Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CV040548
McGuiness, P.J.
Jerome Franz Gonzalez appeals an order involuntarily committing him for an indeterminate term to the custody of the Department of Mental Health (Department) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) (the SVPA). Gonzalez contends the order should be reversed because his indeterminate commitment under the SVPA, as amended in 2006, violates his federal constitutional rights to due process of law, against ex post facto laws, and to equal protection under the law. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Procedural History
Because Gonzalez’s appeal raises purely legal questions concerning the constitutionality of the SVPA as amended in 2006, the underlying facts are not pertinent to the appeal. We briefly summarize the procedural history leading up to Gonzalez’s current commitment as an SVP.
In 1983, Gonzalez was convicted of committing a lewd or lascivious act upon a child under the age of 14, a violation of Penal Code section 288, subdivision (a). In 1988, Gonzalez was convicted of two counts of violating Penal Code section 288, subdivision (a).
Gonzalez was initially committed to the Atascadero State Hospital as an SVP on August 8, 2002. He was recommitted as an SVP on June 29, 2005, for a term that was to expire on August 2, 2006.
On May 3, 2006, the Humboldt County District Attorney filed a petition requesting recommitment of Gonzalez as an SVP under section 6600 et seq. The trial court found probable cause to believe Gonzalez was an SVP and ordered him held pending trial.
A jury trial on the petition was held in October 2007. On October 19, 2007, the jury found the allegation that Gonzalez was an SVP to be true. On November 2, 2007, appellant was committed to the Department for an indeterminate term. Gonzalez filed a timely notice of appeal on November 6, 2007.
Discussion
1. Preservation of Claims for Appeal
At the outset, we address the People’s argument that Gonzalez waived his claims of error by failing to object in the trial court to the constitutionality of the 2006 amendments to the SVPA. Ordinarily, a constitutional claim must be raised in the trial court in order to preserve the issue for appeal. (See People v. Rudd (1998) 63 Cal.App.4th 620, 628-629; see also In re Sheena K. (2007) 40 Cal.4th 875, 880-881.) However, the “objection/waiver rule is generally not applied when the alleged error involves a pure question of law, which can be resolved without reference to a record developed below. [Citation.]” (People v. Williams (1999) 77 Cal.App.4th 436, 460; accord In re Sheena K., supra, 40 Cal.4th at p. 888.) Here, Gonzalez makes a facial challenge to the constitutionality of the SVPA, as amended in 2006. His appeal involves a pure question of law, which can be resolved without reference to the record in the trial court. Accordingly, his failure to object in the trial court did not waive his right to pursue the matter on appeal.
2. Overview of the SVPA
The SVPA took effect on January 1, 1996. (Stats. 1995, ch. 763, § 3.) As originally enacted, the SVPA provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (former §§ 6603, subd. (d), 6604), were found beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147.) An SVP was defined as “a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who 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.” (Former § 6600, subd. (a).)
References to “former” versions of the statutes comprising the SVPA are to the statutes as originally enacted.
The definition of SVP was subsequently amended to provide that there need only be a conviction involving “one or more victims,” as opposed to the “two or more victims” originally required by the statute. (Compare § 6600, subd. (a), with former § 6600, subd. (a), as added by Stats. 1995, ch. 763, § 3.) Gonzalez does not challenge the constitutionality of this amendment to the SVPA.
Under the SVPA as originally enacted, a person’s commitment could not be extended beyond the original two-year term unless a new petition was filed requesting a successive two-year commitment. (Former §§ 6604.) On the filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e).)
On September 20, 2006, the governor signed into law Senate Bill 1128, which amended the SVPA. The bill was enacted as an emergency measure and was effective immediately. (Stats. 2006, ch. 337, § 55.) On November 7, 2006, the voters passed Proposition 83, also known as “Jessica’s Law.” (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, pp. 127, 135-138.)
In the wake of Senate Bill 1128 and Proposition 83, the SVPA still provides that in an initial commitment proceeding the government must prove beyond a reasonable doubt that the person whose commitment is sought is an SVP. (§ 6604.) Now, however, if the court or jury makes that finding, the court must commit the person for an indeterminate term, rather than a two-year term. (Ibid.)
Because the term of commitment is indeterminate, the government no longer has to prove at regular intervals, beyond a reasonable doubt, that the person remains an SVP. Instead, the Department must examine the person’s mental condition at least once a year and must report annually on whether the person remains an SVP. (§ 6605, subd. (a).) If the Department determines the person is no longer an SVP, the director of the Department must authorize the person to petition the court for an unconditional discharge. (§ 6605, subd. (b).) If, on consideration of such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must order a hearing on the petition. (Id., subd. (c).) At the hearing, a petitioner is entitled to a jury trial and the assistance of counsel and experts. (Id., subd. (d).) The government has the burden of proving beyond a reasonable doubt that the petitioner is still an SVP. (Ibid.) If the government meets that burden, the person must be recommitted to the Department for an indeterminate term. (Id., subd. (e).) If the government does not meet its burden, then the person must be unconditionally discharged. (Ibid.) The Department must file a petition for judicial review of an SVP’s commitment if it has reason to believe the person no longer meets the definition of an SVP. (Id., subd. (f).)
The only other avenue for release from confinement under the amended SVPA is a petition under section 6608. This statute remains substantially the same as before the enactment of Senate Bill 1128 and the passage of Proposition 83. Under section 6608, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the Department. (§ 6608, subd. (a).) The court may deny the petition without a hearing if it determines it is based on frivolous grounds. (§ 6608, subd. (a).) A person petitioning for release is entitled to the assistance of counsel. (Ibid.) In any hearing under section 6608, the petitioner has the burden to show by a preponderance of the evidence that he would not be a danger to the health and safety of others if under supervision and treatment in the community. (Id., subd. (i).)
3. Due Process
Gonzalez contends his indeterminate commitment under the amended SVPA violates his federal due process rights because there is no longer any provision for automatic periodic hearings to determine the propriety of continued commitment. He further contends that, absent the concurrence of the Department, the SVPA now improperly places the burden on him to prove by a preponderance of the evidence that he should be released.
“Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. [Citation.] A defendant challenging the statute on due process grounds carries a heavy burden. Courts have a ‘ “duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.” ’ [Citation.]” (People v. Otto (2001) 26 Cal.4th 200, 209-210.)
In Jones v. United States (1983) 463 U.S. 354 (Jones), the United States Supreme Court upheld a District of Columbia statute that provided for the indefinite commitment of a defendant acquitted by reason of insanity and required him to prove by a preponderance of the evidence that he was no longer insane or dangerous in order to be released. The court found that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society” (id. at p. 366) because the criminal act indicates dangerousness and the insanity acquittal supports an inference of continuing mental illness. (Id. at pp. 363-366.) Accordingly, the court held the federal constitution permits the government to confine a person found not guilty by reason of insanity to a mental institution “until such time as he has regained his sanity or is no longer a danger to himself or society.” (Id. at p. 370.) The court rejected the notion that the person could not be hospitalized for a period longer than he could have been incarcerated if convicted, because the purpose of the commitment was not to punish the individual, but to treat him and protect the public. (Id. at p. 368.) “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.” (Ibid.)
In light of Jones, it cannot reasonably be contended that it violates due process to hold an SVP for an indeterminate period until he no longer meets the definition of an SVP or can be safely placed on conditional release. A set length of commitment is not constitutionally required; what is required are adequate and fundamentally fair procedures to ensure the person is held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77 (Foucha); see also Kansas v. Hendricks (1997) 521 U.S. 346, 358.)
To the extent Gonzalez contends that the release provisions of the amended SVPA do not meet those due process requirements, his claim fails. The SVPA provides two procedures through which an SVP can obtain release. Section 6605 sets forth the procedures for securing release when the Department determines the detainee’s condition has so changed that he no longer meets the definition of an SVP. Section 6608 sets forth the procedure for securing release without the Department’s concurrence.
Gonzalez maintains the procedures under section 6605 are constitutionally inadequate because the Department—by declining to file a petition— can “prevent a[ ] [section 6605] hearing from ever being held” in which the state has the burden of proof beyond a reasonable doubt under section 6605, subdivision (d). Gonzalez argues that “[t]he filing of such a petition is in the absolute discretion of the Department,” without any judicial review.
This contention is unavailing. Gonzalez misconstrues section 6605, subdivision (b) to the extent he asserts it is the Department that files the petition discussed in that subdivision. Section 6605, subdivision (b) requires the director of the Department to authorize the committed person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge in the event the Department makes one of the two determinations specified therein. If the Department makes one of those determinations and (as it is then required to do) authorizes the committed person to file the petition, the committed person—not the Department—can file the petition. (§ 6605, subdivision (b).) Thus, the Department cannot prevent a section 6605 hearing from being held by refusing to file a petition under section 6605, subdivision (b), as Gonzalez contends. Furthermore, Gonzalez’s argument fails to appreciate that the Department, although a state agency, is not an arm of the district attorney, but is an independent body with a statutory obligation to evaluate the detainee. The Department has nothing to gain by withholding authorization to file a release petition for a person whose condition has changed.
Gonzalez also contends section 6608 provides a constitutionally inadequate mechanism for judicial review because the committed person is not entitled to the assistance of an expert. This contention is also unavailing.
During the annual postcommitment examination mandated by section 6605, subdivision (a), the committed person has the right to retain, or if indigent to request appointment of, a qualified expert to examine him or her. (§ 6605, subdivision (a).) Thus, as a practical matter, the committed person will have undergone an annual examination of his or her current mental condition within the one-year period preceding any petition brought under section 6608, and will have had the right under section 6605, subdivision (a) to the assistance of a qualified expert.
We note that Gonzalez provides no analysis or authority in support of his contention that the provisions for judicial review under section 6608 are constitutionally inadequate on the ground that a petitioner has no statutory right to the assistance of a qualified expert.
Gonzalez further contends that section 6608 is a constitutionally inadequate mechanism for judicial review of a detainee’s confinement because the detainee has the burden of proof in a hearing ordered by the trial court under that section. However, as noted above, in Jones v. United States, supra, 463 U.S. 354, the court upheld a statutory scheme that required an insanity acquittee seeking release to prove by a preponderance of the evidence that he was no longer insane or dangerous. The court found indefinite commitment upon a finding of not guilty by reason of insanity proper because the criminal act indicates dangerousness and the insanity acquittal supports an inference of continuing mental illness. (Id. at pp. 365-366.)
Similarly, a finding under California law that a person is an SVP is a sufficient foundation for indefinite commitment until the SVP proves by a preponderance of the evidence that he is entitled to release. Although the federal Constitution only requires proof in an initial civil commitment case by clear and convincing evidence (Addington v. Texas (1979) 441 U.S. 418, 426-427), California requires the People to prove that a person qualifies as an SVP beyond a reasonable doubt. (§ 6604.) The People’s evidence must establish that the person has been convicted of a sexually violent offense in the past, and that he currently suffers from a diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will again engage in sexually violent predatory criminal behavior. (§ 6600, subd. (a)(1).) Moreover, SVP cases may only be instituted against persons who are currently in prison. (§ 6601, subd. (a)(1).)
The foregoing requirements for an initial SVP commitment are sufficient to support an inference of continuing dangerousness and mental illness. Dangerousness is indicated by the person’s prior conviction of a sexually violent offense, the fact he committed an offense meriting a prison sentence, and the beyond-a-reasonable-doubt finding that he is likely to be sexually assaultive if released. Continuing mental illness is indicated by the beyond-a-reasonable-doubt finding that the person suffers from a diagnosed mental disorder of a type that is typically slow to change. Finally, both elements are supported in a proceeding under section 6608 by the fact that the Department, the entity charged with treating the SVP, has concluded that release is not warranted. Accordingly, the burden of proof by a preponderance of the evidence that Gonzalez finds inadequate is the same as the burden of proof placed on the insanity acquittee—a burden of proof that the United States Supreme Court appears to have implicitly approved in Jones for periodic hearings to review the propriety of a civil commitment.
Further, Gonzalez’s reliance on Foucha v. Louisiana, supra, 504 U.S. 71, is misplaced. Foucha is factually and legally distinguishable because it involved a Louisiana statutory scheme that allowed a defendant in a criminal case found not guilty by reason of insanity to be committed to a psychiatric hospital unless he proved he was not dangerous to himself or others, even though he did not then suffer from any mental illness. (Id. at p. 73.) The uncontested facts in Foucha established that the committed acquittee was not suffering from a mental disease or illness. (Id. at p. 79.) The United States Supreme Court recognized that a state may not civilly commit a person unless it proves by clear and convincing evidence at the outset that the person is mentally ill and dangerous. (Id. at pp. 75-76, 86.) Foucha also recognized the high court’s prior holding in Jones, supra, 463 U.S. 354, that a person found not guilty by reason of insanity may be automatically confined without a separate hearing to determine whether he or she is currently mentally ill or dangerous because the verdict is presumed to have shown those requirements, but that an insanity acquittee is entitled to release when he or she is no longer mentally ill or dangerous. (Foucha, supra, 504 U.S. at pp. 76-78.) Because the evidence presented at a review hearing established that the insanity acquittee in Foucha was not at that time mentally ill, the Supreme Court held that his continued confinement violated his constitutional right to due process. (Id. at p. 79.)
Consistent with Foucha, the amended SVPA permits an SVP to be held as long as he is both mentally ill and dangerous, but no longer. To this end, the statute requires the trial court to conditionally release the committed person if he “would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community” (§ 6608, subd. (d), italics added) and unconditionally release him after a year if “by reason of a diagnosed mental disorder, he or she is not a danger to the healthy and safety of others . . . .” (Ibid., italics added.) The result rejected by the Foucha court—that a detainee’s confinement may be extended without a showing that he continues to be a danger to others due to an active diagnosed mental illness—would also be rejected under the current California statutory scheme.
The initial commitment hearing provides a significant level of due process protection, requiring a finding beyond a reasonable doubt that appellant has qualifying criminal conduct and is both mentally ill and dangerous. The required periodic reviews of Gonzalez’s mental health status and the petition for release procedures minimize the risk of erroneous deprivation. These procedures are sufficient to comport with due process.
4. Ex Post Facto
Gonzalez contends his indeterminate commitment is punitive and thus violates the constitutional prohibition against ex post facto legislation. We disagree.
The ex post facto clauses of the United States and California Constitutions (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9) apply exclusively to penal statutes. (Kansas v. Hendricks, supra, 521 U.S. at p. 370; Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1171.) A commitment statute that does not impose “punishment” does not raise ex post facto concerns. (Kansas v. Hendricks, supra, 521 U.S. at pp. 370-371.)
Gonzalez acknowledges that the United States Supreme Court has rejected an ex post facto challenge to both the Kansas Sexually Violent Predator Act and Alaska’s sex offender registration law because these laws were civil, not criminal, and therefore not punitive. (Kansas v. Hendricks, supra, 521 U.S. at pp. 361-363; Smith v. Doe (2003) 538 U.S. 84, 101-102.) The California Supreme Court, too, has rejected an ex post facto challenge to the SVPA, as the law existed before the 2006 amendments. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179.) Gonzalez argues, however, that the changes made to the SVPA by Proposition 83 make it punitive. More specifically, Gonzalez contends that the indeterminate nature of the commitment renders the amended SVPA punitive, claiming that indeterminate incarceration historically has been regarded as punishment.
A commitment under the SVPA is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179 [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns].) The analysis is not dependent on the term of civil commitment, but on the intent and effect of the statute authorizing it. The court in Hubbart observed that “the critical factor is whether the duration of confinement is ‘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.’ [Citation.]” (Id. at p. 1176.) The indeterminate term under California’s SVPA is “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.” (Kansas v. Hendricks, supra, 521 U.S. at p. 363.) This is “a legitimate nonpunitive governmental objective and has been historically so regarded.” (Ibid.)
Appellant argues that the broad scope of Proposition 83 was intended to increase punishment of sexual offenders and, therefore, the SVPA has now become punitive in purpose. However, any Penal Code amendments made by Senate Bill 1128 or Proposition 83 increasing the punishment for various sex offenses have little, if any, relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVP’s. There is nothing to suggest Senate Bill 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.
5. Equal Protection
Gonzalez contends that the amended SVPA violates constitutional equal protection guarantees because SVP’s are treated differently from mentally disordered offenders or persons found not guilty by reason of insanity. Because mentally disordered offenders and insanity acquittees are not similarly situated to SVP’s, we reject Gonzalez’s equal protection challenge.
“ ‘ “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.’ ” [Citation.] ‘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.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) “Similarly situated” for this purpose means “similarly situated for purposes of the law challenged.” (Ibid.)
Gonzalez contends that SVP’s are similarly situated to “those committed under Penal Code section 2960, et seq., the Mentally Disordered Offender (MDO) Act, and individuals committed to the custody of the State Department of Mental Health because they were found not guilty of a crime by reason of insanity.” We disagree.
Those committed as SVP’s are not similarly situated to persons committed as mentally disordered offenders (MDO’s). The MDO law targets those with severe mental disorders that may be kept in remission with treatment, while the amended SVPA acknowledges that persons committed pursuant to its authority have mental disorders that may never be successfully treated. (See People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222; People v. Buffington (1999) 74 Cal.App.4th 1149, 1163; see also Pen. Code, § 2962, subd. (a); § 6606, subd. (b).) When enacting the amended SVPA, voters acknowledged that SVP’s differ from other civilly committed persons because of the likelihood that they will reoffend. The voters’ information pamphlet for Proposition 83 noted that SVP’s have very high rates of recidivism—much higher than the rates for other violent felonies. (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) SVP’s are also more resistant to treatment—a fact that the voters’ information pamphlet also noted when it reported that they were among the least likely offenders to be cured. (Ibid.) Such predators can strike any time and victimize even strangers, posing a greater danger to the public at large than the more typical sexual offender who commits crimes against family members or close acquaintances—persons who may be made aware of the offender’s status as a sex offender. This heightened level of dangerousness and the unique treatment needs of SVP’s may be taken into account when considering whether persons are similarly situated for purposes of equal protection. (See State v. Post (1995) 197 Wis.2d 279, 321 [541 N.W.2d 115], cert. denied sub nom. Post v. Wisconsin (1997) 521 U.S. 1118.) These contrasting treatment expectations support the conclusion that MDO’s and SVP’s are not similarly situated for purposes of Gonzalez’s equal protection challenge to the varying terms of commitment and the differing release procedures of these two commitment schemes. (See People v. Hubbart, supra, 88 Cal.App.4th at p. 1222; see also People v. Buffington, supra, 74 Cal.App.4th at pp. 1162-1164.)
Those committed pursuant to the amended SVPA are also not similarly situated with those committed after a finding of not guilty by reason of insanity (NGI). An NGI’s involuntary civil commitment is the direct consequence of a criminal act—the commitment forms an alternative to the prison term that would have been imposed if the NGI had been found to have been sane at the time of the commission of the underlying crime. (See Pen. Code, § 1026.) The mental illness of an NGI must exist during prior criminal conduct, while the amended SVPA applies only if the individual poses a future risk that he or she will reoffend. (Compare ibid. with § 6600, subd. (a)(1).) The differing characteristics of those coming within the amended SVPA and the NGI commitment schemes pose different treatment requirements and may properly trigger different commitment terms and release procedures without offending equal protection of the laws. Furthermore, it is important to note that a person who is found not guilty because he or she was insane at the time of the crime is automatically committed, without an evidentiary hearing to determine if the person is still insane at the time of commitment. (Pen. Code, § 1026, subd. (a).) Even if the person immediately applies for release on the ground his or her sanity has been restored, a hearing cannot be held on that application until he or she has been confined for at least 180 days. (See Pen. Code, § 1026.2, subds. (a) & (d).) In contrast, a person cannot be committed under the SVPA until a trier of fact finds beyond a reasonable doubt that the person is at that point in time an SVP. Given the disparate manner in which SVP’s and NGI acquittees are committed initially, and the lack of any argument from Gonzalez on the point, we conclude that Gonzalez has failed to demonstrate that SVP’s and NGI acquittees are similarly situated for purposes of the laws governing judicial review of their commitments.
A person found not guilty by reason of insanity may not be committed if it “appear[s] to the court that the sanity of the defendant has been recovered fully . . . .” (Pen. Code, ¶ 1026, subd. (a).) Although the court may determine on its own that the defendant is no longer insane at the time of commitment, the statute does not afford the defendant the right to an immediate evidentiary hearing to make that determination.
Gonzalez has not demonstrated that an SVP committed pursuant to the amended SVPA is similarly situated to persons committed as an MDO or an NGI. Without this necessary predicate for an equal protection claim, he cannot establish any equal protection violation stemming from the indefinite term of commitment or the release procedures challenged in this appeal.
Disposition
The order recommitting Gonzalez as a sexually violent predator is affirmed.
We concur: Pollak, J., Siggins, J.