Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. FP3548A of Kern County. Michael E. Dellostritto, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
PROCEDURAL AND FACTUAL HISTORY
In January of 2002, Manuel Stell (appellant) was convicted of rape in violation of Penal Code section 261, subdivision (a)(2) and sentenced to six years in state prison. Previously, in August 1996, appellant was convicted of lewd and lascivious acts with a child under the age of 14 in violation of Penal Code section 288, subdivision (a), and sentenced to the California Youth Authority until February 10, 2000.
In September 2007, prior to appellant’s release from prison on the 2002 conviction, the Kern County District Attorney filed a petition pursuant to Welfare and Institutions Code section 6600 et seq., the Sexually Violent Predator Act (SVPA), as amended by Senate Bill No. 1128 (2005-2006 Reg. Sess.) and Proposition 83, seeking to commit appellant as a sexually violent predator (SVP) for an indeterminate period of time.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
In September 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) amended the SVPA primarily by changing the former two-year civil commitment for an individual found to be an SVP to an indeterminate term commitment. There were several significant procedural changes implemented by the 2006 amendments as well. (Stats. 2006, ch. 337, §§ 53-62, hereafter Senate Bill No. 1128.) Later, the voters approved Proposition 83 (The Sexual Predator Punishment and Control Act: Jessica’s Law), which also amended the SVPA and several other statutes addressing violent sex offenses. (See Historical and Statutory Notes, 73D West’s Ann. Welf. & Inst. Code (2009 supp.) foll. § 6604, p. 153; Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006).) Like Senate Bill No. 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment.
Pursuant to the SVPA’s procedures, the trial court conducted a probable cause hearing on October 15, 2007. At the hearing, the state presented evaluations from Drs. Steven Jenkins and Erik Fox, both psychologists, who had interviewed and evaluated appellant according to the standardized assessment protocol developed and implemented by the California Department of Mental Health (Department). Both evaluations opined that appellant suffers from paraphilia, a diagnosed mental disorder that predisposes him to the commission of sexual offenses, that he is not amenable to treatment out of custody, and he is likely to reoffend if released. The trial court concluded there was probable cause to believe that appellant fell within “the provisions of SVP” and ordered the matter set for trial.
On September 12, 2008, the matter was tried before a jury and appellant was found to be an SVP. The trial court then ordered appellant to the custody of the Department for an indeterminate term.
On appeal, appellant contends the evaluations supporting his commitment were invalid for failure to comply with the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.). He also raises numerous constitutional challenges to the SVPA. We reject his challenges and affirm the judgment.
DISCUSSION
1. Administrative Procedure Act
Appellant first contends that the order of commitment is invalid because it was obtained by the use of evaluations procured by the Department in violation of the APA. Government Code section 11340.5, subdivision (a) provides:
“No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instructions, order, standard of general application, or other rule, which is a regulation as defined in [Government Code] Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.”
The Office of Administrative Law (OAL) is charged with enforcing this requirement. (Gov. Code, §§ 11340.2, 11340.5, subd. (b).)
The SVPA requires that a suspected SVP undergo two psychological evaluations conducted pursuant to a protocol established by the Department. Evaluations concluding that an individual is an SVP lead to what is essentially a probable cause hearing and, ultimately, to trial. (§ 6601, subds. (c) & (d); Cooley v. Superior Court (2002) 29 Cal.4th 228, 247.) In August of 2008, the OAL found that the protocol established by the Department is an “underground regulation” and unlawful. (See 2008 OAL Determination No. 19 (Aug. 15, 2008) at p. 13 <www.oal.ca.gov/pdfs/determinations/2008/2008_OAL_Determination_19.pdf>; see also People v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).) “‘An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA]. [Citation].’” (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429.)
The Attorney General does not argue that the AOL's determination is incorrect. Although the OAL determination is not binding on this court, it is entitled to deference. (See Grier v. Sizer (1990) 219 Cal.App.3d 422, 428, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.) We will assume without deciding that the protocol is an underground regulation that violates the APA.
Nevertheless, appellant is unable to show prejudice from use of the non-APA-compliant evaluation protocol. The protocol is statutorily mandated for use in the administrative actions leading to the filing of an SVP petition (§ 6601, subds. (c) & (d)) and was used in this case as the foundation for the expert opinion that appellant was an SVP as defined by the SVPA. Even though the requirement for evaluations is not one affecting disposition of the merits, we agree with appellant that the evaluations play a significant part in the trial process, as well as in the probable cause hearing. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063 [evaluation is collateral procedural condition designed to ensure SVP proceedings initiated only when there is substantial factual basis for doing so, but after petition is filed issue becomes whether there is evidence that alleged SVP is person likely to engage in sexually violent predatory criminal behavior].) But whether the evaluations form the underpinnings of the SVP commitment, appellant must still show prejudice.
Appellant contends in his briefing that the standard of review is de novo. However, de novo is the correct standard for determining whether the protocol is an “underground regulation,” albeit with deference granted to the OAL’s conclusion. As we have stated, we need not address this issue because, even if we were to agree with the OAL, appellant would still be required to prove prejudice in order to earn reversal of the commitment order.
Article VI, section 13 of the California Constitution provides that a judgment cannot be set aside “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” Error is reversible only where it affects the substantial rights of the parties, a party has sustained a substantial injury, and a different result would have been probable if the error had not occurred. (See also Code Iv. Kroc., § 475; Sabik, Inc. v. County of Sonoma (1987) 190 Cal.App.3d 163, 168 [anyone who seeks reversal must show error was prejudicial]; accord, Medina, supra, 171 Cal.App.4th at p. 819.) Prejudice is not presumed, and appellant has the burden of demonstrating that a miscarriage of justice has occurred. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) This he has failed to do.
There is no reason to believe that a dismissal of the petition on the grounds that the protocol was not APA compliant would have resulted in an abandonment of the commitment proceedings. Nor is there any evidence to support a conclusion that, had appellant been evaluated under an APA-compliant protocol, he would have been found not to be an SVP. The AOL's determination includes a caveat that its review of the protocol was only for the purpose of deciding whether it was a regulation within the meaning of the APA and that it was not evaluating the admissibility or wisdom of the protocol itself. (2008 OAL Determination No. 19, supra, at p. 1.)
Both experts testified at trial that appellant suffered from a diagnosis of paraphilia not otherwise specified and antisocial personality disorder, and that he was likely to reoffend. Their opinions were based on their interviews with appellant, their independent professional training and education, the use of multiple standardized professional assessment tools, and their review of appellant’s past offenses and prior treatment record. Although the experts were guided by the standardized assessment protocol, they still reached their own independent professional opinions.
Dr. Fox testified that, although the protocol requires that some specific tools be used, for example, an actuarial instrument called the MnSOSTR and the STATIC 99 prediction tool, he, like other evaluators, based his conclusion on “the totality of all the evidence, the dynamic factors, the static factors, the protective factors, our interview, our diagnosis,” as well as the qualifying prior convictions and the underlying facts. There is no suggestion in the record that the evaluators felt constrained by the protocol and would have concluded differently had they not been required to follow it.
Appellant makes no showing that, had the protocol been submitted to APA review, it would have been changed or that any changes would affect his personal standing as an SVP. Appellant makes no arguments related to deficiencies in the protocol other than to say it was not adopted pursuant to the APA. The record is insufficient to show that a different result was probable had the Department’s protocol been vetted through APA procedures. (Medina, supra, 171 Cal.App.4th at p. 820.)
Due to the fact that appellant has shown no prejudice, his claim fails.
2. Constitutional Challenges to the SVPA
We address, and reject, all of appellant’s claims that the SVPA is constitutionally infirm. The current “statutory scheme, on its face, is constitutional.” (People v. Taylor (2009) 174 Cal.App.4th 920, 931 (Taylor).)
A. Due Process
Appellant argues that the SVPA, as modified by Proposition 83, denied him due process of law under both the state and federal Constitutions because the amended statute eliminated certain procedural safeguards, including the limited duration of the commitment, periodic judicial review, a requirement that the state prove beyond a reasonable doubt a need for continued commitment and the right to experts at state expense. The issue of whether Proposition 83 violated appellant’s due process rights, as well as the issues of equal protection, the ex post facto clause, the double jeopardy clause, the imposition of cruel and unusual punishment, and unlawful restriction of a detainee’s First Amendment right to petition the court for redress, have been previously decided in a manner that is unfavorable to appellant’s position and are currently pending before the California Supreme Court. (See, e.g., People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823; People v. Johnson (2008) 162 Cal.App.4th 1263, review granted Aug. 13, 2008, S164388; People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008, S164711; People v. Boyle (2008) 164 Cal.App.4th 1266, review granted Oct. 1, 2008, S166167; People v. Garcia (2008) 165 Cal.App.4th 1120, review granted Oct. 16, 2008, S166682.)
Our conclusion that the SVPA complies with due process is consistent with United States Supreme Court precedent. Section 6605 provides that a mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (§ 6605, subd. (a).) A report is to be filed with the court and served on the committed person. (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for this type of discharge or conditional release is to be filed. (§ 6605, subd. (b).) At the hearing on this petition, the committed individual has the right to appointed counsel, the right to a jury trial, and the right to an appointed expert. (Id., subd. (d).) Additionally, the state has the burden of proving beyond a reasonable doubt that the SVP is to remain committed. (Ibid.) If at any time the Department has reason to believe the person committed is no longer an SVP, it must seek judicial review of the commitment. (Id., subd. (f).)
There is United States Supreme Court authority holding that an initial civil commitment for an indefinite term does not violate due process merely because it is indefinite. (See Jones v. United States (1983) 463 U.S. 354, 368 [statute providing for indefinite commitment of criminal defendant acquitted by reason of insanity, and requiring defendant to prove by preponderance of evidence that defendant is no longer insane or dangerous in order to be released, does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346, 369 [upholding the Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that committed person no longer dangerous]; see also Foucha v. Louisiana (1992) 504 U.S. 71, 77 [indefinite civil commitment consistent with due process if commitment statute provides fair and reasonable procedures so that person is held only as long as he or she is both mentally ill and dangerous].)
If the Department does not certify that the person should be discharged or conditionally released, the committed person can file a petition seeking conditional release or discharge. (§ 6608, subd. (a).) Section 6608, subdivision (i) provides that, in any hearing on a petition filed under this section, the petitioner has the burden of proof by a preponderance of the evidence.
Due to the requirement of an annual review, the commitment period is “only potentially indefinite.” (Kansas v. Hendricks, supra, 521 U.S. at p. 364.) The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California’s scheme (§ 6608) assures that an individual remains committed only as long as he or she meets the statutory definition of an SVP and that constitutional requirements are satisfied. (See Kansas v. Hendricks, supra, at pp. 364-365.)
In addition, an SVP commitment proceeding is civil in nature. (People v. Collins (2003) 110 Cal.App.4th 340, 348.) Although a defendant in an SVP proceeding is entitled to due process, the protections afforded are measured by the standard applicable to civil, not criminal, proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) Due process is a flexible concept calling for whatever procedural protections a particular situation demands. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399.) Rules of civil procedure apply to petitions for discharge or conditional release filed by an SVP pursuant to section 6608. (People v. Collins, supra, at p. 348.) The burden of proof falls on the moving party and is by a preponderance of the evidence. (Ibid.; § 6608, subd. (i); Evid. Code, § 115.)
Some provisions of the statute challenged by appellant, including the assignment of the burden of proof, were in effect prior to the 2006 amendments and have been upheld by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138. Hubbart comprehensively summarized the many provisions in the scheme and observed that a person filing a petition for discharge or conditional release has the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court analyzed and rejected a due process challenge to the statutory scheme. (Id. at pp. 1151-1167.)
B. Ex Post Facto
Appellant contends imposition of an indeterminate term renders the SVPA punitive in nature and violates constitutional prohibitions against ex post facto laws. We disagree.
It is well settled that a commitment under the SVPA is civil in nature and legally does not amount to punishment. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179 [SVPA does not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 [SVPA is not punitive and does not impose liability or punishment for criminal conduct]; People v. Carlin (2007) 150 Cal.App.4th 322, 348 [same].)
All of the cases cited above interpret the SVPA prior to its amendment calling for an indefinite term. But an indefinite term does not itself convert a civil commitment under the SVPA to a punitive confinement. There is nothing in the legislative history that suggests either Senate Bill No. 1128 or Proposition 83 was intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. Since the SVPA is not punitive, the principles of ex post facto do not apply. (Taylor, supra, 174 Cal.App.4th at p. 937.)
C. Double Jeopardy
Appellant claims his indeterminate commitment as an SVP is punitive in nature and thus violates the prohibition against double jeopardy. Like his ex post facto claim, appellant’s double jeopardy claim is without merit because the SVPA is a civil commitment scheme.
A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks, supra, 521 U.S. at p. 369.) As discussed ante, the SVPA, as amended by Proposition 83, remains civil, not punitive, in nature. Because appellant’s commitment is civil in nature, it does not run afoul of the double jeopardy clause. (Taylor, supra, 174 Cal.App.4th at p. 937; People v. Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2 [since SVPA not punitive and does not impose liability or punishment for criminal conduct, double jeopardy claim fails].)
D. Equal Protection
Appellant argues that his commitment as an SVP violates equal protection because similarly situated groups are treated in an unequal manner. Specifically, appellant points to those confined as mentally disordered offenders (MDO) pursuant to the Mentally Disordered Offender Act (MDOA) (Pen. Code, § 2960 et seq.), and those committed to the Department by virtue of a criminal verdict of not guilty by reason of insanity (id., § 1026 et seq.), as similarly situated groups whose treatment differs from that accorded those determined to be SVP’s.
SVP’s are treated differently than other civil committees. For example, SVP’s are subject to an indefinite commitment while MDO’s are limited to one-year renewable terms. (Pen. Code, § 2972, subd. (c).) A person found not guilty by reason of insanity may petition for release after 180 days of commitment, and the court may not summarily reject the petition. (Id., § 1026.2, subds. (a) & (d); People v. Soiu (2003) 106 Cal.App.4th 1191, 1197.) A court may summarily reject a petition filed by an SVP upon a finding that the petition is frivolous. (§ 6608, subd. (a).)
But SVP’s are not similarly situated to persons committed under other civil commitment statutes (People v. Buffington (1999) 74 Cal.App.4th 1149, 1163) since the SVPA acknowledges that persons committed pursuant to its authority may have mental disorders that will never successfully be treated. (§ 6606, subd. (b); see also People v. Hubbart (2001) 88 Cal.App.4th 1202, 1209, 1226.) In contrast, the law anticipates that those individuals committed under the MDOA and Penal Code section 1026 will be restored to sanity or, at the least, be able with treatment to keep their mental disorders in remission. (Pen. Code, §§ 2962, 1026.2.) If persons are not similarly situated for purposes of the law, an equal protection claims fails at the outset. (People v. Buffington, supra, at p. 1155.) For this reason, we reject appellant’s equal protection claim.
E. Cruel and Unusual Punishment
Appellant next argues that his indeterminate commitment constitutes cruel and unusual punishment. The Eighth Amendment’s cruel and unusual punishment clause prohibits those convicted of crimes from being physically punished by barbarous methods and ensures the penal measures embody concepts of dignity, humanity, and decency. (Estelle v. Gamble (1976) 429 U.S. 97, 102-103; Roe v. Crawford (8th Cir. 2008) 514 F.3d 789, 799.)
The amended SVPA scheme implicates neither deterrence nor retribution, which are the two primary objectives of criminal punishment. (People v. Robinson (1998) 63 Cal.App.4th 348, 351.) Constitutional safeguards against cruel and/or unusual punishment do not apply to civil commitment proceedings. (People v. Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2.) As with appellant’s ex post facto argument, his cruel and/or unusual punishment argument fails for want of a valid premise. (See People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 486-487.)
We reject appellant’s claim because he is not a prisoner, and he is not being punished. He has been committed in a civil proceeding for treatment of a mental disorder that renders him dangerous to others. While we recognize that appellant’s commitment results in a loss of freedom, the Eighth Amendment is inapplicable.
F. Single-Subject Rule
Appellant next contends that the amendments to the SVPA stemming from the passage of Proposition 83 should be declared unconstitutional because Proposition 83 violated the single-subject rule for ballot initiatives. We disagree.
An initiative does not violate the single-subject requirement if all of its parts are reasonably germane to each other and to the general objective of the initiative. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157; Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140, which combined such disparate subjects as term and budget limitations and pension restrictions].)
Proposition 83 addressed a number of civil and criminal statutes, but all were related to the punishment and control of sexual predators. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83.) The stated purpose of Proposition 83 was to “‘strengthen and improve the laws that punish and control sexual offenders.’” (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1282; see Historical and Statutory Notes, 73D West’s Ann. Welf. & Inst. Code, supra, foll. § 6604, p. 153; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006.)
The single-subject rule does not require that the collateral parts of an initiative be equivalent, for example, that they be all civil, completely criminal, or only substantive or procedural. Nor does it mandate that the collateral parts be tied directly in application. The only requirement is that the provisions work together to further the initiative’s stated purpose. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 [upholding Prop. 115 in single-subject challenge despite sweeping changes affecting various aspects of the criminal justice system]; see also Manduley v. Superior Court (2002) 27 Cal.4th 537, 573 [upholding Prop. 21]; Brosnahan v. Brown (1982) 32 Cal.3d 236, 247 [upholding Prop. 8].)
The SVP component of Proposition 83 may be civil in nature, but it is not unrelated to the criminal justice purpose stated as the goal of the initiative. The necessary reasonable and commonsense relationship is present.
G. First Amendment
Appellant’s last constitutional challenge is that his First Amendment right to petition the courts has been infringed by the amended SVPA. We disagree.
“The First Amendment to the United States Constitution protects the right ‘to petition the Government for a redress of grievances.’ This includes the right of access to the courts. [Citation.]” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 162.)
The current version of the statute, as amended by Proposition 83, reads, “Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health.” (§ 6608, subd. (a).) As appellant acknowledges, he is entitled to the assistance of counsel in these proceedings. He is not prohibited from the use of expert witnesses, including the witnesses who may have been retained pursuant to section 6605. His petition is subject to dismissal only if the trial court finds it is based on frivolous grounds, an extremely narrow and limited basis for dismissal. (§ 6608, subd. (a).) Appellant has the right to seek release under the provisions of the SVPA, and a committed person always has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.) Thus, appellant’s First Amendment right to petition for redress of grievances is preserved under the amended SVPA.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., HILL, J.