Opinion
H031879
8-8-2008
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ROBLEDO, Defendant and Appellant.
Not to be Published
On July 26, 2007, without trial, the superior court issued a retroactive order of commitment against Arthur Robledo under the new provisions of the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The order committed him to an indeterminate term of commitment as a Sexually Violent Predator (SVP) commencing on November 9, 2001, the date of his original commitment. Appellant challenges the retroactive commitment order on a variety of grounds, both constitutional and statutory. We reverse.
All further statutory references are to Welfare and Institutions Code unless otherwise specified.
Procedural History
In 1976, appellant was convicted of two counts of violating Penal Code section 288a, subdivisions (b)(2) and (c), and one count of violating Penal Code section 286, subdivision (b). In 1988, appellant was convicted of three counts of violating Penal Code section 288, subdivision (a) and sentenced to 10 years in prison. On November 9, 2001, appellant was committed as an SVP. He was subsequently recommitted.
The Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVPs. (See Stats.2006, ch. 337, §§ 55, 56, 62, pp. 2180-2182.) In the November 2006 general election, voters approved Proposition 83, which also provided for indeterminate terms of commitment for SVPs and went into effect on November 8, 2006. (Prop. 83, §§ 27, 28; see Cal. Const., art. II, § 10, subd. (a).)
On June 28, 2007, before appellants commitment expiration date of November 9, 2007, the People filed a "motion to retroactively apply an indeterminate term to respondent" under the new provisions of the SVPA. (See §§ 6604, 6604.1, subdivision (a).) The motion asked for "judicial notice of automatic conversion to an indeterminate commitment." The motion requested that the court find that appellants SVP commitment "is now indeterminate by operation of law" and order that he "be returned to the custody of the Department of Mental Health, where [he] will remain until such time as [he is] legally discharged or conditionally released." On July 3, 2007, appellant filed an opposition to the motion.
On July 26, 2007, the trial court heard argument and granted the Peoples motion. The court found that Proposition 83 applied retroactively to appellants initial commitment date and ordered appellant committed to the custody of the State Department of Mental Health for an indeterminate term.
Retroactivity
The courts July 26, 2007, order committing appellant to an indeterminate term as an SVP retroactive to his initial order of commitment on November 9, 2001, occurred after the passage of Proposition 83. As approved by the voters in November 2006, section 6604 provides in pertinent part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term . . . ." Section 6604.1, subdivision (a), presently provides: "The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section."
The People maintain that these provisions support the superior courts order. They contend that the use of the term "initial" in section 6604.1 discloses an intent to make, and "by definition" makes, the indeterminate term retroactive. They also assert that "by erasing all references to subsequent extended commitments, the Legislature and the electorate demonstrated their intent to have the indeterminate term apply retroactively to the SVPs initial commitment date, regardless of when the person was committed." We find the Peoples contentions unpersuasive.
"It is the general rule that a statute is not retroactive in operation unless the legislative intent to the contrary is clear. [Citation.]" (Estate of Childs (1941) 18 Cal.2d 237, 246.) "California continues to adhere to the time-honored principle, codified by the Legislature in Civil Code section 3 and similar provisions, that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209; see Pen. Code, § 3; Code Civ. Proc., § 3.) "Even without an express declaration, a statute may apply retroactively if there is `"a clear and compelling implication" that the Legislature intended such a result. (People v. Grant (1999) 20 Cal.4th 150, 157 . . . .)" (People v. Alford (2007) 42 Cal.4th 749, 754.) The legislative history or the context of the enactment may provide a sufficiently clear indication of intent to make a statute operate retrospectively. (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1210.)
"In interpreting a voter initiative, we apply the same principles that govern our construction of a statute. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900 . . . .)" (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) If statutory language is ambiguous, courts refer to indicia of the voters intent, such as the analyses and arguments contained in the official ballot pamphlet. (Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901.) The courts task is to effectuate the electorates intent. (Ibid.)
To answer the pivotal question of intent, we look first at the legislative history of sections 6604 and 6604.1. Section 6604, which was part of the original SVPA enacted in 1995, provided for a two-year commitment. (Stats. 1995, ch. 763, § 3, pp. 5925-5926.) Section 6604.1 was added to the SVPA in 1998. (Stats. 1998, ch. 19, § 5, p. 106, eff. April 14, 1998.) Its enactment put to rest the issue whether a person committed as an SVP was entitled to credit for confinement prior to the initial order of commitment.
As enacted in 1998, section 6604.1 read: "(a) The two-year term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section. The two-year term shall not be reduced by any time spent in a secure facility prior to the order of commitment. For subsequent extended commitments, the term of commitment shall be from the date of the termination of the previous commitment. [¶] (b) This section shall remain in effect only until January 1, 1999, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 1999, deletes or extends that date." In regard to section 6604.1, the Legislature declared: "[T]he provisions of Article 4 (commencing with Section 6600) of Chapter 2 of Part 2 of Division 6 of the Welfare and Institutions Code establish a civil mental health commitment for a period of two years for persons found to be sexually violent predators and that, consistent with a civil mental health commitment, credits that may reduce a term of imprisonment are not applicable. Accordingly, . . . Section 5 of this act, which adds Section 6604.1 to the Welfare and Institutions Code, does not constitute a change in, but is declaratory of, existing law." (Stats. 1998, ch. 19, § 10, p. 107.) Subsequent legislation enacted that same year extended the operation of section 6604.1 and provided a later sunset date. (Stats. 1998, ch. 961, § 7, p. 5559, eff. Sept. 29, 1998.)
In 2000, the Legislature amended section 6604.1 to eliminate any sunset provision. (Stats. 2000, ch. 420, § 4, pp. 2542-2543, eff. Sept. 13, 2000.) The amendment also made nonsubstantive changes in subdivision (a) and added a new subdivision (b) making specified provisions relating to evaluations in section 6601 and "[t]he rights, requirements, and procedures set forth in Section 6603" applicable to extended commitment proceedings. (Ibid.) The 2000 legislation also made nonsubstantive changes in section 6604, merely substituting "petition for extended commitment" for "new petition for commitment." (Stats. 2000, ch. 420, § 3, p. 2542, eff. Sept. 13, 2000.)
In 2006, the Legislature amended sections 6604 and 6604.1 to provide for an indeterminate term instead of a two year term of commitment, effective September 20, 2006. (Stats. 2006, ch. 337, §§ 55, 56, 62, pp. 2180-2182.) The legislation did not contain any provision expressly stating that section 6604 or 6604.1, as amended, operated retroactively. In section 6604.1, the Legislature simply substituted "indeterminate" for "two-year" in the first sentence of former subdivision (a) and deleted the remainder of that subdivision so that subdivision (a) read: "The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section." (Stats. 2006, ch. 337, § 56, p. 2181, § 62, p. 2182, eff. Sept. 20, 2006.) The Legislature changed the language in subdivision (b) to omit references to extended commitments and instead referred to "all commitment proceedings." (Stats. 2006, ch. 337, § 56, p. 2181.)
As rewritten by the Legislature, section 6604.1, subdivision (b), provided: "The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed pursuant to a trial conducted pursuant to subdivision (f) of Section 6605. The rights, requirements, and procedures set forth in Section 6603 shall apply to all commitment proceedings." (Stats. 2006, ch. 337, § 56, p. 2181.)
In November 2006, the voters approved Proposition 83, a wide-ranging initiative measure covering sex offenses, registered sex offenders, and SVP law. This initiative measure, like the legislation that became effective in September 2006, amended 6604 and 6604.1 to provide for an indeterminate term of commitment instead of a two-year term. (Prop. 83, §§ 27, 28, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Section 6604.1, subdivision (a), as approved by the voters, reads identically to the Legislatures 2006 version: "The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section." (Prop. 83, § 28, approved Nov. 7, 2006.) Contrary to the Peoples claim, section 6604.1, subdivision (b), still refers to extended commitments: "The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed for purposes of extended commitments." (Italics added.)
As approved by the voters in 2006, section 6604.1, subdivision (b), currently provides in full: "The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed for purposes of extended commitments. The rights, requirements, and procedures set forth in Section 6603 shall apply to all commitment proceedings."
We put no stock in the Peoples argument that section 6604.1s requirement that the indeterminate term of commitment commence on the date of the "initial order of commitment" demonstrates an intent to make the indeterminate term retroactive. The 2006 amendments merely changed the length of commitment and left intact the pre-existing language in the first sentence of former section 6604.1, subdivision (a). Under these circumstances, we cannot say that the retention of the phrase "initial order," which was part of language added in 1998 to clarify the unavailability of credit to reduce the term of commitment, reflects any particular intent in 2006 to make an indeterminate term retroactive to the very first date of commitment as an SVP.
The People suggest that the declaration of intent in Proposition 83 indicates the measure "would do away with all SVP recommitment trials," which means "the indeterminate term is retroactive to appellants initial commitment date." They point to the following statement of intent: "The People find and declare the following: . . . [¶] (k) 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." (Ballot Pam., Gen. Elec. (Nov. 7, 2006), Prop. 83, § 2, p. 127.)
Proposition 83s declaration of intent does not explicitly make indeterminate terms retroactive and is equally consistent with the intent to impose indeterminate terms of commitment in future commitment proceedings. "[A] remedial purpose does not necessarily indicate an intent to apply the statute retroactively. Most statutory changes are, of course, intended to improve a preexisting situation and to bring about a fairer state of affairs, and if such an objective were itself sufficient to demonstrate a clear legislative intent to apply a statute retroactively, almost all statutory provisions and initiative measures would apply retroactively rather than prospectively." (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1213.)
The People do not direct us to anything else in the election materials indicating that the drafters or proponents of the proposition or the voters intended to have courts impose, without trial, indeterminate terms retroactive to original commitment dates. The analysis by the Legislative Analyst, which was provided to voters in the Official Voter Information Guide, described the commitment term of SVPs: "Offenders designated as SVPs by the courts are committed to a state mental hospital for up to two years. An offender can be recommitted by the courts in subsequent court proceedings." (Ballot Pam., Gen. Elec. (Nov. 7, 2006), analysis of Proposition 83 by the Legis. Analyst, p. 43.) The analysis stated that the change to the SVP law would require that "SVPs be committed by the court to a state mental hospital for an undetermined period of time rather than the renewable two-year commitment provided for under existing law." (Id. at p. 44.)
Under these circumstances, "there is no reason to believe that the electorate harbored any specific thoughts or intent with respect to the retroactivity issue at all." (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1212.) "Because past cases have long made it clear that initiative measures are subject to the ordinary rules and canons of statutory construction [citations], informed members of the electorate who happened to consider the retroactivity issue would presumably have concluded that the measure — like other statutes — would be applied prospectively because no express provision for retroactive application was included in the proposition." (Id. at pp. 1212-1213.)
The People insist that case law supports their retroactivity argument. We find none of the cases cited to be on point. In People v. Buttes (1982) 134 Cal.App.3d 116, 128-129, an appellate court rejected an argument that an order of commitment for an additional two-year extended term under Penal Code section 1026.5 violated the constitutional prohibition against ex post facto laws. In People v. Superior Court (Woods) (1990) 219 Cal.App.3d 614, an appellate court rejected another ex post facto argument that Penal Code section 1026.2, subdivision (e), did not apply because the provision "was not part of the law in effect at the time he entered his NGI plea." (Id. at p. 617.) In each case, the ex post facto challenge was rejected because the laws were not penal and did not increase criminal punishment. (See People v. Buttes, supra, 134 Cal.App.3d at p. 128; People v. Superior Court (Woods), supra, 219 Cal.App.3d at p. 617; see also Kansas v. Hendricks (1997) 521 U.S. 346, 370 [ex post facto clause pertains exclusively to penal laws].) Neither case involved the statutory interpretation question whether a law was intended to operate retroactively.
In Rio Linda Union School Dist. v. Workers Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, a third case cited by the People, the appellate court reviewed a decision of the Workers Compensation Appeals Board (WCAB). The court held that the WCAB had incorrectly concluded that a new workers compensation statute, which repealed a purely statutory workers compensation right, did not apply to a workers compensation case submitted to a workers compensation judge for decision prior to the new laws effective date but actually decided four days after the effective date. (Id. at pp. 521, 532.) The court explained that "the repeal of a statutory right or remedy triggers the application of rules distinct from the traditional law regarding the prospective or retroactive application of a statute" and "[t]he repeal of such statutory right applies to all pending cases, at whatever stage the repeal finds them, unless the Legislature has expressed a contrary intent by an express saving clause or by implication from contemporaneous legislation. (Younger v. Superior Court [1978] 21 Cal.3d [102] 110 . . . .)" (Id. at p. 528.) The "well settled rule that an action wholly dependent on statute abates if the statute is repealed without a saving clause before the judgment is final" (see Younger v. Superior Court, supra, 21 Cal.3d at p. 109) has no application here.
We are left with the presumption that new law operates prospectively absent a clear expression of contrary intent. "Moreover, `the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. (People v. Black [(1985) 32 Cal.3d 1,] 5.) Similarly, a statute should not be given a construction that results in rendering one of its provisions nugatory. (See Select Base Materials v. Board of Equalization [(1959) 51 Cal.2d 640,] 647; People v. Hawes (1982) 129 Cal.App.3d 930, 939 . . . .)" (People v. Craft (1986) 41 Cal.3d 554, 560.)
Thus, subdivision (a) of section 6604.1 must be construed in conjunction with subdivision (b) of section 6604.1, which requires section 6601, subdivisions (c) to (i), to be applied to "evaluations performed for purposes of extended commitments" and requires the "rights, requirements, and procedures set forth in Section 6603," including the right to jury trial (§ 6603), to be applied to "all commitment proceedings." Section 6604 expressly conditions the imposition of an indeterminate term upon a "court or jury determin[ing] that the person is a sexually violent predator . . . ." In this larger context, the most reasonable interpretation of sections 6604 and 6604.1 is that an indeterminate term of commitment may be ordered only following a trial in which a person is determined to be an SVP and that term commences on the date upon which the court issues its order pursuant to this current version of section 6604.
Sections 6604 and 6604.1 in effect in July 2007 did not authorize an order imposing an indeterminate term of commitment retroactive to the date upon which appellant was first committed as an SVP under predecessor law. Our conclusion alleviates the need to reach the host of constitutional and jurisdictional claims raised by appellant against the courts retroactive order of commitment.
Our conclusion is consistent with this courts recent opinions in People v. Litmon (2008) 162 Cal.App.4th 383 (pet. rev. filed June 2, 2008) and People v. Whaley (2008) 160 Cal.App.4th 779. Respondent criticizes Whaley, saying, "This decision did not adequately consider the strength of 6604.1 (a)s temporal statement, nor the conscious deletions leaving a retroactive indeterminate term." We disagree and follow Whaley and Litmon.
Disposition
The July 26, 2007, order imposing an indeterminate term of commitment as an SVP is reversed.
WE CONCUR:
PREMO, Acting P. J.
BAMATTRE-MANOUKIAN, J.