Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR10435C
Pollak, J.
On September 27, 2006, a jury found defendant Ronnie August Johnson to be a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). The trial court committed defendant for an indeterminate term, pursuant to an amendment to section 6604 that became effective six days earlier, on September 20, 2006. (§ 6604; see Stats. 2006, ch. 337, §§ 55, 62.)
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
Defendant contends the court committed prejudicial error by admitting unreliable hearsay evidence. He also challenges his commitment to an indeterminate term on the ground that applying the new law violated his due process right to notice of the consequences he was facing if found to be an SVP and other provisions of the federal and state Constitutions. We shall affirm the order of commitment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2001, the District Attorney of Sonoma County filed a petition to commit defendant as an SVP. Defendant was then in the custody of the California Department of Corrections, with a scheduled parole release date of October 17, 2001. On April 16, 2002, the court found the People had sustained their burden of establishing probable cause to believe that defendant was likely to engage in sexually violent predatory criminal behavior if released. The court scheduled a jury trial, and ordered that defendant remain in custody pending completion of the trial.
After extended periods of delay for which both parties share some responsibility, a jury trial was held over several days from September 13, 2006, to September 29, 2006. The parties stipulated that on June 3, 1981, defendant was convicted in California of forcibly raping two victims, Debra and Anne.
The People called as witnesses Dr. John Hupka and Dr. Douglas Korpi, both licensed psychologists experienced in SVP evaluations. Hupka opined that defendant met the criteria for an SVP because he had two rape convictions and currently suffered from an antisocial personality disorder and the sexual deviant mental disorder of paraphilia (desire to have sex with nonconsenting persons), which predisposed him to engage in sexually violent predatory behavior to a degree that he would pose a danger to others if released.
Hupka described his understanding of the factual circumstances of the rapes of Debra and Anne. Debra’s testimony regarding the circumstances of the rape was consistent with Hupka’s report of the incident.
Hupka based his diagnosis on defendant’s life history, including his criminal history and his behavior while incarcerated. Hupka noted that defendant’s records indicated five incidents, one in 1974 and four in 1980, for similar types of sexual offenses. In addition to the two convictions in California, defendant’s records reflected a 1974 Louisiana conviction for attempted aggravated rape, for which defendant was sentenced to nine years in prison; a 1980 Louisiana charge for aggravated rape for which there was no record of a disposition; and a third sex offense in California in 1980, for which defendant was not convicted. Defendant’s mental health records also noted that in the early 1980’s, defendant had self-reported to an evaluator that “there may have been some other rape behaviors that occurred in New York.”
Hupka found it important that after defendant had been convicted and punished for rape, he had reoffended in a sexually violent way. Most rape offenders never reoffend after being caught and punished, their behavior was opportunistic, and they are not driven by an urge to commit rape. Defendant, however, did not learn from his misconduct. His behavior suggests that the misconduct is an essential part of his psychological makeup, and the motivation to rape was very strong and overwhelmed any consideration that he might be caught or punished.
Hupka also reviewed more than 30 disciplinary write-ups given to defendant while he was incarcerated, including several reports for sexual misconduct involving masturbating in front of female correctional officers. Additionally, defendant had write-ups for violent behavior, which is typical of a person suffering from an antisocial mental disorder. The violent behavior included stabbing another inmate, threatening staff, and fighting. Defendant’s antisocial disorder also manifested itself by his inability to maintain himself in the community. Less than three weeks after his release from prison in 1995, defendant stole sweat pants from a department store and became combative when confronted by the store’s female security officer.
Hupka relied upon an actuarial test known as Static 99, which uses historical factors to determine the likelihood that a person will reoffend. Defendant’s score of 8 of a possible 12 on the Static 99 scale placed him in the category with the highest risk. Relative to other 54-year-old offenders, defendant is at a “somewhat higher” risk to reoffend, although the risk among this age group is less than for younger persons. No one has determined how many 54-year-old offenders are likely to reoffend within 15 years.
Hupka also considered that defendant has other characteristics associated with the likelihood of reoffending: difficulty with anger, inability to cooperate with supervision, general criminality, and lifestyle instability in that he has spent most of his adult life in custody and has never been able to function appropriately in the community or in prison. Although defendant’s risk of reoffending is less than it was in 1980, in Hupka’s judgment the risk is still substantial. Hupka did not find any indication of maturity, development, or psychological change that would suggest that the risk of defendant reoffending is declining with his age. Hupka opined that without appropriate treatment in custody, defendant is likely to harm others by engaging in sexually violent predatory criminal behavior. Paraphilia is not treatable; psychologists merely attempt to help sufferers develop a relapse prevention plan. Defendant has not participated in any sex offender treatment to develop such a plan.
On cross-examination, Hupka was questioned extensively about the reference in defendant’s records to self-reported rape behavior in New York. In reaching his opinion regarding defendant’s risk of reoffending, Hupka did not consider the information to be reliable and did not assume defendant had committed a rape in New York. The information was considered only in connection with defendant’s overall life history; it was consistent with defendant’s antisocial character and his attempt to escape responsibility for his crimes. Hupka was also questioned about the reference in defendant’s record to a 1980 arrest in Louisiana for aggravated rape for which there was no listed disposition. He acknowledged that he did not have much information about that charge, but felt that it added to a pattern reflecting defendant’s urge to engage in non-consensual sex.
Much of Dr. Korpi’s testimony duplicated the opinions and explanations provided by Dr. Hupka. Korpi testified that defendant suffers from the mental disorder of paraphilia. He described the three incidents that led to the charges lodged against defendant in California in 1980. Korpi did not give as much weight to the incident for which the charges were dismissed. Korpi noted that defendant had exhibited rape pathology while in prison, referring to the masturbation in front of female officers. Although there had been no such incidents in the last four or five years, Korpi felt that it was not likely that defendant had worked out his problems with women. Korpi opined that if released, defendant is likely to engage in sexually violent predatory behavior based on his scores on four actuarial measurement tests, including the Static 99. Based on the actuarial scales, defendant is “somewhere between medium high and high likelihood to sexually offend.” Korpi also looked at 30 other factors that indicated defendant is likely to reoffend. Defendant meets the criteria for an SVP because he presents a serious and well-founded risk, and is likely to reoffend in a violent and sexually predatory manner.
On cross-examination, Korpi was questioned about the references in defendant’s records to the 1980 charge of aggravated rape in Louisiana for which there was no record of disposition. After reviewing the documents, Korpi agreed with defense counsel that the most reasonable interpretation was that defendant had not committed an additional rape offense. Because Korpi did not have any paperwork confirming the incident, he had given it very little weight. Korpi was also questioned about his knowledge of the circumstances underlying defendant’s 1974 conviction in Louisiana and his two California convictions. He reconfirmed that he did not give the third incident in California as much weight because the charges were dismissed. Korpi did give considerable weight to the 1974 Louisiana conviction because statistically it is not expected that a person will reoffend as defendant did in 1980, which puts defendant in a much higher risk category.
Defendant was called as a witness by the People. During questioning about his criminal history, he acknowledged his 1974 Louisiana conviction for attempted aggravated rape, and his two rape convictions in California. He explained the circumstances leading to the 1974 Louisiana conviction. He did not remember being charged with aggravated rape in 1980 in Louisiana. As to the two convictions in California, he pled guilty to raping Debra and no contest to raping Anne. Charges relating to the rape of a third victim were dismissed. He pled guilty because he did not want to face charges in Louisiana, with a potential life sentence, and he was protecting his young cousin who had been implicated in two of the incidents.
Defendant did not believe he suffered from paraphilia. He had not received any sort of treatment or counseling as a sex offender in prison because it was not available. He did not think he needed treatment, and did not know if he could benefit from some form of treatment. He was remorseful for what he did to Debra, explaining he was young and stupid. When asked if he thought it might help to talk to somebody about why that incident had occurred, defendant replied that it had happened too long ago, he had been paroled in 1995, and he had not committed any subsequent rapes. Before he was paroled in 1995, he was interviewed by a doctor who did not think he needed treatment. He had been released on parole about 19 or 20 days when he reoffended. He was accused of shoplifting at a department store, and pleaded guilty to a charge of petty theft. He denied that he had assaulted the store’s female security officer.
Called as a defense witness, attorney Robert Faux testified that he represented defendant on the 1980 California sex charges. Faux explained that defendant was facing rape charges involving three separate incidents. The charges were dismissed as to one of them when the victim identified another person as her attacker. According to Faux, defendant’s primary motive for pleading guilty was to avoid extradition on a Louisiana warrant. Defendant was facing a possible life term if he returned to Louisiana, but if he received a sentence of more than 20 years in California, Louisiana would withdraw its warrant and not seek extradition. If defendant had been convicted of only one rape in California, his maximum sentence would have been less than 20 years.
The jury found defendant to be an SVP. He was committed to an indeterminate term. This timely appeal ensued.
DISCUSSION
I. Admission of Evidence
Before the start of trial, defendant moved to preclude the People’s expert witnesses from testifying about any misconduct other than defendant’s prior sexual convictions in California that qualified him as an SVP. Defendant sought to exclude any testimony about “arrests resulting in convictions for non-qualifying offenses, arrests not resulting in convictions or misconduct” reported by defendant to some one other than the testifying expert. The trial court ruled that the expert witnesses could testify to hearsay they relied on and recount that information to the jury, but the court would give an instruction limiting the jury’s consideration of the testimony. The court denied defendant’s request to exclude all hearsay regarding misconduct that did not result in a conviction, or hearsay regarding convictions that would not qualify him as an SVP, on the ground that the resolution of each objection depended upon the reliability of the specific hearsay statement at issue and therefore a blanket ruling was inappropriate. Defense counsel did not ask the court to rule on the specific items of hearsay listed in the motion papers. Rather, counsel requested and was granted the right to renew his objections outside the presence of the jury immediately before the expert took the stand. (Evid. Code, § 402.) However, defense counsel did not renew his objections before the witnesses testified. During their testimony, counsel made only one objection, to Hupka’s testimony that defendant had self-reported other rape behaviors in New York, and he gave no grounds for the objection. That motion was denied.
On appeal, defendant argues the trial court erred in failing to address challenges to specific hearsay statements outlined in his motion papers, and in subsequently admitting unreliable hearsay through the testimony of Hupka and Korpi. This testimony related to the circumstances of the dismissed 1980 rape charge against a third victim in California, the rape incidents in Louisiana, and references to other rape behaviors in New York. Defendant’s contentions have not been preserved for appellate review, and in any event do not warrant reversal.
“ ‘It is, of course, “the general rule” ’ . . . ‘ “that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” ’ ” (People v. Waidla (2000) 22 Cal.4th 690, 717; see Evid. Code, § 353.) Defendant argues that he did not waive his right to appellate review because the trial court should have ruled on his objections to specific hearsay statements at the in limine hearing, and any objection after the denial of his in limine motion would have been futile.
The trial court acted well within its discretion in denying defendant’s broad motion in limine and postponing its rulings on specific hearsay objections until renewed immediately before the expert was to take the stand. (See People v. Morris (1991) 53 Cal.3d 152, 187, 190-191, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The record does not support defendant’s contention that the trial court erroneously postponed its evidentiary ruling to a time when the jury would inevitably hear any prejudicial material. Nor does the trial court’s denial of defendant’s unspecified objection to Hupka’s testimony regarding rape behavior in New York establish that an objection on the grounds urged on appeal would have been futile. In the absence of a specific objection asserted when the court indicated it would consider such an objection, defendant has forfeited the right to challenge the experts’ testimony regarding the 1974 conviction for attempted aggravated rape in Louisiana, and his misconduct in Louisiana and California in 1980 that did not lead to convictions. (See People v. Morris, supra, at pp. 187, 190-191.) To the extent defendant argues that certain testimony was based upon the experts’ misreading of his criminal record, his failure to raise that objection at trial bars him from asserting it too on appeal. (People v. Fulcher (2006) 136 Cal.App.4th 41, 53.)
In any event, the admission of the challenged testimony does not warrant reversal. The challenged testimony was based upon the experts’ review of defendant’s presentence report and a report of a psychiatric mental health evaluation conducted while defendant was in prison. These reports, albeit hearsay, are reasonably relied upon by experts in forming their opinions. (Evid. Code, §§ 801, 802; see People v. Otto (2001) 26 Cal.4th 200, 212-213; People v. Miller (1994) 25 Cal.App.4th 913, 918.) To the extent defendant contends that the experts were permitted to express opinions based on faulty information, ample opportunity was provided and exercised to challenge and correct the assumptions on which the experts based their opinions. “A careless review of the written reports and evidence relied on in support of the experts’ opinion testimony affects the weight of their testimony and not its admissibility . . . .” (People v. Fulcher, supra, 136 Cal.App.4th at p. 54.) “Any erroneous factual assumptions by the experts could be, [and were], addressed through cross-examination of the experts” (ibid.), through the testimony of defendant and other witnesses, and through argument to the jury. Moreover, the experts made clear that in reaching their opinions that defendant was likely to reoffend, they gave little if any consideration to incidents for which there was no documented conviction. To the extent defendant’s objection is based on what the jury was permitted to hear, there was no disclosure of matters that differed significantly from the facts concerning defendant’s history that unquestionably were properly brought to the jury’s attention. Moreover, the jury was instructed that the testimony was not to be considered for the truth of the matters asserted, but only for the purpose of evaluating the opinions of the expert witnesses. We see no reason here to question the normal presumption that the jury followed those instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
II. Imposition of Indeterminate Term
A. Relevant Facts
When the district attorney filed its petition in this case, in September 2001, the SVPA provided that a person adjudicated an SVP would be committed for a term of two years, and the commitment could not be extended unless the People filed a new petition and again proved beyond a reasonable doubt that the person was an SVP. (§ 6604, as amended Stats. 2000, ch. 420, § 3.)
During the 2006 trial on defendant’s petition, the SVPA was amended as part of urgency legislation, known as the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.). (Stats. 2006, ch. 337, §§ 55, 56, 57, 62.) Relevant to this appeal, Senate Bill No. 1128 amended section 6604 to provide for an indeterminate rather than a two-year term of commitment, and eliminated the necessity of repeating the commitment process at two year intervals. (Stats. 2006, ch. 337, §§ 55, 56.) However, the Legislature left essentially intact the post-commitment procedures under sections 6605 and 6608, providing that a committed SVP was to be evaluated every year, and could seek yearly judicial review of the commitment by filing a petition for unconditional discharge or conditional release with or without the support of the California Department of Mental Health. (§ 6605, subds. (a), (c)-(e), (f) & subd. (b), as amended by Stats. 2006, ch. 337, § 57; § 6608, added by Stats. 1995, ch. 763, § 3.)
After the verdict was rendered on September 27, 2006, the People asked the court to impose the indeterminate term under the amended statute. Over defendant’s objection, the court granted the People’s request, concluding that application of the SVPA, as amended, did not constitute a retroactive application of the law or implicate the constitutional prohibition against ex post facto laws.
B. Imposition of Indeterminate Commitment Term to Pending Petitions
Defendant contends that imposing an indeterminate term to petitions pending when the SVPA was amended constitutes a retroactive application of the law that was not intended by the Legislature. We disagree.
“In general, application of a law is retroactive only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date. [Citations.] Thus, the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date. [Citations.] A law is not retroactive ‘merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.’ ” (People v. Grant (1999) 20 Cal.4th 150, 157.)
Here, the date of the conduct sought to be regulated by the SVPA is the date on which the jury found defendant to be an SVP. Although a jury may consider evidence of a person’s mental condition based on evaluations made before trial, the adjudication that a person is an SVP must be based on findings of a current diagnosed mental disorder that prevents the person from controlling sexually violent behavior (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1162), and “future” dangerousness, namely, that the person “is likely to commit sexually violent predatory behavior upon release.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 248, italics added.) The findings must relate to conditions that exist “at the time the verdict is rendered.” (Hubbart v. Superior Court, at p. 1162.) Consequently, imposing an indeterminate term based upon a verdict rendered after the amended law was in effect constitutes a prospective application of the statute. (People v. Ledesma (2006) 39 Cal.4th 641, 664; see People v. Whaley (2008) 160 Cal.App.4th 779, 793-804 (Whaley).)
Defendant contends that by imposing an indeterminate term, he has been deprived of a vested right to a new proceeding in two years. However, “dangerously mentally ill persons gain no perpetual ‘vested right’ in the commitment scheme extant when their illnesses first came to public attention. . . . Such a rule would severely hamper legislative efforts to respond to new knowledge about mental illness, correct perceived deficiencies in the statutory scheme, and refine the state’s machinery for treatment and restraint of dangerously disturbed people.” (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 183-184.) Even assuming defendant acquired a vested right, it is well settled that “[v]ested rights are not immutable; the state, exercising its police power, may impair such rights when considered reasonably necessary to protect the health, safety, morals and general welfare of the people.” (In re Marriage of Buol (1985) 39 Cal.3d 751, 760-761.)
Defendant argues that imposing an indeterminate term is especially unfair to him because his attorney based his defense on an attack of the People’s witnesses, and did not call an expert or present other testimony. Had counsel known about the change in the law, defendant asserts he likely would have presented a more thorough defense. This contention rests on pure speculation. What is more significant is that the September 2006 amendments to the SVPA did not alter the criteria or procedures for determining whether a person is an SVP. “The allegations against which [defendant] needed to be prepared to defend—most importantly, that he [had] . . . a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future—were unaffected by the amendment[s].” (People v. Carroll (2007) 158 Cal.App.4th 503, 512, petn. for review pending, petn. filed Feb. 5, 2008, time for grant or denial of review extended to May 5, 2008.) “Had the change in term adversely impacted [defendant’s] strategy or the presentation of his case, defense counsel could have said so,” but he did not. (Ibid.) In the absence of a compelling argument that imposing the indeterminate term in this case rendered his trial fundamentally unfair, defendant’s argument fails.
C. Constitutionality of the Legislative Amendments to the SVPA
1. Ex Post Facto, Double Jeopardy, and Due Process Clauses of Federal Constitution
Relying on Hubbart v. Superior Court, supra, 19 Cal.4th 1138, and Kansas v. Hendricks (1997) 521 U.S. 346, defendant argues that the substitution of an indeterminate term, in place of a two-year term, renders the SVPA punitive, in violation of the ex post facto and double jeopardy clauses, and violates the due process clause of the federal Constitution. We disagree.
In addressing the constitutionality of involuntary civil commitment schemes, “nothing in [Kansas v.] Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejecting Hendricks’s claim that the scheme imposed punishment because confinement was ‘potentially indefinite,’ the court made clear 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.’ ” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176, quoting Kansas v. Hendricks, supra, 521 U.S. at p. 363; see Jones v. United States (1983) 463 U.S. 354, 368.)
Here, the legislative amendments to the SVPA met due process standards. Although automatic biennial recommitment hearings were eliminated, the amended statute retained the yearly periodic review of the patient’s suitability for discharge, thereby assuring that “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.’ ” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176, quoting Kansas v. Hendricks, supra, 521 U.S. at p. 363.) Because the legislatively amended statute did not alter the prophylactic intent or scheme of the SVPA, the statute remained nonpunitive and defendant’s ex post facto and double jeopardy claims also fail. (Kansas v. Hendricks, supra, at p. 369 [determination that a civil statute is punitive in nature is an essential prerequisite for both ex post facto and double jeopardy claims].)
2. Equal Protection Clause of the Federal and State Constitutions
Defendant also contends that because he is similarly situated to persons committed under the mentally disordered offender (MDO) commitment scheme (Pen. Code, § 2960 et seq.) and under the commitment scheme for persons found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.), the indeterminate term of commitment imposed on him as an SVP violates his right to equal protection under the state and federal Constitutions. This challenge was not raised below and is not properly before us. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1170, fn. 31.) Nonetheless, we note that defendant’s argument lacks merit because it is based on the faulty premise that SVPs are similarly situated to MDOs and NGIs with regard to the duration of their confinements. (See People v. McKee (Mar. 20, 2008, D050554) __ Cal.App.4th __, __-__, __ [2008 Cal.App. Lexis 375 at pp. *59-*61, *64.)
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 state power.” (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 172; see also People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217.) Although SVPs are similarly situated in some respects to MDOs and NGIs, they are not similarly situated in all respects, particularly with regard to their treatment and its relationship to their confinement. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1158, 1162-1163; see People v. Hubbart, supra, at pp. 1221-1222.) Unlike SVP commitments, “NGI commitments . . . are ‘wholly, or partly, in lieu of a prison sentence, and the maximum term of commitment is calculated by reference to the prison term that would otherwise be imposed, and the person may be returned to the criminal court under various circumstances.’ ” (People v. Hubbart, supra, at p. 1224.) And, “[i]nvoluntary commitment under the MDO Act is directly related to the crime for which the defendant was incarcerated. [Citation.] The ‘severe mental disorder’ of an MDO must be a cause or an aggravating factor of the violent crime for which the prisoner was sentenced to prison. [Citation.] The ‘diagnosed mental disorder’ of an SVP, by contrast, need not have contributed to the prior ‘sexually violent offense.’ [Citation.] The MDO Act considers, at least in part, past evaluation and treatment, while the SVPA considers only the likelihood of future sexually violent criminal behavior without commitment. [Citation.] Prisoners who suffer from conditions that may with treatment be kept in remission are the target of the MDO Act, whereas the SVPA covers prisoners whose conditions pose a risk of future sexually violent criminal behavior and who may never be completely treated.” (People v. Buffington, supra, at pp. 1162-1163.) Given the differences in the statutory schemes, the reasons for making the SVP term indeterminate do not necessarily apply to MDOs or NGIs. Defendant has failed to meet his burden of establishing that the disparity regarding the duration of confinement denies him equal protection.
In support of earlier proposed legislation to lengthen an SVP commitment from two years to an indeterminate term, the Department of Mental Health reported: “ ‘The current two-year commitment term has shown to be inadequate for a[n] SVP to complete the treatment. To date, no SVP has completed the self-paced, five-phase treatment plan in just two years. Experience has shown that it typically takes four or more years for an individual to successfully complete all treatment phases necessary for conditional release into the community on outpatient status. As a result, the current construct of the SVP Act encourages a false expectation that SVPs will typically complete treatment within two years.’ ” (Assem. Comm. on Public Safety, Analysis of Sen. Bill No. 864 (2005-2006 Reg. Sess.) as amended March 8, 2006, at p. 16.)
D. Proposition 83 Post-commitment Procedures
After the trial court issued its order of commitment in this case, the SVPA was again amended by Proposition 83 on the November 2006 ballot. (Prop. 83, approved Nov. 7, 2006, eff. Nov. 8, 2006.) “Proposition 83 amended the SVPA as it existed prior to Senate Bill 1128. Proposition 83 did not amend the SVPA in exactly the same manner as Senate Bill 1128. (Compare § 6604.1, subd. (b) with Stats. 2006, ch. 337, § 56 [former § 6604.1, subd. (b) under Sen. Bill 1128.].)” (Whaley, supra, 160 Cal.App.4th at p. 787.) “Proposition 83 incorporated additional amendments to the SVPA beyond those provided by Senate Bill 1128. (See, e.g., § 6600, subd. (a)(1).)” (Whaley, supra, at p. 787.) In addition, Proposition 83 substantially amended the procedures by which a committed SVP can seek his release under sections 6605 and 6608. (Prop. 83, §§ 29, 30.)
Defendant directs the major portion of his argument on appeal to a challenge to the constitutionality of the new procedures by which a person once adjudicated an SVP can obtain a release from commitment. He contends that under revised sections 6605 and 6608, unless the Department of Mental Health determines that the person no longer meets the definition of an SVP, that person is denied the right to a jury trial and the burden of proof has been impermissibly shifted to the SVP. These arguments, however, are premature and not properly before us. Proposition 83 was not in effect when defendant’s order of commitment was entered, and its provisions were not considered by the court below. Because we may affirm without addressing the constitutionality of the Proposition 83 amendments, we decline to address the issues at this time. (See People v. Garcia (1999) 21 Cal.4th 1, 11-12; Whaley, supra, 160 Cal.App.4th at pp. 803-804; California State Electronics Assn. v. Zeos Internat. Ltd. (1996) 41 Cal.App.4th 1270, 1274; People v. Carroll, supra, 158 Cal.App.4th at p. 508, fn. 2; but see People v. McKee, supra, __ Cal.App.4th at pp. __-__ [2008 Cal.App. Lexis 375 at pp. *17-*68] [court addresses constitutional challenges to Proposition 83 amendments regardless of any ripeness deficiency].) If and when defendant seeks release from commitment, he will be entitled to challenge the post-commitment procedures enacted by Proposition 83.
DISPOSITION
The order of commitment is affirmed.
We concur: McGuiness P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.