the voters intended the amendments to the SVPA that were part of that initiative measure to strengthen and improve the laws that control sexual offenders, not the laws that punish them. Thus, the intent clause does not support defendant’s argument that the purpose behind the amendments to the SVPA was punitive.
IV
Defendant contends subjecting SVPs such as he to the amended SVPA violates the equal protection clause of the Fourteenth Amendment because persons committed under the Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 et seq.) and persons committed because they were found not guilty by reason of insanity (NGI) (id., § 1026 et seq.) are not subject to indeterminate commitments and can more readily obtain judicial review of their commitments. We conclude no equal protection violation has been shown.
“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.’” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Defendant's 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.” (Pamphlet, 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; § 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; § 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.” (People v. Buffington, supra, 74 Cal.App.4th 1149, 1162-1163.)
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 nonviolent. 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 defendant's 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 defendant's equal protection argument fails.
V
Defendant contends the amended SVPA denies him his First Amendment right to meaningful access to the courts because: (1) an SVP can file a petition for release under section 6605 only if the department determines the person is no longer an SVP; and (2) a petition under section 6608, which can be filed without the concurrence of the DMH, does not amount to meaningful access to the courts because there is no provision for appointment of a medical expert, the trial court can summarily deny the petition without a hearing if the court determines it is frivolous, and the SVP bears the burden of proof on such a petition.
It is true that “[i]nmates are guaranteed the right to adequate, effective and meaningful access to the courts under the Fourteenth Amendment.” (In re Grimes(1989) 208 Cal.App.3d 1175, 1182.) “The right of access to the courts is an aspect of the First Amendment right to petition the government for redress of grievances.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.) Defendant, however, has failed to show that the amended SVPA violates that right.
Defendant acknowledges that “Under section 6608, subdivision (a), the SVP detainee has the right to counsel.” With regard to the appointment of a medical expert, we have concluded already that although section 6608 does not expressly provide for the appointment of a defense expert for indigent detainees, such a right is provided by section 6605. As for the court's power (indeed obligation) to deny a petition for release or discharge that is based on frivolous grounds, defendant cannot legitimately assert that he has the constitutional right to an evidentiary hearing on a petition for release or discharge that the court has determined is frivolous. (See Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 648, fn. 4 [“The right to petition is not absolute, providing little or no protection for baseless litigation or sham or fraudulent actions”].) Finally, defendant offers no authority that suggests his constitutional right to meaningful access to the courts includes the right to have the government prove beyond a reasonable doubt at regular intervals that he remains an SVP. In the absence of such authority, defendant's challenge to the amended SVPA based on his right to access to the courts fails.
Having addressed each of defendant’s constitutional challenges, we need not address his contention that none of his challenges has been waived or forfeited for appellate review.
The judgment is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.