Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 102242
HULL, J.Defendant Ronald Paul Rowell appeals from an order extending his commitment to the Department of Mental Health (the Department) as a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et seq.; unspecified section references that follow are to the Welfare and Institutions Code.) He challenges his commitment on the grounds that (1) the psychiatric evaluations conducted as prerequisites to the filing of the petition are invalid because the Department failed to comply with the Administrative Procedures Act (APA) (Gov. Code, § 11340.5, subd. (a)) when it promulgated the standard assessment protocol used to conduct the evaluations, and (2) an indeterminate commitment with limited judicial review violates constitutional guarantees of due process and equal protection. We affirm the judgment.
Sexually Violent Predators Act
Given the nature of defendant’s claims, we dispense with the usual statement of facts and instead outline the provisions of the Sexually Violent Predators Act (SVPA) essential to this appeal.
The SVPA provides for the involuntary civil commitment of certain offenders who are found to be SVP’s. (§ 6600 et seq.; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) To establish that an offender is an SVP, the prosecution must prove that the person (1) has been convicted of one or more of the enumerated sexually violent offenses against one 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. (§§ 6600, subd. (a)(1); 6604.)
The person’s commitment under the SVPA follows the completion of a prison term (§ 6601, subd. (a); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145) and the process takes place in several stages, both administrative and judicial. The inmate’s records are first screened by prison officials, who may refer the inmate to the Department for a full evaluation as to whether the inmate meets the criteria for commitment of an SVP under section 6600. (§ 6601, subd. (b).)
The Department must evaluate the offender in accordance with a “standardized assessment protocol, developed and updated by the [Department],” to determine whether the person is an SVP. (§ 6601, subd. (c).) The protocol requires “assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (Ibid.)
The Department’s evaluation must be conducted by two practicing psychiatrists or psychologists or one practicing psychiatrist and one practicing psychologist designated by the director of the Department. (§ 6601, subd. (d).) If both evaluators agree that the offender has a diagnosed mental disorder and is likely to engage in acts of sexual violence without appropriate treatment and custody, the director of the Department (the director) must forward a request for a commitment petition to the county where the offender was convicted. (Ibid.)
If the county’s legal counsel concurs with the director’s recommendation, a petition for civil commitment is filed in the superior court (§ 6601, subd. (i)) and a judicial 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 release. If the court determines probable cause exists, it must order that a jury trial be held. (§§ 6602, subd. (a); 6603, subd. (a).) (Here, defendant waived his right to a jury.)
At trial, the state has the burden of proving beyond a reasonable doubt that the person is an SVP. (§ 6604.) The SVP scheme affords numerous rights to the individual, including the right to assistance of counsel, the right to retain experts, and access to medical and psychological reports. (§ 6603, subd. (a).)
Originally, the SVPA provided for a two-year civil commitment of any person who was tried and found beyond a reasonable doubt to be an SVP. (People v. Williams (2003) 31 Cal.4th 757, 764.) Upon expiration of the two-year term, the term could be extended only if the government again established, beyond a reasonable doubt, that the person remained an SVP. The SVPA was amended in 2006 to change the initial term of commitment from a two-year term to an indeterminate term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) Consequently, the government no longer has to prove at regular intervals that the offender remains an SVP. Instead, the Department must examine the person’s mental condition at least once every year and report on whether the person remains an SVP. (§ 6605, subd. (a).)
If the Department determines the person is no longer an SVP, the director must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).) If, after considering such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must conduct a hearing, at which the government must prove beyond a reasonable doubt that the person is still an SVP. (Id., subds. (c) & (d).) If the government meets this burden, the offender is again committed for an indeterminate term. (Id., at subd. (e).) If, however, the government does not meet its burden, the person must be discharged. (Ibid.)
The only other possibility for release from confinement under the amended SVPA is a petition under section 6608. Under this provision, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director. (§ 6608, subd. (a).) Such a petition may also be instituted by the director under section 6607. In any hearing under section 6608, however, the petitioner bears the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
With this statutory framework in mind, we turn to defendant’s claims on appeal.
Discussion
I
Psychiatric Evaluations
Defendant contends that his commitment must be reversed because it was predicated on psychiatric evaluations that were prepared in accordance with a protocol that was not properly adopted as a regulation under the APA. Defendant did not raise this claim in the trial court, and we question whether this issue is properly preserved for appeal. However, even if we assume that the general rule of forfeiture does not apply, defendant’s claim is unavailing. The legitimacy of defendant’s commitment is not undermined by any failure of the Department to follow APA requirements.
We previously granted defendant’s motion for judicial notice of the August 15, 2008 opinion of the Office of Administrative Law, which concluded that the protocol used by the Department for SVP evaluations met the definition of a “regulation” and therefore should have been adopted pursuant to the APA. However, nothing in this determination suggested that the protocol was otherwise deficient or unreliable as an assessment tool.
The fact that the evaluation protocol may be an “underground regulation” does not warrant the reversal of defendant’s commitment. The psychiatric evaluations prepared prior to the filing of a petition under the SVPA do not affect disposition of the merits of the petition but serve only as a procedural safeguard to prevent meritless petitions from reaching trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063; People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.) As we have outlined, once the petition is filed, a new round of proceedings is triggered. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1146.)
The statutory scheme does not require the People to prove the existence of these evaluations at either the probable cause hearing or the trial. (People v. Superior Court (Preciado), supra, 87 Cal.App.4th at p. 1130.) Once the petition is filed, the People need only prove the essential fact that the alleged SVP is a person likely to engage in sexually violent predatory behavior. (Ibid.)
Similarly, the only purpose of the probable cause hearing under the SVPA is to weed out groundless petitions by testing the sufficiency of the evidence to support the SVPA petition. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235, 247; People v. Hayes (2006) 137 Cal.App.4th 34, 43-44 (Hayes).) The hearing is analogous to a preliminary hearing in a criminal case. (Cooley, at p. 247.) Once the court determines that there is probable cause as to each element necessary for an SVP determination, the matter proceeds to trial in the manner described above.
Consequently, challenges to a probable cause finding in an SVP proceeding are handled in the same manner as challenges to a preliminary hearing finding in a criminal case. (Hayes, supra, 137 Cal.App.4th at p. 51.) Irregularities are not considered jurisdictional (People v. Talhelm (2000) 85 Cal.App.4th 400, 405) and reversal is required only if the defendant can show he or she was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. (Hayes, supra, 137 Cal.App.4th at p. 50, relying on People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.)
Here, defendant does not challenge the sufficiency of the evidence at either the probable cause hearing or at trial. Because the evaluations serve only to prevent meritless petitions from reaching trial (People v. Scott, supra, 100 Cal.App.4th at p. 1063; People v. Superior Court (Preciado), supra, 87 Cal.App.4th at p. 1130) and a trial was held in which the court found beyond a reasonable doubt that defendant is an SVP, defendant has failed to establish any prejudice. His claim therefore fails.
II
Constitutionality of Indeterminate Commitment
Defendant contends that the SVPA’s indeterminate term of commitment, with limited review, violates constitutional guarantees of due process and equal protection. Recognizing that this issue is currently pending before the California Supreme Court in a number of cases (e.g., People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823; People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008, S164711), we conclude that the SVPA passes constitutional muster.
A. Due Process
Defendant contends that the limited review available under the SVPA violates his due process rights. Specifically, he asserts that the review provisions are not narrowly tailored to serve the State’s interest in protecting society from those presently dangerous due to a mental illness because they create a substantial risk that a detainee who no longer qualifies as an SVP will nonetheless remain in custody.
Defendant contends that the procedure by which the Department authorizes a person to petition for discharge or conditional release (§ 6605, subd. (b)), outlined above, is problematic because the Department retains sole discretion and may prevent a hearing from ever taking place. There is no basis in the record or otherwise for speculating that the Department will not fairly assess the mental condition of a person committed as an SVP. Moreover, section 6608 allows a person to petition for discharge without the concurrence or recommendation of the Department.
Defendant asserts that this alternative process is inadequate because the person is not entitled to the assistance of an expert and the petitioner bears the burden of proof. The absence of an express provision in section 6608 for the assistance of an expert presents no due process concern because such a right is provided for in section 6605. This statute requires the Department to report annually on a committed SVP’s mental condition and provides that “[t]he person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.” (§ 6605, subd. (a).) Thus, if the Department concludes that the person remains an SVP, that person can request the appointment of an expert to review that determination. If the expert reaches a conclusion contrary to that of the Department, the person can then use the expert’s testimony to support a petition for discharge under section 6608.
Defendant also challenges the requirement that he bear the burden of proving his right to release by a preponderance of the evidence. This procedure is analogous to that upheld in Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694].) In Jones, the United States Supreme Court considered a statutory scheme under which a person committed to a mental hospital after a finding of not guilty by reason of insanity was entitled to a judicial hearing to determine his eligibility for release at which he had the burden of proving by a preponderance of the evidence that he was no longer mentally ill or dangerous. The court found no due process violation in placing the burden of proof on the person committed. (Id. at pp. 366-368.) Similarly, we find no due process violation here.
B. Equal Protection
Defendant contends that an indeterminate commitment with limited judicial review violates his right to equal protection. He argues that an SVP is similarly situated to those committed as mentally disordered offenders (MDO’s) under Penal Code section 2960 et seq. and those committed after a finding of not guilty by reason of insanity (NGI). We disagree with defendant’s predicate: SVP’s are not similarly situated to either group, and defendant’s equal protection challenge therefore fails.
“The constitutional guaranty of equal protection of the laws means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law. [Citations.] If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] The question is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
SVP’s and MDO’s differ with respect to their amenability to treatment. “[T]he MDO law targets persons with severe mental disorders that may be kept in remission with treatment [citation], whereas the SVPA targets persons with mental disorders that may never be successfully treated [citation].” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) “Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (People v. Buffington, supra, 74 Cal.App.4th at p. 1163.)
SVP’s and NGI acquittees differ significantly in how they are committed in the first place. A person who is found not guilty because he or she was insane at the time of the crime is automatically committed, without an evidentiary hearing to determine if the person is still insane at the time of commitment. (Pen. Code, § 1026.) In contrast, a person cannot be committed under the SVPA until a trier of fact finds beyond a reasonable doubt that the person is an SVP. (Welf. & Inst. Code, § 6604.) Defendant has failed to demonstrate that SVP’s and those acquitted as NGI are similarly situated for purposes of the laws governing judicial review of their commitments.
Disposition
The judgment is affirmed.
We concur: RAYE, Acting P. J., CANTIL-SAKAUYE, J.