Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211175
ELIA, J.Albert Castellanos appeals from an April 22, 20008 order committing him as a sexually violent predator (SVP) to an indeterminate term of involuntary civil commitment under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) following a jury trial. "The SVPA was amended in various respects by Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (hereinafter, Proposition 83), which was approved by the voters at the General Election in November 2006. Among the changes made by this enactment was an amendment to section 6604 providing a commitment for an indeterminate term rather than for two years." (People v. Allen (2008) 44 Cal.4th 843, 849, fn. 4.)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Appellant maintains that the trial court lacked jurisdiction to proceed to trial because the requisite mental health evaluations launching the SVPA proceedings were based upon an invalid standardized assessment protocol. He further claims the trial court's erroneous evidentiary rulings on two in limine motions require reversal. Lastly, appellant raises several constitutional challenges to the amended SVPA.
We affirm.
A. Factual and Procedural Background
On August 1, 2007, a petition for commitment as an SVP was filed against appellant, than a state prison inmate. At trial, the People called two experts, Dr. Nancy Rueschenberg and Dr. Michael Selby, both licensed psychologists. Based upon the records they had reviewed, these experts described a number of sexual offenses that they considered in forming their opinions.
A 1976 incident involved a 17-year-old female named Jean, whom appellant approached on the street and who agreed to go to appellant's home the next night for a drink. At appellant's place the next night, Jean became upset when appellant's cousin grabbed her and tried to rape her. Appellant told her to calm down and restrained her on the bed and kissed her. Jean wanted to go home and got in a truck with appellant's cousin and appellant, who decided to go get some marijuana. The driver of the truck said that it had run out of gas and stopped at a field. In the field, appellant watched as his cousin raped Jean, appellant then raped Jean, and then appellant's cousin raped Jean again. As a result of this incident, appellant was placed on probation.
A July 1978 incident occurred while appellant was still on probation. It involved the rape of Carolyn, who had been in a relationship with appellant but had broken up with him. Carolyn resisted and appellant raped her while choking her. Appellant was not charged.
A March 1979 incident involved a female named Francine, whom appellant had met at a bus station and to whom he had given a ride. Appellant forced Francine to orally copulate him and raped her. Appellant, who was on probation at the time of this offense, was found to have violated probation and sent to prison.
In 1982, appellant again raped Carolyn, who was then married to him. He forced Carolyn to orally copulate him and raped Carolyn a number of times and forced her to swallow the semen. At the time of the incident, appellant was on parole.
In 1987, while appellant was on parole, appellant and another man picked up three teenage girls who were hitchhiking. They brought the girls to a house, where alcohol and drugs were supplied and the teens became extremely intoxicated. Appellant followed a teen named Angie into the bathroom, knocked her down and attempted to sodomize her. Appellant orally copulated and raped a Janell, a 13-year-old, who was too intoxicated to resist.
Appellant then took the girls to a motel room, where they continued drinking and doing drugs. They put 14-year-old Christine in the shower but she was so intoxicated that she could not stand up. Appellant removed his clothes and rubbed Christine's buttocks and breasts and fondled her while holding her up. At some point, Janell saw appellant attempting to rape Angie, who was yelling for appellant to get off. Janell was afraid of appellant because he told her he had just gotten out of prison for killing somebody. Appellant forced Janell to orally copulate him, put his fingers in her vagina, and tried to force her to have sex but she got away. After Angie passed out, appellant rolled her over and again tried to sodomize her.
Dr. Rueschenberg diagnosed appellant as suffering from Paraphilia not otherwise specified (NOS) with nonconsenting females. Dr. Selby had initially diagnosed appellant with Paraphilia NOS with nonconsenting persons but his revised diagnosis at the time of trial was sexual sadism, another type of Paraphilia. Both believed appellant to have volitional impairment.
The experts testified regarding their opinions of appellant's risk of reoffense based upon the Static 99, an actuarial risk assessment, and various other factors. Appellant's Static 99 score indicated a high risk of sexual recidivism, specifically a 39 percent probability of sexually reoffending within five years and a 45 percent probability of reoffending within 10 years. His risk of reoffense was 27 percent in five years and 34 percent in 10 years under a more recent study.
Both experts found that appellant's age was not a protective factor. Dr. Rueschenberg explained her reasoning, which was that appellant was not yet 60, the age at which research showed that the recidivism risk begins to decline, a recent assault committed by appellant while in custody indicated he was not yet incapacitated, and the high number of victims indicated that appellant's Paraphilia was more entrenched. Dr. Selby's opinion was predicated upon the absence of any change in the way appellant viewed the world, saw women, and obtained sexual satisfaction. Appellant was 58 years old at the time of trial.
Dr. Rueschenberg was very confident that appellant's mental disorder of Paraphilia affected his emotional and volitional capacity and predisposed him to commit criminal sexual acts. In Dr. Rueschenberg's opinion, appellant's acts of reoffense were likely to be predatory, that is appellant would likely "target casual acquaintances or female strangers." Dr. Rueschenberg determined that appellant met the criteria for being an SVP.
Dr. Selby also concluded that appellant met the criteria for being an SVP. In his opinion, appellant had a mental illness that predisposed him to commit future sexual crimes and he was likely to commit another sexual offense if released into the community. Dr. Selby was very confident that appellant was likely to reoffend.
Both of appellant's expert witnesses, Dr. Douglas Korpi and Dr. Jeremy Coles, diagnosed appellant with Paraphilia NOS and believed appellant was volitionally impaired because of this disorder. But both believed appellant was not likely to reoffend.
Dr. Korpi discussed the research showing that age is a protective age factor after age 60 but recognized that appellant was only 58. Nevertheless, Dr. Korpi gave appellant the benefit of the doubt and treated age as a protective factor since the research was not that exacting. The sole reason Dr. Korpi found appellant did not meet the criteria for being an SVP was age. He testified that the Static 99 put appellant in the high risk category for reoffense but it did not correct for age.
Dr. Coles concluded that, even though appellant's score on the Static 99 placed him in the high risk category, appellant was not likely to reoffend based upon appellant's age and health complications. On cross-examination, Dr. Coles was asked about the underlying crimes and described them. He confirmed that he had considered the incidents in forming his opinion. Dr. Coles agreed that appellant's commission of new crimes while on probation and parole reflected a problem with volitional control. He acknowledged that appellant's health conditions did not physically prevent appellant from committing future sex crimes and that sexual disorders are chronic and typically do not go away.
Following trial, a jury found true the allegation that appellant was an SVP within the meaning of section 6600. The trial court ordered appellant to be committed for an indeterminate term to the custody of the Department of Mental Health for appropriate treatment and confinement. (§ 6604.)
B. Standardized Assessment Protocol
Section 6601, subdivision (c), requires the State Department of Mental Health (DMH) to develop and update a "standardized assessment protocol" (protocol). The protocol must "require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders." (Ibid.) "Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (Ibid.) Involuntary commitment proceedings under the SVPA are initiated only after two professional mental health evaluators, designated by the Director of Mental Health, agree that an individual potentially subject to the Act meets the criteria for being an SVP based upon the protocol. (§ 6601, subds. (c)-(f), (h); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894, 903-904, 909 (Ghilotti).)
"[S]ection 6601, subdivision (c), says the protocol 'shall include' the enumerated risk factors, but does not say the enumerated factors are exclusive. Thus, insofar as the protocol permits, the evaluators may consider any factor which, in their professional judgment, is relevant to the ultimate issue whether the person is a substantial danger to reoffend if free in the community without any conditions, supervision, monitoring, or mandatory treatment in the Director's custody." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 927.)
Appellant now challenges the protocol as an invalid regulation adopted in violation of the Administrative Procedure Act (APA). He contends that, as a result, the trial court lacked authority and fundamental jurisdiction to proceed on the SVP petition. Appellant further maintains that his claim was not forfeited by a failure to object below.
On appeal, respondent does not argue that the protocol is not a regulation or is exempt from the rulemaking provisions of the APA (Gov. Code, § 11340 et seq.). (See Gov. Code, § 11340.9.) But respondent maintains that appellant forfeited his claims by not raising them below and, even if appellant's claims are cognizable, the trial court was not divested of fundamental jurisdiction to proceed, there is no prejudice requiring reversal and dismissal of the petition is not an appropriate remedy.
"The APA subjects proposed agency regulations to certain procedural requirements as a condition to their becoming effective. Pursuant to the APA, '[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in 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....' (Gov. Code, § 11340.5, subd. (a).)" (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 332.)
"State agency" generally "includes every state office, officer, department, division, bureau, board, and commission." (Gov. Code, §§ 11000, 11342.520.) On appeal, it is not disputed that the DMH is a state agency.
Government Code section 11342.600 broadly defines the term "regulation" to mean "every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure." "A regulation subject to the APA... has two principal identifying characteristics. [Citation.] First, the agency must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided. [Citation.] Second, the rule must 'implement, interpret, or make specific the law enforced or administered by [the agency], or... govern [the agency's] procedure.' [Citation.]" (Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571.)
" 'If a rule constitutes a "regulation" within the meaning of the APA (other than an "emergency regulation," which may not remain in effect more than 120 days) it may not be adopted, amended, or repealed except in conformity with "basic minimum procedural requirements" (Gov.Code, § 11346, subd. (a)) that are exacting. The agency must give the public notice of its proposed regulatory action (id., §§ 11346.4, 11346.5); issue a complete text of the proposed regulation with a statement of the reasons for it (id., § 11346.2, subds. (a), (b)); give interested parties an opportunity to comment on the proposed regulation (id., § 11346.8); respond in writing to public comments (id., §§ 11346.8, subd. (a), 11346.9); and forward a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law (id., § 11347.3, subd. (b)), which reviews the regulation for consistency with the law, clarity, and necessity. (Id., §§ 11349.1, 11349.3.) Any regulation or order of repeal that substantially fails to comply with these requirements may be judicially declared invalid. (Id., § 11350.)' [Citation.] The procedural requirements of the APA 'shall not be superseded or modified by any subsequent legislation except to the extent that the legislation shall do so expressly.' (Gov.Code, § 11346, subd. (a); see also Voss v. Superior Court (1996) 46 Cal.App.4th 900, 909...; State Water Resources Control Bd. v. Office of Admin. Law (1993) 12 Cal.App.4th 697, 703-704....)" (Morning Star Co. v. State Bd. of Equalization, supra, 38 Cal.4th at p. 333.)
A noncompliant regulation is referred to as an "underground regulation." (Cal.Code Regs., tit. 1, § 250; see People v. Medina (2009) 171 Cal.App.4th 805, 813-814.) A regulation not promulgated in accordance with the APA is void. (Tidewater Marine Western, Inc. v. Bradshaw, supra, 14 Cal.4th at pp. 561, 572.)
In August 2008, California's Office of Administrative Law (OAL) determined that certain provisions in the Clinical Evaluator Handbook and Standardized Assessment Protocol (2007) issued by the DMH met the definition of regulation as defined in Government Code section 11342.600 and should have been adopted pursuant to the APA. (2008 OAL Determination No. 19, pp. 1, 3, 13 [http://www.oal.ca.gov/pdfs/ determinations/2008/2008_OAL_Determination_19.pdf].) Its conclusion did not mean that the protocol had misinterpreted the SVPA or that it was unprofessional. The OAL's Determination specifically stated that it was not evaluating the wisdom of the protocol and that it had "neither the legal authority nor technical expertise to evaluate the underlying policy issues...." (Id. at p. 1.)
We granted appellant's request to take judicial notice of the 2008 OAL determination. (Evid. Code, §§ 452, 459.)
We conclude that appellant forfeited any claim that the assessment protocol constituted an invalid regulation on appeal by failing to object below. "As a general rule, only 'claims properly raised and preserved by the parties are reviewable on appeal.' (People v. Scott (1994) 9 Cal.4th 331, 354....)" (People v. Smith (2001) 24 Cal.4th 849, 852.) "The forfeiture doctrine is a 'well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been--but were not--raised in the trial court. [Citation.]' [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) "As the United States Supreme Court recognized in United States v. Olano, supra, 507 U.S. at page 731, 113 S.Ct. 1770, ' "[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' [Citations] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citations]." (In re Sheena K. (2007) 40 Cal.4th 875, 880-881.)
Appellant contends that the forfeiture rule should not be applied because the OAL issued its determination after his SVP trial and the rule does not apply when the "controlling law at the time of trial permitted the court's action." "Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.]" (People v. Welch (1993) 5 Cal.4th 228, 237-238.) Thus, the forfeiture rule does not apply "when the pertinent law later [has] changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change." (People v. Turner (1990) 50 Cal.3d 668, 703.) But, in this case, statutory law at the time of trial defined the term "regulation" and mandated that regulations comply with the APA. (See Gov. Code, §§ 11340.5, subd. (a), 11342.600.) Appellant has not cited any definitive decision determining that the DMH's protocol was not a regulation or was exempt from the APA, upon which his counsel might have been relying in failing to raise the protocol issue.
Moreover, the California Supreme Court recognized prior to appellant's trial that, although "[t]he SVPA contains no express provision for judicial review of the reports of designated evaluators to determine whether they are infected with legal error (Ghilotti, supra, 27 Cal.4th at p. 910), the superior court "has authority to provide legal oversight of an administrative determination which involves the exercise of discretion or judgment subject to statutory standards, and which has a legal effect on proceedings properly before the court" (id. at p. 911, fn. omitted) and may review evaluators' reports to determine whether a report is infected with material legal error affecting the validity of a recommitment petition (id. at p. 911, fn. 8). We see nothing that prevented appellant from raising the protocol issue in the trial court.
Appellant also suggests that his claim involves a pure question of law not subject to the forfeiture rule on appeal. (See Hale v. Morgan (1978) 22 Cal.3d 388, 394 ["a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts"].) Contrary to this assertion, the question whether initiation of this SVP proceeding was procedurally defective is not a pure question of law but rather requires interpretation and application of the law to facts outside the appellate record. (See Ward v. Taggart (1959) 51 Cal.2d 736, 742 ["party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial' "]; cf. In re Sheena K., supra, 40 Cal.4th at p. 887 [exception to forfeiture rule applies to facial constitutional defect apparent in a probation condition that is correctable without examining sentencing record and without remanding for further factual findings]; People v. Scott (1994) 9 Cal.4th 331, 354 [exception to forfeiture rule applies to "unauthorized sentence" that cannot "lawfully be imposed under any circumstance" but rule applies to "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner"].) In addition, appellant's claim regarding the protocol does not involve a constitutional or fundamental right that might warrant discretionary review despite failure to object in the trial court. (See In re Sheena K., supra, 40 Cal.4th at p. 887, fn. 7.) There is no suggestion that appellant was deprived of a fair trial as a result of any failure to comply with the APA.
Further, even assuming the assessment protocol used by the evaluators constituted an invalid regulation, the trial court did not lack jurisdiction to proceed in the fundamental sense. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.] Familiar to all lawyers are such examples as these: A state court has no jurisdiction to determine title to land located outside its territorial borders, for the subject matter is entirely beyond its authority or power. [Citation.] A court has no jurisdiction to adjudicate upon the marital status of persons when neither is domiciled within the state. [Citations.] A court has no jurisdiction to render a personal judgment against one not personally served with process within its territorial borders, under the rule of Pennoyer v. Neff, 95 U.S. 714 [24 L.Ed. 565]. [Citation.] A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision. [Citation.]" (Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 288.)
"Less fundamentally, 'jurisdiction' refers to a court's authority to act with respect to persons and subject matter within its power. [Citation.] Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. [Citations.] By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver (i.e., the intentional relinquishment of a known right) [citation] and forfeiture (i.e., the loss of a right through failure of timely assertion) [citation]. [Citations.]" (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) The issue whether the SVP assessment protocol constituted an invalid regulation because it was not adopted in compliance with the ADA does not implicate fundamental jurisdiction in the strict sense.
For the future, any protocol problem can be rectified by either a legislative enactment exempting the Department of Mental Health's standardized assessment protocol from the strictures of the APA (cf. Gov. Code, § 27491.41 [standardized autopsy protocol for infants dying unexpectedly, which the State Department of Health Services is statutorily required to develop, is statutorily exempted from procedural requirements pertaining to the adoption of administrative rules and regulations]) or by compliance with the APA (cf. Morning Star Co. v. State Bd. of Equalization, supra, 38 Cal.4th at p. 342 [Department of Toxic Substances Control allowed "a reasonable opportunity to correct the deficiency in its hazardous material fee regulations by subjecting them to APA procedures"].)
C. Evidentiary Objections
1. Exclusion of Evidence of Conditions of Parole Release
In a motion in limine, appellant requested a ruling that his defense expert Dr. Korpi be permitted to testify at trial that appellant's risk of reoffending would be mitigated by conditions of parole. Respondent argued that evidence of parole conditions was irrelevant, citing People v. Krah (2003) 114 Cal.App.4th 534, and the trial court agreed.
The trial court subsequently stated for the record that there had been an issue "whether or not Dr. Korpi could consider and testify as the basis for his opinion [that] Mr. Castellanos would be paroled if released, and that supervision on parole would certainly be a factor in Dr. Korpi's opinion that [it was] not likely that Mr. Castellanos will reoffend...." The court explained that it had told counsel that "Dr. Korpi would have to reassess his position and... not include the fact that Mr. Castellanos would be on supervision by the parole department." Dr. Korpi's testimony at trial complied with the court's ruling.
Appellant now insists that Dr. Korpi should have been permitted to testify regarding the factor of parole supervision as well as appellant's age in assessing the risk of reoffense. He emphasizes the heightened degree of parole supervision for sex offenders under current law. He seeks to distinguish People v. Krah on the ground that Krah sought to introduce "freestanding" "evidence of the terms and conditions of parole that would have been imposed on him if he were released from custody" (People v. Krah, supra, 114 Cal.App.4th at p. 544) while in this case his expert was prevented from considering a factor relevant to the expert's assessment of the risk of reoffense. We are not persuaded.
Krah held that evidence of the terms and conditions of a parole release was irrelevant to the jury's determination. (114 Cal.App.4that p. 544.) The appellate court explained: "[T]he relevant inquiry is whether the defendant's mental condition makes it likely he will reoffend. Evidence that the defendant's condition does not preclude him from voluntarily pursuing treatment if unconditionally released would be relevant under this test. (Ghilotti, supra, 27 Cal.4th at p. 927....) However, evidence that the defendant would be required to comply with terms and conditions of parole would not be relevant. Such evidence has no bearing on the determination whether the defendant has a disorder which makes it likely he will reoffend; it does not relate to the nature of the defendant's disorder or reflect in any way his willingness or ability to pursue treatment voluntarily." (Id. at p. 546.)
Nothing in the SVPA, or in the case law interpreting it, suggests that involuntary supervision or control of a person under non-SVPA law has any relevance to an individual's risk of reoffense due to a diagnosed mental disorder. In Ghilotti, supra, 27 Cal.4th 888, an issue before the Supreme Court was whether under section 6601, subdivision (d), "evaluators may consider, as a factor reducing the likelihood of reoffense, the chances that a person who is substantially dangerous if untreated will voluntarily accept community treatment to ameliorate the substantial danger." (Id. at p. 925.) The Supreme Court observed that "section 6601, subdivision (d), like the SVPA in general, asks the broader question whether, as the result of a diagnosed mental disorder, the person presents a substantial danger of reoffense if released without conditions, or whether instead he is safe only if restrained, supervised, and treated involuntarily under the Director's custody." (Id. at pp. 926-927.)
The court in Ghilotti determined that "insofar as the protocol permits, the evaluators may consider any factor which, in their professional judgment, is relevant to the ultimate issue whether the person is a substantial danger to reoffend if free in the community without any conditions, supervision, monitoring, or mandatory treatment in the Director's custody." (Id. at p. 927.) Thus, one factor might be whether "there is practicable treatment, readily available in the community, which would eliminate or control the impulses, and the person's current mental condition is such that he or she can be, and is, willing and able to pursue such treatment as long as it is needed." (Ibid.) "Common sense suggests that the pertinent factors should include (1) the availability, effectiveness, safety, and practicality of community treatment for the particular disorder the person harbors; (2) whether the person's mental disorder leaves him or her with volitional power to pursue such treatment voluntarily; (3) the intended and collateral effects of such treatment, and the influence of such effects on a reasonable expectation that one would voluntarily pursue it; (4) the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone; (5) the person's expressed intent, if any, to seek out and submit to any necessary treatment, whatever its effects; and (6) any other indicia bearing on the credibility and sincerity of such an expression of intent." (Id. at p. 929.) The question is whether the person is "prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community." (Ibid., italics added.)
"A prior sex offender should not be classified as an SVP if that person can reliably be expected voluntarily to accept treatment that will control predatory urges and remove the threat to the safety of others. However, the person is an SVP if supervised involuntary treatment is necessary to provide that protection, even if that involuntary treatment is pursuant to other provisions of law that might eliminate the danger to others. (People v. Calderon (2004) 124 Cal.App.4th 80... [evidence of the appropriateness of an alternative mandatory commitment pursuant to the Lanterman-Petris-Short Act properly excluded from determination of SVP status].)" (People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 197, see id. at p. 188 [proof that "public safety require[d] either... confinement in a secure facility or supervised community placement" was sufficient for SVP recommitment of person eligible for placement in conditional, supervised release program].)
We agree that an expert opinion regarding the general risk of appellant reoffending in light of involuntary parole supervision and control would have been irrelevant and inadmissible because such opinion would not be probative on the material issue whether appellant is an SVP as defined by law. (See Evid. Code, § 210; §§ 6600 [an SVP 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"], 6604 [trier of fact must "determine whether, beyond a reasonable doubt, the person is a sexually violent predator"]; People v. Roberge (2003) 29 Cal.4th 979, 987 ["phrase 'likely [to] engage in sexually violent behavior' in section 6600, subdivision (a), should be given the same meaning as the phrase 'likely to engage in acts of sexual violence without appropriate treatment and custody' in section 6601, subdivision (d)"].) "In determining the admissibility of any expert witness testimony, the threshold question is not simply whether the subject 'is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact....' (§ 801, subd. (a).) Rather, as with all evidence, the first inquiry is whether the testimony is relevant, i.e., whether it has 'any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action,' including the credibility of a witness. (§ 210.) Unless and until the proponent demonstrates that an expert's testimony has the requisite relationship to a disputed fact, it is irrelevant and cannot assist the trier of fact." (People v. Brown (2004) 33 Cal.4th 892, 909; see Evid. Code, §§ 350 ["No evidence is admissible except relevant evidence"]; see also Smith v. Workmen's Compensation Appeals Bd., Los Angeles County (1969) 71 Cal.2d 588, 593 [an expert's opinion which does not rest upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial evidence].)
2. Out- of-Court Statements Regarding Non-predicate Offenses Relied upon By Experts
Appellant is now claiming that the out-of-court statements regarding crimes not resulting in convictions were "not sufficiently reliable for the experts to base their testimony on them or to describe the incidents in their testimony." He asserts that the testimony of the government's experts regarding the 1978 Carolyn incident, the 1979 Francine incident, and the charged 1987 sodomy against Angie was inadmissible because the victims' statements upon which they relied were unreliable hearsay.
In a motion in limine, appellant sought to exclude, for all purposes, evidence of "investigations not resulting in arrests," "arrests not resulting in convictions," and "dismissed charges," arguing that such hearsay evidence was unreliable. He further asserted, without any analysis, that such evidence should be excluded under Evidence Code sections 350 ["No evidence is admissible except relevant evidence"] and 352 [judicial discretion to exclude evidence more prejudicial than probative]. Appellant's pretrial motion was not directed at specified documents or out-of-court statements but rather to all references to particular incidents.
The sex offenses identified in the motion included the 1978 incident involving Carolyn who later became his wife, the 1979 incident involving Francine who reportedly was raped after being picked up in a Greyhound bus depot, and the charged 1987 sodomy of a minor named Angie of which appellant was acquitted during prosecution of a 25-count information alleging multiple sex and other offenses involving Angie and two other minors. The motion sought to prevent the government from presenting evidence of the incidents "under the guise of informing an expert's opinion" and to exclude expert testimony regarding those incidents. The court denied the motion.
At trial, Dr. Nancy Rueschenberg indicated that she relied on Angie's account even though appellant was not convicted of sodomy because the failure to satisfy the reasonable doubt standard of proof in a criminal prosecution does not necessarily mean the incident did not occur. Defense expert Dr. Douglas Korpi testified that he did not necessarily assume that everything in a police report is true and he did not "take everything that a victim says at face value" but applied "common sense" to consider whether a victim's statement "hang[s] together." He explained that he gave more weight to reported incidents leading to convictions and gave less weight to police reports not followed by convictions. Dr. Korpi did not give the 1978 incident involving Carolyn "a whole lot of weight" because there were no charges and no disposition and it was not established that "any of this occurred" and "[i]t might be true, it might not." Dr. Korpi gave the 1979 incident involving Francine "a little more credibility" because "there was a parole [sic] violation" even though there was no conviction.
"An expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably... be relied upon' for that purpose. (Evid.Code, § 801, subd. (b); In re Fields (1990) 51 Cal.3d 1063, 1070....)" (People v. Montiel (1993) 5 Cal.4th 877, 918; see People v. Carpenter (1997) 15 Cal.4th 312, 410 ["an expert may base his opinion on hearsay"].) The reliability of matters relied upon by an expert rendering an opinion must be distinguished from the issues of reliability inherent in the admission of out-of-court statements offered for the truth of the matter stated. (See Evid. Code, § 1200, subd. (a) [defining hearsay].) "Largely because the declarant is absent and unavailable for cross-examination under oath, hearsay evidence is less reliable than live testimony. [Citations.]" (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608-609.) Absent an exception, hearsay is generally inadmissible. (Evid. Code, § 1200, subd. (b).) But "a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay." (Sen. Com. on Judiciary com., 29B, Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1200, p. 4.)
Appellant repeatedly refers us to section 6600, subdivision (a)(3), which establishes a multiple level hearsay exception for certain documentary evidence related to any predicate conviction. (See People v. Otto (2001) 26 Cal.4th 200, 208.) The section states in pertinent part: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (Italics added.) This hearsay exception is unnecessary to the admission of expert testimony adduced for the nonhearsay purpose of explaining the reasons for an opinion.
Appellant does not suggest on appeal that documentary evidence was improperly admitted.
"In regard to some matters of expert opinion, an expert must, if he is going to give an opinion that will be helpful to the jury, rely on reports, statements, and other information that might not be admissible evidence." (Cal. Law Revision Com. com., 29B, Pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 801, p. 25.) In those instances, "the adverse party also will have its expert who will be able to check the data relied upon by the adverse expert" (ibid.) and can offer its own expert testimony. The adverse party will also be able to fully cross-examine the expert. (Evid. Code, § 721, subd. (a) ["a witness testifying as an expert... may be fully cross-examined as to... the subject to which his or her expert testimony relates, and... the matter upon which his or her opinion is based and the reasons for his or her opinion"].)
Evidence Code section 801, subdivision (b), generally requires that "the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which his testimony relates." (Cal. Law Revision Com. com., 29B, Pt. 3A West's Ann. Evid. Code (2009 ed.) foll. § 801, p. 26.) "In large measure, this assures the reliability and trustworthiness of the information used by experts in forming their opinions." (Ibid.) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070... [expert witness can base 'opinion on reliable hearsay, including out-of-court declarations of other persons']; see Fed. Rules Evid., rule 703, 28 U.S.C.; 2 McCormick on Evidence, supra, § 324.3, pp. 372-373.)" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) As a matter of due process, however, a particular out-of-court statement might be insufficiently reliable, for reasons other than merely being extrajudicial, to be considered by mental health experts in SVP proceedings. (See People v. Otto, supra, 26 Cal.4th at pp. 209-214.)
In addition to seeking to discredit the opposing expert, a party may request a limiting instruction indicating that the opposing expert's out-of-court statements were not admitted for their truth. (See Evid. Code, § 355 [limiting instruction is available upon request].) "Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. (Coleman, supra, 38 Cal.3d at p. 92...)" (People v. Montiel, supra, 5 Cal.4th at p. 919; see Evid. Code, § 355 [limiting instruction available upon request].) Where a limiting instruction is insufficient to avoid undue prejudice, a trial court may exercise its discretion to "exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. (Coleman, supra, 38 Cal.3d at pp. 91-93.)" (People v. Montiel, supra, 5 Cal.4th at p. 919.)
Appellant's counsel interposed a hearsay objection to Dr. Selby's testimony relating an officer's statement, contained in a police report regarding the 1978 rape of Carolyn, that the officer had observed a red mark around Carolyn's face. The trial court explained to the jury that out-of-court statements were not being offered for their truth but merely as a basis of expert opinion. In its jury instructions, the trial court admonished that evidence admitted for a limited purpose may be considered only for that purpose and no other.
"When expert opinion is offered, much must be left to the trial court's discretion. (People v. Nicolaus, supra, 54 Cal.3d at p. 582.)" (People v. Carpenter (1997) 15 Cal.4th 312, 403.) "[D]isputes in this area must generally be left to the trial court's sound judgment." (People v. Montiel, supra, 5 Cal.4th at p. 919.) The deferential abuse of discretion standard applies to review of trial court rulings under Evidence Code section 801 (see People v. Mickey (1991) 54 Cal.3d 612, 688) and Evidence Code section 352 (People v. Kipp (2001) 26 Cal.4th 1100, 1121).
In support of his in limine motion, appellant failed to establish that the out-of-court statements upon which the government's expert witnesses were relying were not the type of matters reasonably relied upon by mental health professionals. (Evid. Code, § 801, subd. (b); see People v. Miller (1994) 25 Cal.App.4th 913, 917 [qualified mental health professional may refer to and consider the underlying probation report in expressing an opinion that the prisoner is an MDO]; see also People v. Mickey, supra, 54 Cal.3d 612, 688 [information provided to psychiatrist by defendant's former wife during telephone interview could be considered in forming psychiatric opinion]; People v. Williams (2009) 170 Cal.App.4th 587, 622 [gang experts may rely upon information from police reports in forming their opinions]; but see People v. Dodd (2005) 133 Cal.App.4th 1564, 1569 [parole report's "brief and conjectural reference" to molestation incident could not be considered in forming expert opinion that person qualified as an MDO]). Neither did appellant establish that the prospective expert testimony regarding those statements was irrelevant or inadmissible for the nonhearsay purpose of explaining expert opinion.
Although the in limine motion broadly challenged all out-of-court statements as unreliable, appellant did not specifically argue or show that any particular victim statement contained in a particular document lacked sufficient indicia of reliability to satisfy due process or that due process required the court to exclude expert testimony in the form of an opinion based upon such statement (see Evid. Code, §§ 801, subd. (b), 803). He made no showing that all expert testimony regarding the specified incidents should be entirely excluded under Evidence Code section 352. Consequently, the appellate record fails to demonstrate that the trial court abused its discretion by denying appellant's in limine motion for a blanket exclusion of all out-of-court statements concerning the identified incidents.
Appellant argues on appeal that admission of the expert testimony regarding crimes of which he was not convicted contravened due process rights under the United States and California Constitutions. This issue is cognizable only insofar as "the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process." (People v. Partida (2005) 37 Cal.4th 428, 435.)
3. Cumulative Prejudice
Appellant contends reversal is required because of the cumulative prejudice arising from the asserted evidentiary errors. We have rejected his assignments of error and, therefore, there can be no cumulative prejudice.
D. Constitutional Challenges
Appellant argues that the amended SVPA violates the due process, equal protection, ex post facto and double jeopardy provisions of the state and federal Constitutions.
These issues are pending before the Supreme Court in People v. McKee, review granted July 9, 2008, S162823, People v. Johnson, review granted Aug. 13, 2008, S164388, People v. Riffey, review granted Aug. 20, 2008, S164711, People v. Boyle, review granted Oct. 1, 2008, S166167, People v. Garcia, review granted October 16, 2008, S166682, People v. Force, review granted April 15, 2009, S170831.
1. Due Process
Appellant contends that California's SVPA, which now provides for an indeterminate term for those persons determined to be SVP's (§ 6604), violates due process because it "no longer requires the government to prove periodically by at least clear and convincing evidence current dangerousness." He asserts that the amended Act does not adequately ensure release of persons who no longer qualify as SVP's.
There is no dispute in this case that persons committed under this act are entitled to the protection of due process. "[F]or the ordinary citizen, commitment to a mental hospital produces 'a massive curtailment of liberty,' [citation], and in consequence 'requires due process protection.' [Citations.]" (Vitek v. Jones (1980) 445 U.S. 480, 491-492, [100 S.Ct. 1254].) "It is clear that 'commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.' Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979)...." "Therefore, a State must have 'a constitutionally adequate purpose for the confinement.' O'Connor v. Donaldson, 422 U.S. 563, 574, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975)." (Jones v. U.S. (1983) 463 U.S. 354, 361 [103 S.Ct. 3043].)
"Once it is determined that due process applies, the question remains what process is due.... [D]ue process is flexible and calls for such procedural protections as the particular situation demands. '(C)onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961)." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S.Ct. 2593].) "To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: [¶] 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)." (Zinermon v. Burch (1990) 494 U.S. 113, 127 [110 S.Ct. 975].)
As this court has previously stated, the significance of the private interest of an individual subjected to the SVPA "cannot be understated since it is 'the most elemental of liberty interests' (Hamdi v. Rumsfeld (2004) 542 U.S. 507, 529, 124 S.Ct. 2633, 159 L.Ed.2d 578), the fundamental right of a citizen 'to be free from involuntary confinement by his own government without due process of law.' (Id. at p. 531, 124 S.Ct. 2633.)" (People v. Litmon (2008) 162 Cal.App.4th 383, 399.) "To the extent Proposition 83 has increased the burden upon liberty interests by requiring only one predicate offense and imposing an indeterminate term of commitment, it has increased the weight of the first factor," the private interest affected by official action. (People v. Allen, supra, 44 Cal.4th at p. 863, fn. 15.)
As this court previously observed in People v. Litmon, supra,162 Cal.App.4th at page 401, "the state has no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others. (Addington v. Texas, supra, 441 U.S. at p. 426, 99 S.Ct. 1804; cf. Foucha v. Louisiana, supra, 504 U.S. at pp. 80-82, 112 S.Ct. 1780 [state had no legitimate interest in continued detention of insanity acquittee who was no longer mentally ill]; O'Connor v. Donaldson (1975) 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 ['State cannot constitutionally confine without more a nondangerous [mentally ill] individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends'].)" In "O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), [the United States Supreme Court] held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, 'it could not constitutionally continue after that basis no longer existed.' Id., at 575, 95 S.Ct., at 2493." (Foucha v. Louisiana (1992) 504 U.S. 71, 77 [112 S.Ct. 1780].)
"The Due Process Clause 'requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.' Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual's mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. [Citations.] And 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, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review of the patient's suitability for release." (Jones v. U.S. (1983) 463 U.S. 354, 368 [103 S.Ct. 3043].) California has now chosen an indeterminate commitment term for sexually violent predators with annual reevaluations by the DMH. (§§ 6604, 6605.)
It is clear, however, that an SVP is constitutionally entitled to release when the individual is no longer suffering from a mental disorder or is no longer dangerous. Consequently, we must examine "the risk of an erroneous deprivation" of a committed person's liberty interest "through the procedures used." (See Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S.Ct. 893].)
Appellant maintains that the amended SVPA violates due process by making the commitment indeterminate and placing the burden on the committed person "to show by the preponderance of the evidence that his condition has 'so changed' that release would not endanger the safety of others." Insofar as appellant may be challenging the imposition of an indeterminate term without regard to the post-commitment procedures, we reject this contention. The two-year commitment term formerly provided by the Act is not sacrosanct. (See Addington v. Texas (1979) 441 U.S. 418, 419-420, 433 [99 S.Ct. 1804] [a standard of proof "equal to or greater than the 'clear and convincing' standard" is required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital]; cf. Jones v. U.S., supra, 463 U.S. 354, 366-367 [rejecting contention that indefinite commitment of petitioner, who was committed to a mental hospital upon being acquitted of a criminal offense by reason of insanity, was unconstitutional because the proof of insanity was based only on a preponderance of the evidence, as compared to civil-commitment requirement of proof by clear and convincing evidence].) An "indeterminate term" is not the equivalent of a "life" term.
The vital question is the adequacy of the procedural safeguards aimed at preventing continued commitment of persons who no longer meet the SVP criteria. We conclude that the actual duration of any indeterminate commitment term under the amended SVPA remains closely tied to the committed person's continuing qualification as an SVP. Our conclusion rests upon the fact that the post-commitment provisions come into play only after a person has been found to be an SVP beyond a reasonable doubt (§ 6604) and that the law provides multiple opportunities for reassessment and release of the committed person. Importantly, the mandated annual examination and report procedures will ordinarily trigger a new hearing at which the state has the burden of proof beyond a reasonable doubt if the committed person is found to no longer meet SVP criteria at the examination (§ 6608) and the DMH has a statutory obligation to seek habeas relief for the committed person if it "has reason to believe that [the person] is no longer a sexually violent predator." (§ 6605, subds. (a)-(f).)
The SVPA mandates: "A person found to be a sexually violent predator and committed to the custody of the State Department of Mental Health shall have a current examination of his or her mental condition made at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator 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. The Department of Mental Health shall file this periodic report with the court that committed the person under this article." (§ 6605, subd. (a), italics added.) A copy of the annual report must be served on the committed person. (Ibid.) Any qualified expert or professional person retained by the committed person to examine the person, or appointed by the court if the person is indigent, is entitled to "access to all records concerning the person." (Ibid.)
"If the Department of Mental Health determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community," the director must authorize the person committed as an SVP to "petition the court for conditional release to a less restrictive alternative or for an unconditional discharge." (§ 6605, subd. (b), italics added.) This authorization is not discretionary.
Upon receiving such a petition, the trial court must "order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Ibid.) "If the court at the show cause hearing determines that probable cause exists to believe that the committed person's 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," then the court must "set a hearing on the issue." (§ 6605, subd. (c).)
Although the term "probable cause" as used in section 6605 is not defined, " 'the rule of law is well established that where the Legislature uses terms already judicially construed, the "presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts." ' (City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 620....)" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251.) "Probable cause" as used in section 6602 "entails a decision whether a reasonable person could entertain a strong suspicion that the offender is an SVP." (Id. at p. 252, italics omitted; see id. at p. 236 ["the section 6602 hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the petitioner has satisfied all the elements required for a civil commitment as an SVP"].) We can safely assume that the Legislature, by subsequently using the same "probable cause" term in section 6605, intended the superior court to determine at the show cause hearing whether a reasonable person could entertain a strong suspicion that the committed person is no longer an SVP. (See § 6605, subd. (c).)
Further, it is reasonable to expect that section 6605's "probable cause" standard will ordinarily be satisfied if the annual report produced by the DMH finds that the committed person does not currently meet the definition of an SVP since the agency presumably has the expertise and access to current information necessary to make such a finding. The DMH is charged with providing an SVP committed to its custody with appropriate treatment for his or her diagnosed mental disorder (§§ 6604, 6606, subd. (a)) and the DMH must use professionals for its annual evaluation (§ 6605 ["The [annual] report shall be in the form of a declaration and shall be prepared by a professionally qualified person"]).
Any future judicial interpretation of the amended SVPA will presumably be informed by the rule of statutory construction requiring courts to avoid interpretations raising constitutional doubts. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509.)
Once the trial court determines there is probable cause, the committed person has the right to demand a jury trial and to have his own experts evaluate him. (§ 6605, subd. (d).) "At the hearing, the committed person shall have the right to be present and shall be entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding." (Ibid.) Importantly, as with the initial commitment trial, the state has the burden of proof. It must prove "beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (Ibid.) If the burden of proof is not met, the committed person must be "unconditionally released and unconditionally discharged." (§ 6605, subd. (e).)
In addition, if "the State Department of Mental Health has reason to believe that a person committed to it as a sexually violent predator is no longer a sexually violent predator," it must "seek judicial review of the person's commitment pursuant to the procedures set forth in Section 7250 [writ of habeas corpus] in the superior court from which the commitment was made." (§ 6605, subd. (f).) "If the superior court determines that the person is no longer a sexually violent predator, [the person must] be unconditionally released and unconditionally discharged." (Ibid.) Thus, whether or not the committed person files an authorized section 6605 petition, it appears that DMH must generally seek habeas relief for the committed person following an annual report concluding that the person no longer meets the definition of an SVP. Moreover, habeas corpus proceedings can be, if necessary, speedily resolved. (See People v. Standish (2006) 38 Cal.4th 858, 887; People v. Romero (1994) 8 Cal.4th 728, 744.)
Section 7250 provides in part: "Any person who has been committed is entitled to a writ of habeas corpus, upon a proper application made by the State Department of Mental Health or the State Department of Developmental Services, by that person, or by a relative or friend in his or her behalf to the judge of the superior court of the county in which the hospital is located...."
See footnote 9, above.
The Director of Mental Health is also required to file a report and recommendation for conditional release whenever the Director determines that a committed person's "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." (§ 6607, subd. (a).) This triggers a judicial conditional release hearing "in accordance with the procedures set forth in Section 6608." (§ 6607, subd. (b).)
Under section 6608, committed persons continue to have the right to bring a petition for unconditional discharge or conditional release without authorization: "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).) A person petitioning for conditional release or unconditional discharge under section 6608 is entitled to assistance of counsel. (Ibid.)
Section 6608 does, however, erect a number of procedural hurdles. "If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted." (§ 6608, subd. (a).) Section 6608 directs the court to "endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds" and, if frivolous, to "deny the petition without a hearing." (Ibid.) Also, in a hearing under section 6608, the petitioner has "the burden of proof by a preponderance of the evidence." (§ 6608, subd. (i).) Further, a section 6608 petitioner is not entitled to a hearing until the person "has been under commitment for confinement and care in a facility designated by the Director of Mental Health for not less than one year from the date of the order of commitment." (§ 6608, subd. (c).) "If the court denies the petition to place the person in an appropriate forensic conditional release program or if the petition for unconditional discharge is denied, the person may not file a new application until one year has elapsed from the date of the denial." (§ 6608, subd. (h).)
The burdens and requirements imposed upon a petitioner by section 6608 are an "apparent attempt to deter multiple unsubstantiated requests and to reduce the administrative burden that might otherwise occur...." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1148, fn. 14.) Even if a due process concern might exist if section 6608 were the only avenue for obtaining release, multiple statutory provisions ensure that the duration of SVP commitment bears a reasonable relation to the committed person's continuing qualification as an SVP.
The Act as a whole ensures that the duration of actual commitment under an order of commitment for an indeterminate term is consistent with constitutional due process limits.
2. Equal Protection
Appellant asserts that the SVPA violates equal protection because the indeterminate term is inconsistent with the limited terms provided under other involuntary commitment schemes. The Mentally Disordered Offender (MDO) Act (§ 2960 et seq.) provides for a maximum one-year commitment that may be extended for additional one-year terms. (Pen. Code, §§ 2970, 2972, subd. (c); see People v. Allen (2007) 42 Cal.4th 91, 103.) An initial one-year conservatorship and succeeding one-year conservatorships may be sought under the Lanterman-Petris-Short (LPS) Act. (§§ 5350, 5361.) The statutory scheme for extended detention of juveniles (§ 1800 et seq.) provides for commitment for up to two years and successive recommitment for two year periods. (§ 1802.) An incompetent criminal defendant may be committed for no more than three years or "a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter," before being returned to the committing court. (Pen. Code, §§ 1370, subd. (c)(1); 1370.1. subd. (c)(1).) Appellant maintains that, "[a]t the very least," SVP's are similarly situated to MDO patients since "[b]oth are prisoners nearing the end of their terms" and are "committed because a mental disorder renders them an unacceptable danger to society." He asserts that persons qualifying as SVP's are a subset of those qualifying under the MDO Act.
" ' "The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." ' (In re Gary W. (1971) 5 Cal.3d 296, 303....) 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' [Citation.]" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253; see Lawrence v. Texas (2003) 539 U.S. 558, 579 [123 S.Ct. 2472] ["The Equal Protection Clause of the Fourteenth Amendment 'is essentially a direction that all persons similarly situated should be treated alike' "].)
A person committed under the SVPA plainly is not similarly situated to a criminal defendant confined due to mental incompetence to stand trial. (See Pen. Code, §§ 1367 [incompetent criminal defendants "cannot be tried or adjudged to punishment"]; 1368, subd. [criminal proceedings must be suspended when competency hearing ordered]; 1370.01, subd. (a)(1) ["If the defendant is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent"].) An incompetent criminal defendant may be confined for treatment for the purpose of "promot[ing] the defendant's speedy restoration to mental competence." (See Pen. Code, §§ 1370, subd. (a)(1)(B)(i); 1370.1, subd. (a)(1)(B)(i).) Protection of the public is not the purpose of incompetency proceedings (see People v. Bye (1981) 116 Cal.App.3d 569, 576 [purpose of proceedings to determine a defendant's mental competency is not protection of society in general but rather protection of accused]) and future dangerousness is not a factor in determining the length of confinement (see Pen. Code, §§ 1370, subds. (b), (c); 1370.1, subds. (b), (c); see also Jackson v. Indiana (1972) 406 U.S. 715, 738 [92 S.Ct. 1845] [under principles of due process, "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future"]; In re Davis (1973) 8 Cal.3d 798, 801 ["no person charged with a criminal offense and committed to state hospital solely on account of his incapacity to proceed to trial may be so confined more than a reasonable period of time necessary to determine whether there is a substantial likelihood that he will recover that capacity in the foreseeable future"].)
Neither is an SVP is similarly situated to a person subject to an order for continued detention by the Department of Corrections and Rehabilitation, Division of Juvenile Facilities [formerly Youth Authority] under section 1800 et seq. "The fact that Youth Authority wards committed under section 1800 and adults committed as SVP's or MDO's are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that 'persons committed under California's various civil commitment statutes are similarly situated in all respects. They are not.' (People v. Buffington (1999) 74 Cal.App.4th 1149, 1158....) Although section 1800 is a civil commitment statute, as are the SVPA and the MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the section 1800 extended detention scheme...." (In re Lemanuel C. (2007) 41 Cal.4th 33, 48.)
"In contrast to the SVPA and the MDOA, section 1800 broadly encompasses all youthful offenders committed to the Youth Authority who, if discharged from that facility, 'would be physically dangerous to the public' because of their mental deficiency, disorder, or abnormality. (§ 1800.)" (In re Lemanuel C., supra, 41 Cal.4th at p. 48.) "[T]he SVPA narrowly targets 'a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.' (Stats. 1995, ch. 763, § 1, p. 5921.)" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.) A person committed under the SVPA need not be amenable to treatment. (§ 6606, subd. (b).) The principal purpose of commitment under section 1800 et seq. continues to be "correction and rehabilitation." (§ 1700, see 1802 ["When an order for continued detention is made..., the control of the authority over the person shall continue, subject to the provisions of this chapter"].) The primary purpose of commitment under the SVPA is to protect the public; "treatment is a secondary objective." (People v. Hurtado (2002) 28 Cal.4th 1179, 1192.)
"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 state power." (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.) A finding incorporated into Proposition 83 states that "[a]ccording to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend." (Voter Information Guide, Gen. Elect. (Nov. 6, 2006) text of Prop. 83, § 2, subd. (b), p. 127.) "[T]he Legislature may make reasonable distinctions between its civil commitment statutes based on a showing that the persons are not similarly situated, meaning that those who are reasonably determined to represent a greater danger may be treated differently from the general population." (In re Smith (2008) 42 Cal.4th 1251, 1266.) Persons subject to extended detention under section 1800 et seq. are not similarly situated to SVP's, a group perceived to be especially dangerous, not necessarily amendable to treatment, and less likely to be cured, with regard to the specified length of the commitment term.
For the same reasons, persons subject to one-year conservatorships under the LPS Act are not similarly situated to the select group subject to the SVPA. "Although the LPS Act and the SVPA are both civil commitment statutes, the Legislature enacted these schemes with different purposes in mind. The LPS Act is a comprehensive scheme designed to address a variety of circumstances in which a member of the general population may need to be evaluated or treated for different lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14 day treatment]; § 5300 [180-day commitment for the imminently dangerous]; § 5260 [extended commitment for the suicidal]; § 5350 [30-day temporary conservatorship or one year conservatorship for the gravely disabled].)" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.) "In order to be subject to renewable one-year conservatorships under the LPS Act, one must be found to be gravely disabled either by being manifestly unable to take care of oneself or being in custody on a criminal charge and found incompetent to stand trial and having a mental disorder causing one to be dangerous to others. (§§ 5350, 5008, subd. (h), 5361; see People v. Karriker (2007) 149 Cal.App.4th 763, 774-775...)" (In re Smith, supra, 42 Cal.4th at p. 1268.) "The purpose of conservatorship... is to provide individualized treatment, supervision, and placement." (§ 5350.1) Although a court must consider protection of the public in appointing a conservator for a gravely disabled incompetent criminal defendant (§ 5350, subd. (b)(2)), the charged felony is unproven (§ 5008, subd. (h)(2)). The SVPA, in contrast, is narrowly focused upon "a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders" (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253) and who have been convicted of a sexually violent offense (§ 6600, subd. (a)(1)) and pose "a substantial danger, that is, a serious and well-founded risk, of committing a sexually violent predatory crime if released from custody." (People v. Roberge (2003) 29 Cal.4th 979, 988-989.) The purpose of the SVPA is "to confine and treat such individuals until it is determined they no longer present a threat to society. [Citation.]" (People v. Allen, supra, 44 Cal.4th at p. 857.) LPS conservatees and SVP's are not similarly situated with regard to the perceived dangerousness of these groups.
Section 5008, subdivision (h), defines "gravely disabled" for the purposes of 5350 et seq. as "[a] condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter" or "a condition in which a person, as a result of impairment by chronic alcoholism, is unable to provide for his or her basic personal needs for food, clothing, or shelter" or "[a] condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: [¶] (i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person. [¶] (ii) The indictment or information has not been dismissed. [¶] (iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner." To preserve the law's constitutionality, "every judgment creating or renewing a conservatorship for an incompetent criminal defendant under section 5008, subdivision (h)(2) must reflect written findings that, by reason of a mental disease, defect, or disorder, the person represents a substantial danger of physical harm to others." (Conservatorship of Hofferber, supra, 28 Cal.3d at pp. 176-177.)
While both SVP's and MDO's have been convicted of crimes related to mental disorders that render them dangerous, these groups are also not similarly situated with regard to the commitment term. The MDO law targets prisoners who have a "treatable, severe mental disorder," which "was one of the causes of, or was an aggravating factor in the commission of the crime for which they were incarcerated" but which can be kept in remission with mental health treatment. (Pen. Code, § 2960, see Pen. Code, § 2962.) The one-year MDO commitment term is consistent with the treatable nature of the mental disorders suffered by MDO's. As previously indicated, "[a]menability to treatment is not required for a finding" that a person is an SVP. (§ 6606, subd. (b).) As we have also noted, Proposition 83's express findings indicate "sexual offenders are the least likely to be cured." (Voter Information Guide, Gen. Elect. (Nov. 6, 2006) text of Prop. 83, § 2, subd. (b), p. 127; cf. Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1165 ["legislative findings accompanying the [Kansas Sexually Violent Predator Act at issue in Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072]] suggested that sexually violent predators were ' "unamenable to existing mental illness treatment modalities," ' and would likely require care and commitment on a ' "long term" ' basis"].) Because SVP's are not necessarily amenable to effective treatment and as a group of offenders have poorer prospects for being cured, SVP's are not similarly situated to MDO's with respect to imposition of an indeterminate term.
3. Ex Post Facto and Double Jeopardy Prohibitions
The double jeopardy clause of "[t]he Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 793-796 [89 S.Ct. 2056, 2061-2064, 23 L.Ed.2d 707]), protects defendants from repeated prosecution for the same offense [citations], by providing that no person shall 'be subject for the same offense to be twice put in jeopardy of life or limb....' " (People v. Batts (2003) 30 Cal.4th 660, 678.) It "protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also Hess, supra, at 548-549, 63 S.Ct., at 386- 387 ('Only' 'criminal punishment' 'subject[s] the defendant to "jeopardy" within the constitutional meaning'); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ('In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution'), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983)." (Hudson v. U.S. (1997) 522 U.S. 93, 99 [118 S.Ct. 488].) "The Ex Post Facto Clause, which ' "forbids the application of any new punitive measure to a crime already consummated," ' has been interpreted to pertain exclusively to penal statutes. [Citation.]" (Kansas v. Hendricks (1997) 521 U.S. 346, 370 [117 S.Ct. 2072].) A judicial determination that a law is not punitive "removes an essential prerequisite" for both double jeopardy and ex post facto claims. (Ibid.)
Appellant maintains that the express purpose of Proposition 83 was to "increase the punishment of sex offenders." He argues that the elimination of the two year term of commitment in favor of an indeterminate term "rendered the SVPA punitive in effect." We do not agree.
In determining whether a statutory sanction constitutes criminal punishment in violation of double jeopardy protection or retroactive criminal punishment in violation of the ex post facto clause, we first determine legislative intent and, if there was no intent to impose punishment, we next consider the effect of the law. (See Hudson v. U.S., supra, 522 U.S. at p. 99 ["Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction" and "where the legislature 'has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect,'... as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty,'...."]; Smith v. Doe (2003) 538 U.S. 84, 92 [123 S.Ct. 1140] ["we must 'ascertain whether the legislature meant the statute to establish "civil" proceedings' " and "[i]f the intention of the legislature was to impose punishment, that ends the inquiry" and "[i]f... the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ' "so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil" ' "].)
Generally, the government "may take measures to restrict the freedom of the dangerously mentally ill." (Kansas v. Hendricks, supra, 521 U.S. 346, 363.) "This is a legitimate nonpunitive governmental objective and has been historically so regarded. [Citation.]" (Ibid.) "[C]onfinement of 'mentally unstable individuals who present a danger to the public' [is] one classic example of nonpunitive detention. [Citation.]" (Ibid.)
The California Supreme Court has upheld the SVPA against ex post facto claims prior to its 2006 amendment. (See Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1179.) It concluded that "the SVPA does not impose liability or punishment for criminal conduct." (Id. at p. 1175.) The court has determined that "SVPA proceedings are 'civil' in nature [citations]...." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 250; see People v. Allen, supra, 44 Cal.4th at p. 860 ["Proceedings to commit an individual as a sexually violent predator in order to protect the public are civil in nature"].) This court has also previously rejected as meritless both ex post facto and double jeopardy claims against the SVPA. (See e.g. People v. Carlin (2007) 150 Cal.App.4th 322, 348; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226.)
To persuade us that the voters in 2006 intended to overturn the statute's originally stated purpose and convert the SVPA into a punitive law, appellant directs us to Proposition 83's intent clause and the argument in favor of Proposition 83, which are contained in the Official Voter Information Guide, General Election (Nov. 7, 2006). The intent clause states that the intent of the People of California in enacting the measure was to "strengthen and improve the laws that punish and control sexual offenders" and requires any conflicting provision of law "that provides for a greater penalty or a longer period of imprisonment" to supersede the provisions contained in Proposition 83. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 31, p. 138.) The proponents of Proposition 83 emphasized that the new law would keep child molesters in prison longer and ensure "predatory sex criminals will be punished and serve their full sentence in every case." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) argument in favor Prop. 83, p. 46.) None of this language demonstrates that the intent underlying the 2006 amendments to the SVPA was to punish persons subject to civil commitment as sexually violent predators after their sentences were complete.
In enacting the SVPA, the Legislature expressly stated its intent that persons determined to be SVP's "be confined and treated until such time that it can be determined that they no longer present a threat to society" and "be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats. 1995, ch. 763, § 1, pp. 5921-5922.) Section 6250 continues to provide that persons subject to judicial commitment as SVP's "be treated, not as criminals, but as sick persons."
We take judicial notice of the Voter Information Guide's content pertinent to Proposition 83 (http://vote2006.sos.ca.gov/voterguide/props/prop83/prop83.html). (Evid. Code, §§ 452, 459.)
As our California Supreme Court recently noted: "Proposition 83 amended the Penal Code as well as the Welfare and Institutions Code. The intent to punish sexually violent predators through Penal Code provisions that apply to criminal prosecutions does not establish an intent to punish sexually violent predators through Welfare and Institutions Code provisions that apply to civil commitment proceedings. Although Proposition 83 made amendments to both the criminal and the civil schemes, it recognized the different purposes of these two schemes, stating in the preamble: '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.' (Voter Information Guide, Gen. Elect. (Nov. 6, 2006) text of Prop. 83, § 2, subd. (h), p. 127, italics added.)" (People v. Allen, supra, 44 Cal.4th at pp. 861-862 [Fifth Amendment's guarantee against compulsory self-incrimination and Sixth Amendment rights to self-representation and to confront witnesses do not apply to civil proceedings under the SVPA].)
Proposition 83's express findings and declarations specific to the SVPA state a desire to avoid "unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (k), p. 127.) According to the findings and declarations, "California is the only state" among states providing for involuntary commitment of SVP's that "does not provide for indeterminate commitments" and that "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." (Ibid.) These statements reflect an intent to eliminate a needless burden on the state, rather than an intent to punish the committed person.
Appellant also points to section 33 of Proposition 83, which generally requires a two-thirds majority for amendment by the Legislature, except that the Legislature may, by a simple majority, "amend the provisions... to expand the scope of their application or to increase the punishments or penalties provided...." This amendment clause indicates an intent to limit the Legislature's ability to rollback the provisions enacted by the voters. While the section ensures that new offenders are subject to increased punishment, it does not demonstrate an intent to punish SVP's who have already fully served their sentences.
We turn to the question whether the amendments, particularly the provision for an indeterminate term of commitment, render the SVPA punitive in effect. In Kansas v. Hendricks, supra, 521 U.S. 346, "Hendricks focuse[d] on his confinement's potentially indefinite duration as evidence of the State's punitive intent." (Id. at p. 363.) The United States Supreme Court in Hendricks concluded that, "[f]ar from any punitive objective, the confinement's duration is instead 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. Cf. Jones, 463 U.S., at 368, 103 S.Ct., at 3051-3052 (noting with approval that 'because it is impossible to predict how long it will take for any given individual to recover [from insanity] or indeed whether he will ever recover-Congress has chosen... to leave the length of commitment indeterminate, subject to periodic review of the patients' suitability for release')." (Id. at pp. 363-364.) The court found it significant that a committed person was "statutorily entitled to immediate release" whenever he was adjudged safe to be at large. (Id. at p. 364.)
While the limited duration of any single commitment term was a consideration in both the United States Supreme Court's and the California Supreme Court's determinations that the potentially indefinite commitment under the sexually violent predator acts at issue did not constitute criminal punishment (see Kansas v. Hendricks, supra, 521 U.S. at p. 364 [one-year term under Kansas's Sexually Violent Predator Act]; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177 [two-year term under California's SVPA]), neither court suggested that an indeterminate term of civil commitment would necessarily constitute criminal punishment. The California Supreme Court noted in Hubbart, "nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined...." (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176.)
As our due process discussion indicates, the actual length of an indeterminate term of commitment under the current SVPA depends upon whether the committed person continues to qualify as an SVP. The present law contains procedural safeguards directly linking the duration of any commitment to the existence of an ongoing qualifying mental disorder resulting in dangerousness. (See §§ 6600, subd. (a)(1), 6604, 6605, 6607, 6608.) Viewed as a whole, the SVPA continues to be "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.' (Hendricks, supra, 521 U.S. 346, 364, 117 S.Ct. 2072, 2083.)" (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177.) Appellant has demonstrated neither a punitive intent nor a punitive effect. (Cf. Kansas v. Hendricks, supra, 521 U.S. at pp. 368-369.)
The order of commitment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.