Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County No. EMH00138, Joseph Zimmerman, Judge. Affirmed.
AARON, J.
I.
INTRODUCTION
In October 2006, the People filed an amended petition pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, §§ 6600 et seq.) to commit Ricky Allen Hurtado to the Department of Mental Health (the Department) for an indeterminate term of involuntary treatment. In April 2007, after a trial, a jury found Hurtado to be a sexually violent predator (SVP). Thereafter, the trial court committed Hurtado to the Department for an indeterminate term.
Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.
The People originally filed a petition in July 2005 to extend Hurtado's commitment for an additional two-year term pursuant to the provisions of the SVPA then in effect.
On appeal, Hurtado claims that his commitment is not authorized pursuant to the SVPA, as amended by Proposition 83. Hurtado argues in the alternative that the court may commit him for only a two-year period under the SVPA as it existed at the time he was first committed as an SVP, and may not commit him for an indeterminate term, as is required under the amended version of the law. He further contends that the amended SVPA violates state and federal constitutional guarantees of equal protection and due process. We reject Hurtado's claims and affirm the judgment.
"In November 2006, the voters approved Proposition 83, a wide-ranging initiative measure covering sex offenses, registered sex offenders, and [the SVPA]." (People v. Litmon (2008) 162 Cal.App.4th 383, 409.)
II.
FACTUAL AND PROCEDURAL BACKGROUND
Hurtado was originally committed as an SVP on October 24, 1997. He was recommitted several times, including in 2004, when a jury found that he continued to meet the criteria of the SVPA. On July 29, 2005, the People filed a petition to extend Hurtado's commitment for another two year term under the provisions of the version of the SVPA that was in effect at that time.
On September 20, 2006, the Governor signed legislation amending the SVPA to provide that an SVP's initial commitment under the act is for an indeterminate term, rather than for a renewable two-year term, as provided under the version of the statute that existed at the time. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280 (Bourquez).) The enactment was urgency legislation and became effective immediately upon the Governor's signing. (Ibid.)
On October 6, 2006, the People filed an amended petition seeking to extend Hurtado's commitment for an indeterminate term under the amended SVPA.
On November 7, 2006, voters approved Proposition 83, known as "The Sexual Predator Punishment and Control Act: Jessica's Law" (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop 83, p. 127), which became effective upon its passage. (Bourquez, supra, 156 Cal.App.4th at p. 1281.) Like the legislation that was enacted just over a month prior to its passage, Proposition 83 eliminated the renewable two-year commitment term in favor of an initial indeterminate commitment term. (Ibid.)
A jury trial was held from January 25 to January 29, 2007. The jury heard about Hurtado's four prior qualifying convictions. Specifically, the jury learned that in 1979, Hurtado pled guilty to committing lewd and lascivious conduct with a child under the age of 14. In 1987, Hurtado pled guilty to one count of committing lewd and lascivious conduct with a child under the age of 14, one count of sodomy with a child under the age of 14 and 10 years younger than Hurtado, and one count of oral copulation with a child under the age of 14 and 10 years younger than Hurtado. The 1987 counts involved two victims, a 12-year-old boy and a 13-year-old boy.
Two mental health experts opined that Hurtado suffers from a diagnosed mental disorder, pedophilia, as well as antisocial personality disorder and substance abuse disorder. The experts testified that Hurtado is likely to engage in sexually violent predatory criminal behavior if he does not receive appropriate treatment in custody.
One mental health expert testified on Hurtado's behalf. This expert agreed that Hurtado suffers from anti-social personality disorder, but stated that this disorder does not predispose one to commit sex offenses. The expert did not agree that Hurtado suffers from pedophilia because, the expert stated, Hurtado has exhibited no symptoms consistent with pedophilia since 1987.
On January 29, 2007, the jury found Hurtado to be an SVP. On March 8, the trial court ordered Hurtado committed to the Department for an indeterminate term, beginning on February 20, 2007.
III.
DISCUSSION
A. The SVPA legislative scheme
Prior to 2006, a person who was found to be an SVP was committed for a two-year term under the SVPA. At the end of that term, the People were required to file another petition seeking a determination that the person remained an SVP. If the People did not file a recommitment petition, the person would have to be released. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3.) On filing of a recommitment petition, a new jury trial was 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); People v. Munoz (2005) 129 Cal.App.4th 421, 429 ["[A]n SVP extension hearing is not a review hearing. . . . An SVP extension hearing is a new and independent proceeding at which . . . the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."].)
As originally enacted, 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).) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, italics omitted.) The Act does not require proof that the person "is more likely than not to reoffend." (Ghilotti, supra, 27 Cal.4th at p. 923, italics omitted.)
In 2006 the SVPA was amended first by the Legislature and then, with the passage of Proposition 83, by the electorate. The amended SVPA provides that an individual who is determined to be an SVP must be "committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility." (§ 6604.) Once committed, the individual must have "a current examination of his or her mental condition made at least once every year." (§ 6605, subd. (a).) After the examination, the Department must file a report in the form of a declaration that addresses (1) "whether the committed person currently meets the definition of [an SVP]," and (2) "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." (Ibid.) The Department is to file this report with the trial court that committed the person, and must serve the report on the prosecuting agency and the committed individual. The committed individual may retain, or the court may appoint, a qualified expert to examine him or her. (Ibid.)
If the Department concludes in the report that the committed individual no longer meets the requirements of the SVPA, or that conditional release is appropriate, the Department must authorize the committed individual to petition the trial court for release. (§ 6605, subd. (b).) Upon receipt of the petition for conditional release or unconditional discharge, the trial court is to set a probable 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 trial court determines that probable cause exists to believe the petition has merit, it must set a hearing on the issue, at which time the committed individual is "entitled to the benefit of all constitutional protections that were afforded him or her at the initial commitment proceeding." (Id., subds. (c), (d).) Either side may demand a trial by jury and may retain experts to examine the committed individual. (Id., subd. (d).) Where the Department has authorized the individual to petition for conditional release or unconditional discharge, the state bears the burden to prove beyond a reasonable doubt that the committed individual is still an SVP. (Ibid.)
The committed individual may petition the court for either conditional or unconditional release, depending on the Department's findings and recommendations.
The Department is required to seek judicial review of an individual's commitment not only at the time of the annual examination, but at any time that the Department "has reason to believe" a committed individual is no longer an SVP. (§ 6605, subd. (f).) Similarly, if the Department determines that the committed individual'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," the Department must send a report recommending conditional release of the committed individual to the trial court, the county attorney, and the committed individual's attorney. (§ 6607, subd. (a).) The trial court is required to hold a hearing on the report once it is received. (Id., subd. (b).)
After the first year of commitment, a committed individual may petition the trial court for conditional release or unconditional discharge even without the "recommendation or concurrence" of the Department. (§ 6608, subds. (a), (c).) The committed individual is entitled to the assistance of counsel in preparing and filing the petition. The individual must serve the Department with the petition. (Id., subd. (a).) After receiving such a petition, the trial court "shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing." (Ibid.)
If, after receiving a petition filed by an individual without the recommendation concurrence of the Department, the trial court determines that a hearing is appropriate, the committed individual has the burden of proving by a preponderance of the evidence that the petition should be granted. (§ 6608, subd. (i).) If the trial court determines that the committed individual "would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community," the trial court must order that the individual be placed in a state-operated forensic conditional release program. (Id., subd. (d).) The court retains jurisdiction of the person throughout the course of the conditional release program, and, at the end of one year, the court must hold a hearing to determine whether the individual should be unconditionally released from commitment. (Ibid.) If the trial court denies the petition, the committed individual must wait a year before petitioning the trial court again. (Id., subd. (h).) The trial court must deny any subsequent petition filed by that individual "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." (Id., subd. (a).)
As a result of Proposition 83's amendment to section 6604 making an SVP's commitment term indeterminate, as opposed to a two-year term, an SVP now remains committed, either fully or in a conditional release setting, "until he successfully bears the burden of proving he is no longer an SVP or the [DMH] determines he no longer meets the definition of an SVP. [Citations.]" (Bourquez, supra, 156 Cal.App.4th at p. 1287.)
B. Hurtado may be committed for an indefinite term under the amended SVPA
Hurtado claims that the trial court did not have jurisdiction to recommit him at all pursuant to section 6604. Specifically, Hurtado maintains that because the amended version of the statute does not refer to persons, like Hurtado, who had already been committed under the SVPA prior to its amendment as among those subject to the amended version of the Act, the court did not have the authority to commit him under the amended Act. This contention raises a question of law, which we review de novo. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1127.)
This court rejected a nearly identical argument in People v. Shields (2007) 155 Cal.App.4th 559, 564 (Shields), and other courts have ruled similarly (see Bourquez, supra, 156 Cal.App.4th at p. 1280 [under amended provisions of the SVPA, "petitions to extend commitment are petitions for indefinite commitment"]).
In Shields, this court observed, "The change in section 6604 from a two-year term to an indeterminate term was accomplished by the Legislature's amendment of the statute effective September 20, 2006, and again by the California voters' approval of Proposition 83 . . . effective November 8, 2006. [Citations.]" (Shields, supra, 155 Cal.App.4th at pp. 562-563.) While acknowledging that the revised SVPA does not expressly refer to persons already committed pursuant to the SVPA as among those subject to the terms of the amended statute, the Shields court nevertheless concluded "that the indeterminate term provisions of section 6604 apply to persons confined as SVP's for two-year terms under the former version of section 6604." (Shields, supra, 155 Cal.App.4th at p. 564.)
The Shields court reasoned that to conclude that persons already committed as SVPs are not covered by the amendments to the SVPA would be "contrary to the clear intent of the amendment to enhance — not restrict — confinement of persons determined to be SVP's." (Shields, supra, 155 Cal.App.4th at p. 563.) The Shields court further explained that "[t]he Legislature's act of changing SVP terms from two years to indeterminate terms — thereby dispensing with the requirement that the People petition for commitment every two years — conveys an unequivocal intent to continue the confinement of persons adjudicated to be SVP's." (Ibid.) We agree with the reasoning of Shields, and reject Hurtado's claim that the trial court lacked jurisdiction to consider the People's petition to commit him for an indefinite term under the amended version of the SVPA.
Hurtado contends, in the alternative, that even if it was within the trial court's jurisdiction to commit him for some period of time under the amended SVPA as a result of an implied savings clause, as the Shields court read into the statute, the trial court was thereafter limited to recommitting him under the version of the SVPA that was in effect prior to the 2006 amendments. Thus, Hurtado argues, the court could commit him for only another two-year term, not for an indefinite term. We disagree. "Because an extension proceeding essentially requires a new determination of the individual's status as a sexually violent predator, it follows that the provisions of amended sections 6604 and 6604.1 may be applied prospectively to all pending and future commitment proceedings. This interpretation, which subjects a person previously found to be a sexually violent predator to one extension proceeding at which the person may be committed for an indeterminate term, will give effect to the intent of the voters 'to strengthen punishment and control of sexual offenders.' [Citation.]" (People v. Whaley (2008) 160 Cal.App.4th 779, 799, italics in original.) The amended SVPA was in effect at the time of Hurtado's trial and at the time the jury found Hurtado to be an SVP. It was therefore proper for the trial court to order that Hurtado be committed for an indefinite term of treatment and confinement with the DMH, according to the terms of the amended SVPA. (See §§ 6604, 6604.1; see also Whaley, supra, 160 Cal.App.4th at p. 799.)
C. Hurtado's constitutional claims also fail
Hurtado argues that the amended SVPA violates both the federal and state Constitutions, but he makes no distinct arguments involving any state constitutional provision. The California Supreme Court has found the United States Supreme Court's "analysis of federal due process and equal protection principles persuasive for purposes of [analyzing SVPA claims under] the state Constitution." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1152, fn. 19.) We therefore apply the same standards to Hurtado's federal and state constitutional challenges.
1. The amended SVPA does not violate due process in requiring that a committed person who petitions for release prove by a preponderance of the evidence that he or she no longer poses a danger to others
Hurtado argues that his indeterminate commitment under the amended SVPA violates his Fourteenth Amendment right to due process and his right to due process under the California constitution. Specifically, Hurtado complains that the statute requires that he bear the burden to prove his right to release by a preponderance of the evidence at any release hearing that is based on a petition not authorized by the Director. He maintains that due process requires that the state carry the burden of proof in all commitment proceedings, including a proceeding to continue his detention as an SVP.
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425.) "Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. [Citations.]" (Foucha v. Louisiana (1992) 504 U.S. 71, 79 (Foucha).)
For an initial civil commitment, due process requires that the state prove by clear and convincing evidence both that the person is mentally ill and that the commitment is required for his or her own welfare or for the protection of others. (Kansas v. Hendricks (1997) 521 U.S. 346, 358; Addington, supra, 441 U.S. at pp. 426–427, 432–433.) Once the person has been committed, due process permits the state to hold the person only as long as he or she is both mentally ill and dangerous, but no longer. (Foucha, supra, 504 U.S. at pp. 71-78 (Foucha) [continuing to hold dangerous person who is no longer mentally ill violates due process]; Jones v. United States (1983) 463 U.S. 354, 368, 370 (Jones) ["acquittee is entitled to release when he has recovered his sanity or is no longer dangerous"].)
The SVPA imposes a more rigorous burden by requiring that the state establish the need for an initial civil commitment by proof beyond a reasonable doubt. (§ 6604.)
According to Hurtado, the SVPA improperly places the burden on him to prove that he should be released, rather than placing the burden of proof on the state to prove that he is still an SVP. Hurtado bases his argument primarily on Foucha, supra, 504 U.S. 71. In Foucha, the United States Supreme Court considered the constitutionality of a Louisiana statute that provided for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were determined to be dangerous, but not mentally ill. The trial court had determined that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis, and the state was "not claim[ing] that Foucha is now mentally ill." (Id. at p. 75, 80.) The court found that "a law like Louisiana's, which permits the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others," violated the Due Process clause. (Foucha, supra, 504 U.S. at p. 83.)
The Foucha court acknowledged the holding in Addington that a state may not civilly commit a person unless it establishes by clear and convincing evidence that the person is mentally ill and dangerous. (Foucha, supra, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) The court also noted its holding in Jones, supra, 463 U.S. 354, that a person who is found not guilty by reason of insanity may be automatically confined without a separate hearing to determine his or her current mental illness or dangerousness 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.) What the Foucha court found to be significant, however, was the fact that the evidence presented at a review hearing established that the insanity acquittee in that case was not currently mentally ill. It was for this reason that the court concluded that Foucha's continued confinement violated his constitutional right to due process. (Foucha, supra, 504 U.S. at p. 79.)
Hurtado relies on language in Foucha in which the court noted that the Louisiana statute shifted the burden of proof from the state to Foucha on the issue of Foucha's dangerousness. In distinguishing the pretrial detention scheme that the court upheld in United States v. Salerno (1987) 481 U.S. 739 ─a scheme that permitted the confinement of persons who were not mentally ill but who posed a danger to others or to the community, in very narrow circumstances ─ the Foucha court commented: "Unlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement is not carefully limited. Under the state statute, Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous." (Foucha, supra, 504 U.S. at pp. 81-82.)
This language must be considered in the context of the situation that existed in Foucha. The State of Louisiana was not contending that Foucha was mentally ill at the time of the hearing, but only that he was dangerous. (Foucha, supra, 504 U.S. at p. 78.) Because Louisiana was not contending that Foucha was mentally ill, "the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State [wa]s no longer entitled to hold him on that basis. [Citation.]" (Ibid.) Louisiana argued that under Salerno, it could continue to detain Foucha on the sole ground that he was dangerous. In rejecting Louisiana's argument, the Foucha court noted that the state had not proven by clear and convincing evidence that Foucha was, in fact, dangerous to the community. (Id. at p. 81.)
We read Foucha as prohibiting the continued confinement of insanity acquittees who are no longer mentally ill, particularly in a situation in which the state has not proven, by clear and convincing evidence, that the individual poses a danger to the community. Foucha does not address the burden of proof that would apply at future release hearings, after the state had already established beyond a reasonable doubt that the individual is mentally ill and poses a danger, and thus does not support appellant's due process challenge to section 6608's provision that places the burden on him to prove by a preponderance of the evidence that he is entitled to release because he no longer meets the SVP criteria.
The court stated, "Freedom from physical restraint being a fundamental right, the State must have a particularly convincing reason, which it has not put forward, for such discrimination against insanity acquittees who are no longer mentally ill." (Foucha, supra, 504 U.S. at p. 86.)
In Jones, supra, 463 U.S. at pages 357, 366-368, the insanity acquittee bore the burden of proving, by a preponderance of the evidence, that he was no longer mentally ill or dangerous. The Jones court observed, "The statute provides several ways of obtaining release. Within 50 days of commitment the acquittee is entitled to a judicial hearing to determine his eligibility for release, at which he has the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous. [Citation]. If he fails to meet this burden at the 50-day hearing, the committed acquittee subsequently may be released, with court approval, upon certification of his recovery by the hospital chief of service. [Citation.] Alternatively, the acquittee is entitled to a judicial hearing every six months at which he may establish by a preponderance of the evidence that he is entitled to release. [Citation.]" (Jones, supra, 463 U.S. at pp. 356-357, fn. omitted.) The Jones court thus implicitly approved a review procedure similar to the one at issue here.
The initial commitment hearing under the amended SVPA provides a significant level of due process protection by requiring a finding beyond a reasonable doubt that the individual meets the SVP criteria. The required periodic reviews of a committed individual's mental health status and the procedures that permit these individuals to petition for release minimize the risk of an erroneous deprivation of liberty. We conclude that requiring Hurtado to bear the burden to prove his right to release, by a preponderance of the evidence, at a hearing on any subsequent petition for release filed without the Director's authorization, does not violate Hurtado's constitutional right to due process.
2. Hurtado's equal protection claims fail
Hurtado challenges the SVPA on equal protection grounds, under two theories. He first contends that the SVPA violates the constitutional guarantee of equal protection because it provides for an indeterminate term of commitment, while other civil commitment schemes in California provide for specified commitment terms. Hurtado also contends that the SVPA violates the constitutional guarantee of equal protection in that for SVP committees as to whom the Director has authorized the filing of a petition, the state bears the burden of proving that the person is still an SVP, while those committed as SVPs who petition for release without the Director's authorization bear the burden of proving that they are entitled to conditional or unconditional release.
"The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The 'first prerequisite' to an equal protection claim is '"a showing that 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.'" . . . ' [Citation.]" (Hubbart, supra, 88 Cal.App.4th at p. 1216 .) Because individuals who are not similarly situated need not be treated equally (People v. Green (2000) 79 Cal.App.4th 921, 924 (Green)), the first step in an equal protection analysis is to determine whether the two identified groups are similarly situated (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 (Hofsheier)). The inquiry is not whether the two groups are similarly situated for all purposes, but, rather, whether they are similarly situated for purposes of the law being challenged. (Ibid.)
"'Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.]' [Citation.] The state 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] 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 power.' [Citation.]" (Hubbart, supra, 88 Cal.App.4th at p. 1217.)
"Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment. [Citations.]" (Green, supra, 79 Cal.App.4th at p. 924.) In applying this standard, the state has the burden of establishing that it has a compelling interest that justifies the law and that the distinctions made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21 Cal.4th 628, 641.)
a. Comparing the SVPA to other civil commitment schemes does not establish that the SVPA's indeterminate commitment scheme violates Hurtado's right to equal protection
Hurtado claims that he was denied equal protection of the laws, under both the federal and state Constitutions, because he was committed for an indeterminate term, while individuals who are committed under other civil commitment statutes are committed for fixed terms.
(i) SVPs are not similarly situated with individuals who are civilly committed under other legislative schemes
Hurtado argues that individuals who are committed under the amended SVPA are similarly situated with those who are committed under the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) (MDOs) and with individuals who are found not guilty by reason of insanity (NGIs) (Pen. Code, § 1026 et seq.). We disagree.
The premise that SVPs are similarly situated with MDOs and with persons who are committed after a verdict of not guilty by reason of insanity overlooks significant differences in the relevant commitment schemes and their purposes with respect to the degree and type of danger that persons committed under the different schemes pose, as well as the severity of the mental illness, prognosis, and amenability to treatment of persons in the different groups. For example, although SVPs, MDOs, and NGIs all suffer from mental disorders, the dangers that the groups pose are different. While the "SVPA narrowly targets "a small but extremely dangerous group of sexually violent predators" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253), the other classifications involve a broad range of mental illness and associated conduct.
In addition, an SVP is civilly committed in large part because of the likelihood that he or she will engage in sexually violent criminal behavior in the future. (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127 ["Sex offenders have very high recidivism rates. According 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 . . . .".) The SVP group presents a substantial danger to the community, has an extremely high rate of recidivism, requires long-term treatment, and has only a limited likelihood of improvement. On the other hand, the other classification groups may include individuals who suffer from mental illnesses that are of short duration, are not likely to reoccur, and/or who have the potential of being successfully treated with medication or other therapeutic interventions. (See, e.g., People v. Buffington (1999) 74 Cal.App.4th 1149, 1163 [determining SVPs and MDOs are not similarly situated for purposes of equal protection claim based on differential treatment requirements].)
We conclude that for purposes of an equal protection analysis with regard to determinate versus indeterminate commitment schemes, SVPs are not similarly situated with other individuals who have been committed under different civil commitment statutes.
(ii) The government has a compelling governmental interest in treating SVPs differently from individuals who are civilly committed for other reasons
Even if we were to assume, arguendo, that SVPs are similarly situated with MDOs and NGIs for purposes of the law that Hurtado challenges, we would nevertheless conclude that the disparate treatment of these groups is necessary to further a compelling state interest.
Hurtado asserts that under the amended Act, an SVP is given an indeterminate commitment and thereafter has the burden to prove that he should be released, unless the Department authorizes a petition for release, while an MDO is committed for a period of one year and has the right to annual reviews at which the People have the burden to prove beyond a reasonable doubt that the MDO continues to meet the criteria for commitment. (See Pen. Code, §§ 2970, 2972, subds. (a), (b), (e).) Hurtado also notes that an NGI is initially committed for a term equal to the applicable sentence for the underlying criminal offense, and that after the expiration of that term, the NGI has the right to recommitment proceedings every two years. In those proceedings, the NGI is entitled to a jury trial and the state bears the burden of proof beyond a reasonable doubt. (See Pen. Code, § 1026.5, subd. (b)(1).) Hurtado contends that the state does not have a compelling interest in imposing indeterminate terms on SVPs while providing MDOs and NGIs with determinate terms and the right to recommitment proceedings at the conclusion of the determinate terms.
We conclude that there is a compelling state interest in committing SVPs to indeterminate terms, regardless of the commitment terms that are imposed on individuals who are committed under other civil commitment statutes. SVPs are given indeterminate—not fixed—terms of civil commitment because they are less likely to be cured and more likely to reoffend than are other civil committees. (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) SVPs are thus deemed more dangerous than persons who are committed under other civil commitment schemes. As the California Supreme Court has noted, the SVPA, as originally enacted, "narrowly target[ed] 'a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.' [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) With respect to the prior version of the SVPA, the California Supreme Court stated, "The problem targeted by the Act is acute, and the state interests—protection of the public and mental health treatment—are compelling." (Hubbart, supra, 19 Cal.4th at p. 1153, fn. 20.)
In election materials pertaining to Proposition 83, voters were presented with information that sex offenders "prey on the most innocent members of our society" and that such offenders "have very high recidivism rates" and are the "least likely to be cured and the most likely to reoffend." (Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. Pen. Code, § 209, p. 52; see Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) As noted in Shields, in passing Proposition 83, the voters intended to enhance the confinement of SVPs: "Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release . . . ." (Shields, supra, 155 Cal.App.4th at p. 564.) The change from the two-year fixed term to an indeterminate term was also intended to reduce the costs of SVP evaluations and court testimony. (Bourquez, supra, 156 Cal.App.4th at p. 1287.) Based on the evidence of the voters' intent in passing Proposition 83, we conclude that the changes made by Proposition 83, including the change from a two year civil commitment to an indeterminate term, were in furtherance of compelling state interests.
The particularized dangerousness of SVPs and the limited success in treating SVPs ─ characteristics voters recognized in passing Proposition 83 ─ justify treating SVPs differently from the way that individuals who are civilly committed under the Mentally Disordered Offender Act and those found not guilty by reason of insanity are treated. Voters could reasonably have concluded that SVPs should be committed to indeterminate terms, subject to hearings on petitions for release at which they may be required to bear the burden to prove by a preponderance of the evidence that they are no longer SVPs. We conclude that the disparate treatment of SVPs under the amended SVPA, and MDOs or individuals who are committed after having been found not guilty by reason of insanity, does not violate Hurtado's constitutional right to equal protection.
b. The provisions of the SVPA that provide for different evidentiary burdens for hearings that arise from Director-approved petitions and hearings that arise from petitions filed without the Director's approval do not violate equal protection
Hurtado contends that the amended SVPA's indeterminate commitment scheme violates his right to equal protection because an SVP who seeks judicial review of his or her status as an SVP with the approval of the Director receives a hearing at which the state bears the burden of proving beyond a reasonable doubt that the individual is still an SVP, while an SVP who seeks judicial review of his or her status as an SVP without the approval of the Director must bear the burden to prove by a preponderance of the evidence that he or she is no longer an SVP. Hurtado complains that "the state treats those seeking review of their indeterminate confinement term differently depending on whether or not a state employee, the Director of Mental Health, grants permission for judicial review."
Hurtado asserts that the "legitimate purpose of the law is to confine only those individuals who are both mentally ill and dangerous" and that "all SVP detainees meet the same basic criteria," such that "they are all similarly situated with respect to each other." However, given that the law's legitimate purpose is to confine only those individuals who are mentally ill and dangerous within the meaning of the SVPA, the two groups Hurtado identifies—i.e., SVPs who receive the Director's authorization to file a petition for conditional or unconditional release and those who do not—are not similarly situated for purposes of the SVPA.
The question is not whether the two groups are similarly situated for all purposes, but rather, whether they are similarly situated for purposes of the challenged law. (Hofsheier, supra, 37 Cal.4th at p. 1199.)
SVPs who receive the Director's authorization to file a petition for release receive such authorization only because the Department has concluded, based on the annual review, that they no longer meet the requirements of the SVPA, or that conditional release is appropriate, or because the Department otherwise "has reason to believe" that they are no longer SVPs. The mental health experts in the Department make these determinations based on diagnostic criteria that are set forth in the statute. There is thus reason to believe that individuals who receive the Director's authorization to file a petition are either no longer "both mentally ill and dangerous," or that they would not pose a danger while under supervision and treatment, and are thus suitable for conditional release. On the other hand, SVPs who do not receive the Director's authorization to file a petition for release have not demonstrated a material change in their status with regard to mental illness or dangerousness since the time of their initial commitments.
It is reasonable for the Legislature to have given the Department the power to make the determination as to whether a person continues to meet the SVP criteria. The Department is required to provide programming "which shall afford [an SVP] with treatment for his or her diagnosed mental disorder" that is "consistent with current institutional standards for the treatment of sex offenders." (§ 6606, subds. (a) and (c).) The "structured treatment protocol" that the Department is to develop must "specify measures that will be used to assess treatment progress and changes with respect to the individual's risk of reoffense." (§ 6606, subd. (c).) Every year the Department is required to conduct an examination of each SVP's mental condition in order to consider "whether the committed person currently meets the definition of a sexually violent predator . . . ." (§ 6605, subd. (a).) These provisions, in addition to the other gatekeeping functions assigned to the mental health experts at the Department to ensure that only those persons who meet the SVP criteria are initially committed under the SVPA, are all consistent with the notion that we attach significance to the expertise of medical professionals in this area, and that reliance on this expertise is reasonable and, indeed, necessary to fulfill the goals of the statute.
For example, inmates who the Director of Corrections refers for evaluation as to whether a petition should be filed pursuant to the SVPA are evaluated by the Department, or, more specifically, "by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health." (§ 6601, subd. (d).) The evaluation is to be conducted "in accordance with a standardized assessment protocol developed and updated by the [Department]. . . ." The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) Only in a situation in which one, but not both, of the initial two evaluators concludes that the person meets the SVP criteria are two independent professionals selected examine the individual. (§ 6601, subd. (e).)
If the purpose of the law is—as Hurtado identifies it— "to confine only those who are both mentally ill and dangerous" within the meaning of the SVPA, then those individuals who have demonstrated to mental health experts that they no longer meet the criteria under the SVPA are not similarly situated to individuals who demonstrate to mental health experts that they remain mentally ill and dangerous within the meaning of the SVPA.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.
Two of the three constitutional questions Hurtado presents in this appeal are currently pending before the California Supreme Court. (See People v. McKee (2008) 160 Cal.App.4th 1517 [review granted July 9, 2008, S162823].)