Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS972028
MIHARA, J.
Richard Michael Martinez appeals from 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 Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Appellant contends that the trial court erred in denying his motion to dismiss the commitment petition after the Department failed to evaluate him pursuant to a valid standardized assessment protocol. Appellant also challenges the constitutionality of the SVPA, as amended in 2006 by Proposition 83, on due process, equal protection, ex post facto, and double jeopardy grounds. We reject these contentions and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The underlying facts are not relevant to the issues on appeal, because appellant challenges only the prefiling procedures and the constitutionality of the SVPA.
On January 22, 2009, the People filed an amended petition seeking to recommit appellant as an SVP for an indeterminate term pursuant to the SVPA. Four days later, appellant moved to dismiss the petition on the ground that the standardized assessment protocol used to evaluate him was invalid. The trial court denied the motion. Following trial, a jury found true the allegation that appellant was a SVP within the meaning of section 6600. The trial court ordered appellant to be committed for an indeterminate term to the custody of the Department. (§ 6604.)
II. Discussion
A. Motion to Dismiss
Appellant contends that the trial court erred in denying his motion to dismiss the petition on the ground that his evaluation by mental health professionals was conducted pursuant to an “underground regulation.”
Section 6601, subdivision (c) requires that the Department develop and update a “standardized assessment protocol” (protocol) by which to evaluate individuals who may be SVPs. The protocol must “require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” Only after two professional mental health evaluators agree that an individual meets the criteria for being an SVP based on the protocol does the Department file a petition for involuntary commitment under the SVPA. (§ 6601, subds. (c)-(f), (h).)
“The purpose of this evaluation is not to identify SVP’s but, rather, to screen out those who are not SVP’s. ‘The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. “[T]he requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” ’ (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process. (Ibid.)” (People v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).)
The Department published the Clinical Evaluator Handbook and Standardized Assessment Protocol (2007) for the purpose of conducting the SVP evaluations prescribed under section 6601. In August 2008, the Office of Administrative Law (OAL) concluded that certain provisions of this handbook met the definition of a regulation and that these provisions should have been adopted pursuant to the Administrative Procedures Act (APA) (Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19, p. 13.) A regulation that is adopted in violation of the APA is invalid and is called an “underground regulation.” (Cal. Code Regs., tit. 1, § 250.)
Appellant claims that the Department’s failure to evaluate him pursuant to a valid protocol deprived the trial court of fundamental jurisdiction. The People respond that appellant failed to challenge the filing of the petition by writ, he has failed to show prejudice, and the protocol was not invalid. Assuming for the sake of argument that the protocol was invalid, we conclude that the trial court acted in excess of, rather than without fundamental, jurisdiction, and appellant has failed to establish prejudice.
“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Lack of jurisdiction may also be applied more broadly to cases in which, “though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Ibid.) “Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. [Citations.] By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver... and forfeiture....” (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.)
Medina, supra, 171 Cal.App.4th 805 is instructive. In that case, the defendant argued that the Department had failed to evaluate him pursuant to a valid protocol, and thus the trial court lacked jurisdiction to proceed. (Medina, at p. 811.) The Medina court reasoned: “As to personal jurisdiction, there is no evidence to suggest, and Medina does not contend, that he lacked minimum contacts with the State of California [citations] or that he was not served with the documents necessary to initiate proceedings. [Citations.] As to subject matter jurisdiction, the superior court was undoubtedly the appropriate court to hear the commitment petition (Welf. & Inst. Code, §§ 6602, 6604), and there is no claim of untimeliness. (See Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1171.)” (Medina, at p. 816.) Thus, the court concluded that the issue was whether “the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction.” (Medina, at p. 816.) The court then held that the defendant forfeited his challenge to the procedures that occurred before the petition was filed because he admitted the allegations in the petition. (Medina, at p. 817.)
In an analogous case, the court in In re Wright (2005) 128 Cal.App.4th 663 (Wright) reached the same conclusion regarding the trial court’s jurisdiction. In Wright, the two initial evaluators did not agree on whether the defendant should be committed as an SVP. (Wright, at p. 667.) Pursuant to section 6601, subdivision (e), two “independent professionals” were then appointed, and the defendant was found to be an SVP following trial. (Wright, at pp. 667-669.) The defendant appealed, and the reviewing court rejected his sufficiency of the evidence challenge. (Wright, at p. 669.) The defendant then brought a petition for writ of habeas corpus. (Ibid.)
The Wright court assumed that one of the mental health professionals did not meet the criteria of section 6601, subdivision (g), which required that he have a doctoral degree in psychology. (Wright, supra, 128 Cal.App.4th at p. 672.) The court next discussed the effect of the error. (Wright, at pp. 672-675.) Noting that the SVPA does not require that the evaluations be alleged or appended to the petition, and the People are not required to prove their existence at either the probable cause hearing or at trial, the court stated the issue before it: “whether [the defendant] was deprived of due process... where one of two evaluations supporting a petition was defective, but a trial court found probable cause to proceed to trial on the petition and the individual was committed after receiving a trial on the merits.” (Wright, at pp. 672-673.) The Wright court concluded that the trial court was not without fundamental jurisdiction. “Illegalities in pretrial commitment proceedings that are not ‘jurisdictional in the fundamental sense,’ are not reversible error per se on an appeal from the subsequent trial. Rather, the ‘defendant [must] show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.’ (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).)... [¶] Irregularities in the preliminary hearing under the Act are not jurisdictional in the fundamental sense and are similarly subject to harmless error review. (People v. Talhelm [2000] 85 Cal.App.4th [400], 405.) Thus, reversal is not necessary unless the individual can show that he or she was denied a fair trial or had otherwise suffered prejudice. (Ibid.)” (Wright, supra, 128 Cal.App.4th at p. 673.)
For the reasons outlined in Medina and Wright, here, assuming the protocol was invalid, the error was not jurisdictional in the fundamental sense. We turn now to the issue of prejudice. As the Medina court noted, the purpose of the evaluations is “to screen out those who are not SVP’s... [and] [t]he legal determination that a particular person is an SVP is made during the subsequent judicial proceedings.” (Medina, supra, 171 Cal.App.4th at 814.) These proceedings include a probable cause hearing (§ 6602) and a trial (§§ 6603, 6604). At the probable cause hearing the People are required to show “the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. [Citation.]” (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.) After that determination is made, the matter proceeds to trial where the prosecution has the burden of proving beyond a reasonable doubt that the individual meets the criteria of the SVPA. (§§ 6603, 6604.) Here, the trial court found that there was probable cause to believe that appellant met the criteria of the SVPA. Following trial, a jury found him to be an SVP. Appellant has not challenged the sufficiency of the evidence at either the probable cause hearing or trial. Accordingly, since the jury found that appellant was an SVP beyond a reasonable doubt, he has failed to establish any prejudice.
Appellant, however, argues that any analogy to Pompa-Ortiz is “deeply flawed” because that case “says nothing about authority to file the complaint that initiates the preliminary examination process.” There is no merit to this argument. As in Pompa-Ortiz, the trial court in the present case had power over the person and the subject matter, and thus jurisdiction in the fundamental sense. (Medina, supra, 171 Cal.App.4th at p. 816.)
Appellant’s reliance on Butler v. Superior Court (2000) 78 Cal.App.4th 1171 (Butler), Peters v. Superior Court (2000) 79 Cal.App.4th 845 (Peters), and People v. Superior Court (Gary) (2000) 85 Cal.App.4th 207 is misplaced. In Butler, the prosecutor filed a petition under the SVPA based on only one evaluation by a mental health professional. (Butler, at p. 1174.) This court issued a writ of mandate directing the trial court to dismiss the petition. (Ibid.) In an identical factual situation, the court in Peters issued a writ of mandate ordering the trial court to set aside its order denying the defendant’s motion to dismiss. (Peters, at pp. 847, 851.) In Gary, the trial court dismissed the petition for recommitment under the SVPA because one of the mental health professionals recommended against recommitment. (Gary, at p. 211.) The reviewing court denied the People’s writ petition. (Gary, at p. 220.) In contrast to these cases, here, appellant did not file a writ petition and the matter proceeded to trial. As previously discussed, given the procedural posture of the case, appellant was required to show prejudice at trial.
The California Supreme Court has granted review on constitutional challenges to the SVPA, as amended in 2006, in the following cases: People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823; People v. Riffey (2008) 163 Cal.App.4th 474, review granted August 20, 2008, S164711; People v. Johnson (2008) 162 Cal.App.4th 1263, review granted August 13, 2008, S164388; People v. Boyles (2008) 164 Cal.App.4th 1266, review granted October 1, 2008, S166167; People v. Garcia (2008) 165 Cal.App.4th 1120, review granted October 16, 2008, S166682; and People v. Force (2009) 170 Cal.App.4th 797, review granted April 15, 2009, S170831.
1. Statutory Background
When the SVPA was enacted, it provided for a two-year civil commitment for individuals who were found to be SVPs beyond a reasonable doubt after a trial. (People v. Williams (2003) 31 Cal.4th 757, 764.) The two-year commitment could then be extended after a trial in which the prosecutor carried the same burden of proof. (Former §§ 6604, 6604.1, 6605, subds. (d), (e).)
On November 7, 2006, the voters enacted Proposition 83. This initiative went into effect the following day, and it amended the SVPA to extend the commitment term from two years to indeterminate. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 137.)
Under the amended SVPA, when a court or jury determines beyond a reasonable doubt that a person is an SVP, “the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement....” (§ 6604.) The committed person then “shall have a current examination of his or her mental condition made at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community.” (§ 6605, subd. (a).) The Department must file this report with the court and serve it on both parties. (Ibid.) The committed person may retain an expert to examine him or her or have one appointed by the court if the person is indigent. (Ibid.) This expert shall have access to the committed person’s records. (Ibid.)
Section 6600, subdivision (a)(1) defines an SVP as “a person who has been convicted of a sexually violent offense against one or more victims 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.”
When the Department determines that the committed person is no longer an SVP, it authorizes him or her to file a petition for conditional release or unconditional discharge. (§ 6605, subd. (b).) After the court receives a petition for conditional release or unconditional discharge, it must order a show cause hearing. (Ibid.) “If the court at the show cause hearing determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue.” (§ 6605, subd. (c).) Each party has the right to experts and a jury at this hearing, and the committed person is “entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” (§ 6605, subd. (d).) The state bears the burden of proving beyond a reasonable doubt “that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.)
Even if the Department does not authorize a petition, a committed person may petition for conditional release or unconditional discharge under section 6608. In bringing this petition, the committed person is entitled to the assistance of counsel. (§ 6608, subd. (a).) The court may summarily deny this petition if it determines that the petition is frivolous. (Ibid.) When the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is not longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) If the trial court finds that the committed person would not be “a danger to others due to his or her diagnosed medical disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program... for one year.” (§ 6608, subd. (d).) After one year, the trial court shall hold a second hearing to determine if the committed person should be unconditionally released. (Ibid.) If the trial court denies the petition, the committed person must wait one year to file another petition. (§ 6608, subd. (h).) After a section 6608 petition has been denied, either as frivolous or after a hearing, the trial court shall deny any subsequent petitions under section 6608 “unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted.” (§ 6608, subd. (a).)
2. Due Process
Appellant challenges his indeterminate commitment under the SVPA, as amended in 2006, on due process grounds.
It is undisputed that individuals committed under the SVPA are entitled to due process protections. “[F]or the ordinary citizen, commitment to a mental hospital produces ‘a massive curtailment of liberty,’ [citation], and in consequence ‘requires due process protection.’ [Citations.]” (Vitek v. Jones (1980) 445 U.S. 480, 491-492.) However, the state may restrict this interest in appropriate circumstances. (Kansas v. Hendricks (1997) 521 U.S. 346, 356 (Hendricks).) To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ [Citation.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 335 (Mathews).) The court has applied this test to involuntary civil commitments. (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington).)
We first note that the initial commitment hearing satisfies federal due process requirements. At this hearing the SVPA requires the prosecutor to prove beyond a reasonable doubt that a person meets the definition of an SVP, that is, that he or she has been convicted of a sexually violent offense and has a diagnosed mental disorder that makes the person a danger to others. Appellant does not challenge the procedures governing this hearing. Instead, he focuses on the risk that a committed person will continue to be involuntarily committed even though he or she is no longer mentally ill and a danger to others. He contends that the lack of periodic judicial review and the shifting of the burden of proof from the state to the committed person greatly increase this risk.
Nothing in the SVPA affects the trier of fact’s finding regarding the qualifying offense at the initial commitment hearing. Since this finding remains valid during the annual reviews or future proceedings, it does not increase the risk of an improper commitment. Turning to the committed person’s mental disorder and dangerousness, one can reasonably infer that this condition will continue for an undetermined period of time. (See Jones v. United States (1983) 463 U.S. 354, 368 [“And because it is impossible to predict how long it will take for any given individual to recover—or indeed whether he will ever recover—Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review for the patient’s suitability for release.”].) At issue in the present case is whether the review procedures are adequate to ensure that the committed 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.)
Contrary to appellant’s claim, the lack of periodic judicial review does not create an undue risk of erroneous deprivation of a committed person’s liberty interest. The SVPA requires an annual review of the committed person’s mental health status, which is then forwarded to the court and the prosecutor. The committed person is also entitled to an evaluation by an independent expert. When the committed person no longer meets the definition of an SVP, the Director of Mental Health is required to authorize him or her to file a petition for conditional release or unconditional discharge. Since the goal of the mental health system is to treat mentally ill patients so that they may function as healthy individuals in the community, we can infer that medical professionals and the Director of Mental Health are not biased against committed persons or their release. Moreover, the frequency of the medical reviews reduces the risk that the committed person will be confined longer than is necessary. Balanced against these considerations, the value of judicial review every two years is slight. As the United States Supreme Court has noted, “ ‘neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.’ ” (Parham v. J.R. (1979) 442 U.S. 584, 607, quoting In re Roger S. (1977) 19 Cal.3d 921, 942 (Clark, J., dissenting.)
Appellant claims that the Department controls whether a person can file a petition under section 6605, subdivision (b). However, nothing in the record supports appellant’s speculation that the Department would fail to authorize a petition when it is appropriate. In any event, section 6608 provides that a committed person can file a petition when the Department fails to provide such authorization. Appellant argues that this alternative is inadequate because section 6608 does not provide for an independent expert. Conceding that section 6605, subdivision (a) requires the Department to report annually on a committed person’s mental condition, he claims that “the evaluator is selected by the Department.” We find no such statutory language. Section 6605, subdivision (a) states in relevant part that “[t]he person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.”
We next consider whether there is a risk of an erroneous determination under the SVPA provisions regarding the burden of proof. When the Department has not authorized the filing of a petition, the committed person, who is entitled to the assistance of counsel, may file a petition for release. If the trial court determines that the petition is frivolous, there is no risk of an erroneous determination as to the burden of proof. In cases where the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is no longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) Under these circumstances, the lack of evidence rather than the burden of proof will make it difficult for the committed person to prevail. For this reason, the value in shifting the burden of proof to the prosecutor would be slight. Thus, placing the burden of proof on the committed person at this hearing creates little risk of an erroneous deprivation of liberty.
Turning now to the state’s interest, we find that the state has a substantial interest in providing treatment to individuals who suffer from mental illness and in protecting the public from individuals whose mental illness makes them a danger to others. (Addington, supra, 441 U.S. at p. 426.) The state also has a substantial interest in preserving its resources by avoiding the unnecessary relitigation of cases. (See United States v. Wattleton (11th Cir. 2002) 296 F.3d 1184, 1200-1201.)
After applying the balancing test set forth in Mathews, supra, 424 U.S. 319, we conclude that the SVPA, as amended in 2006, has sufficient safeguards to protect the individual’s liberty interest while providing for the state’s significant interests.
3. Equal Protection
Appellant next contends that the amended SVPA violates the equal protection clauses of the federal and state Constitutions, because it provides for an indeterminate term “based on less stringent standards compared to other commitment schemes.” The Mentally Disordered Offender Act (MDO) (Penal Code § 2960 et seq.) provides for a maximum one year commitment that may be extended for additional one-year terms. (Pen. Code, §§ 2970, 2972, subd. (c).) An initial one-year conservatorship and succeeding one-year conservatorships may be sought under the Lanterman-Petris-Short Act (LPSA). (§§ 5350, 5361.) The statutory scheme for extended detention of juveniles (§ 1800 et seq.) provides for commitment for up to two years and successive recommitment for two year periods. (§ 1802.) An incompetent criminal defendant may be committed for no more than three years or “a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged in the information, indictment, or misdemeanor complaint, whichever is shorter,” before being returned to the committing court. (Pen. Code, §§ 1370, subd. (c)(1), 1370.01, subd. (c)(1).) Appellant asserts that, “[a]t the very least,” SVPs are similarly situated to MDO patients since “[b]oth are prisoners nearing the end of their terms” and are “committed because a mental disorder renders them an [un]acceptable danger to society.”
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “ ‘ “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.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley); see Lawrence v. Texas (2003) 539 U.S. 558, 579 [“The Equal Protection Clause of the Fourteenth Amendment ‘is essentially a direction that all persons similarly situated should be treated alike.’ ”].)
Though both SVPs and MDOs are involuntarily committed for treatment, they are not similarly situated for purposes of the law challenged. An SVP is committed for treatment, in part, based on the danger that he or she will engage in sexually violent criminal behavior while an MDO is committed for treatment, in part, based on the substantial danger he or she will physically harm others. Thus, the dangers posed by SVPs and MDOs to the community are different. More importantly, however, “the MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets person with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b).)” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) As the People point out, the voters who passed Proposition 83 “recognized that SVPs stand apart from other civil committees in their likelihood of reoffense and resistance to treatment.” In an uncodified statement accompanying Proposition 83, the voters declared: “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,... Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b), p. 127.) This distinction is critical, and explains why SVPs and MDOs are not similarly situated for purposes of how long they should be confined and treated, or how they obtain judicial review of their commitments.
Appellant has also failed to show that those committed under the LPSA are similarly situated to those committed under the SVPA. “Although the LPS Act and the SVPA are both civil commitment statutes, the Legislature enacted these schemes with different purposes in mind. The LPS Act is a comprehensive scheme designed to address a variety of circumstances in which a member of the general population may need to be evaluated or treated for different lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14-day treatment]; § 5300 [180-day commitment for the imminently dangerous]; § 5260 [extended commitment for the suicidal]; § 5350 [30-day temporary conservatorship or one year conservatorship for the gravely disabled].)” (Cooley, supra, 29 Cal.4th at p. 253.) “In order to be subject to renewable one-year conservatorships under the LPS Act, one must be found to be gravely disabled either by being manifestly unable to take care of oneself or being in custody on a criminal charge and found incompetent to stand trial and having a mental disorder causing one to be dangerous to others. (§§ 5350, 5008, subd. (h), 5361; see People v. Karriker (2007) 149 Cal.App.4th 763, 774-775.)” (In re Smith (2008) 42 Cal.4th 1251, 1268.) “The purpose of conservatorship... is to provide individualized treatment, supervision, and placement.” (§ 5350.1) Though a court must consider protection of the public in appointing a conservatorship for a gravely disabled incompetent criminal defendant (§ 5350, subd. (b)(2)), the charged felony is unproven (§ 5008, subd. (h)(2)).) In contrast, the SVPA “narrowly targets ‘a small but extremely dangerous group’ of sexually violent predators....” (Cooley, supra, 29 Cal.4th at p. 253), who have been convicted of a sexually violent offense (§ 6600, subd. (a)(1)) and pose “a substantial danger, that is, a serious and well-founded risk, of committing a sexually violent predatory crime if released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 988.) Thus, those committed under the LPSA and the SVPA are not similarly situated with regard to the perceived dangerousness of these groups.
Nor is an SVP similarly situated to a person subject to an order for continued detention by the Department of Corrections and Rehabilitation, Division of Juvenile Facilities [formerly Youth Authority] under section 1800 et seq. “The fact that Youth Authority wards committed under section 1800 and adults committed as SVP’s or MDO’s are considered dangerous due to mental disorders and therefore are subject to commitment for treatment and the protection of the public does not lead to the conclusion that ‘persons committed under California’s various civil commitment statutes are similarly situated in all respects. They are not.’ (People v. Buffington (1999) 74 Cal.App.4th 1149, 1158.) Although section 1800 is a civil commitment statute, as are the SVPA and MDOA, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of the section 1800 extended detention scheme....” (In re Lemanuel C. (2007) 41 Cal.4th 33, 48.)
“In contrast to the SVPA and the MDOA, section 1800 broadly encompasses all youthful offenders committed to the Youth Authority who, if discharged from that facility, ‘would be physically dangerous to the public’ because of their mental deficiency, disorder, or abnormality. (§ 1800.)” (In re Lemanuel C., supra, 41 Cal.4th at p. 48.) As previously stated, the SVPA focuses on sexually violent predators who are extremely dangerous. (Cooley, supra, 29 Cal.4th at p. 253.) A person committed under the SVPA need not be amenable to treatment (§ 6606, subd. (b)), and the primary purpose of commitment under the SVPA is to protect the public; “treatment is a secondary objective.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1192.) The principal purpose of commitment under section 1800 et seq. continues to be “correction and rehabilitation.” (§ 1700; see § 1802.) Thus, people subject to extended detention under section 1800 et seq. are not similarly situated to SVPs, a group that is perceived to be especially dangerous, not necessarily amenable to treatment, and less likely to be cured.
A person committed under the SVPA is also not similarly situated to a criminal defendant who has been confined due to mental incompetence to stand trial. (See Pen. Code, §§ 1367 [incompetent criminal defendants “cannot be tried or adjudged to punishment”], 1368, subd. (a) [criminal proceedings must be suspended when competency hearing ordered], 1370.01, subd. (a)(1) [“If the defendant is found mentally incompetent, the trial or judgment shall be suspended until the person becomes mentally competent”].) An incompetent criminal defendant may be confined for treatment for the purpose of “promot[ing] the defendant’s speedy restoration to mental competence.” (See Pen. Code, §§ 1370, subd. (a)(1)(B)(i), 1370.01, subd. (a)(1)(B)(i).) In contrast to the SVPA, protection of the public is not the purpose of incompetency proceedings (see People v. Bye (1981) 116 Cal.App.3d 569, 576) and future dangerousness is not a factor in determining the length of confinement. (See Pen. Code, §§ 1370, subds. (b), (c), 1370.01, subds. (b), (c); see also Jackson v. Indiana (1972) 406 U.S. 715, 738; In re Davis (1973) 8 Cal.3d 798, 801.)
4. Ex Post Facto and Double Jeopardy
Appellant next argues that the amendments to the SVPA render it punitive, and thus his indeterminate commitment violates state and federal constitutional prohibitions against ex post facto laws.
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) Thus, those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts” are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43.) The ex post facto clause applies exclusively to penal statutes, and if a commitment statute does not impose punishment, it does not implicate ex post facto protection. (Hendricks, supra, 521 U.S. at pp. 370-371.) We use the same analysis in considering claims arising under the federal and state ex post facto clauses. (People v. Helms (1997) 15 Cal.4th 608, 614.)
In determining whether a proceeding is civil or criminal, we must first ascertain the intent of the voters who enacted Proposition 83. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.) Appellant focuses on the Official Voter Information Guide as indicative of the voters’ intent to punish SVPs. The guide states: “It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sex offenders.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 31, p. 138.) He points out that the voters then carried out this purpose through the amendment of Penal Code section 209, subdivision (b)(1) [kidnapping to commit a sex crime], Penal Code section 220, subd. (b) [first degree burglary to commit a sex crime], and Penal Code section 269 [aggravated sexual assault of a minor] by providing for indeterminate terms for these offenses. Since the voters also decided that a commitment under the SVPA required an indeterminate term, appellant maintains that the voters’ intent was punitive. He further notes that Proposition 83 requires approval by two-thirds of the membership of each house or by a statue that has been approved by the voters. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 33, p. 138.)
The California Supreme Court recently noted: “Proposition 83 amended the Penal Code as well as the Welfare and Institutions Code. The intent to punish sexually violent predators through Penal Code provisions that apply to criminal prosecutions does not establish an intent to punish sexually violent predators through Welfare and Institutions Code provisions that apply to civil commitment proceedings. Although Proposition 83 made amendments to both the criminal and the civil schemes, it recognized the different purposes of these two schemes, stating in the preamble: ‘Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.’ (Voter Information Guide, Gen. Elect. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (h), p. 127, italics added.)” (People v. Allen (2008) 44 Cal.4th 843, 861-862 [Fifth Amendment’s guarantee against compulsory self-incrimination and Sixth Amendment rights to self-representation and to confront witnesses do not apply to civil proceedings under the SVPA].) Thus, the voters expressed their intent that the amended SVPA would strengthen and improve the laws that relate to the commitment and control of SVPs. The SVPA, in turn, provides treatment, not punishment, for SVPs.
Regardless of the voters’ stated intent, a reviewing court may reject it “where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ [Citation.]” (Hendricks, supra, 521 U.S. at p. 361.) Appellant asserts that the SVPA is punitive in effect because an SVP may be committed for an indeterminate rather than a two-year term.
In determining whether a commitment is civil or criminal, this court must consider “whether the duration of confinement is ‘linked to the stated purposes of the commitment, namely, to hold the person until his or her mental abnormality no longer causes him to be a threat to others.’” (Hubbart v. Superior Court (1999)19 Cal.4th 1138, 1176, quoting Hendricks, supra, 521 U.S. at p. 363.) Appellant acknowledges that the California Supreme Court held that the former SVPA did not violate the ex post facto clause. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177.) The Hubbart court stated that “each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again, proves, beyond a reasonable doubt, that the person is dangerous and mentally impaired. [Citation.] Although committed for two years, the SVP is entitled each year to a new mental examination and to judicial review of the commitment to determine whether his condition has changed such that he no longer poses a danger to the health and safety of others.” (Ibid.) Here, however, the amendments to the SVPA have not altered the potential length of an SVPs commitment period, which remains dependent on the successful treatment of the SVP’s mental disorder.
Appellant argues that the statutory scheme upheld in Hendricks is distinguishable from that at issue in the present case. He points out that the statutory scheme in Hendricks did not require a criminal conviction as a prerequisite for a commitment. However, as the Hendricks court noted, “the fact that the Act may be ‘tied to criminal activity’ is ‘insufficient to render the statut[e] punitive.’ ” (Hendricks, supra, 521 U.S. at p. 362, quoting United States v. Ursery (1996) 518 U.S. 267.)
Moreover, though the commitment to a state hospital involves an affirmative restraint, it has not historically been regarded as punishment. As the court explained in Hendricks, “ ‘the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.’ The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. The Court has, in fact, cited the confinement of ‘mentally unstable individuals who present a danger to the public’ as a classic example of nonpunitive detention.” (Hendricks, supra, 521 U.S. at p. 363, internal citations omitted.)
In Hendricks, the court also recognized that “unlike a criminal statute, no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead the commitment determination is made based on a ‘mental abnormality’ or ‘personality disorder’ rather than on one’s criminal intent.” (Hendricks, supra, 521 U.S. at p. 362.) The same standard holds true for the SVPA, which bases a commitment determination on the diagnosis of a “mental disorder.” (§ 6600, subds. (a)(1), (c).) Contrary to appellant’s claim, the SVPA does not apply to criminal behavior. It applies to a mental condition that may lead to criminal behavior if the person is not confined and treated. The purpose for the confinement is to provide treatment and protection for the public. This purpose was not transmuted into a punitive one with the change of the commitment term from two years to an indeterminate term. Since the SVPA continues to provide a means to obtain release once a committed person no longer meets the definition of an SVP, the confinement cannot be deemed excessive treatment.
We also note that “[w]here the State has ‘disavowed any punitive intent’; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted release upon a showing that the individual is no longer dangerous or mentally impaired,” the United States Supreme Court has found no punitive intent. (Hendricks, supra, 521 U.S. at pp. 368-369.) Based on these considerations, we conclude that the amended SVPA is not punitive, and thus appellant’s ex post facto claim fails.
Appellant also contends that the amended SVPA violates the prohibition against double jeopardy. A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.) Accordingly, since we have found that the amended SVPA is not punitive in nature, appellant’s double jeopardy contention has no merit.
C. Ineffective Assistance of Counsel
Appellant next argues that he was deprived of the effective assistance of counsel because counsel failed to challenge the SVPA on due process, equal protection, ex post facto, and double jeopardy grounds.
In order to establish ineffective assistance of counsel, an appellant must show that counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687.) Since we have concluded that appellant’s constitutional claims are without merit, he has failed to demonstrate prejudice. Thus, we reject his argument.
III. Disposition
The order is affirmed.
WE CONCUR: RUSHING, P. J., ELIA, J.