Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 17452C
BLEASE, J.
William Mase was committed as a sexually violent predator (SVP) for a period of two years in 2000 and received two subsequent two-year extensions, the latest of which expired in April 2006. Mase’s appeal is from his third two-year extension, following a jury finding that he is an SVP within the meaning of Welfare and Institutions Code section 6600 et seq., the Sexually Violent Predators Act (SVPA).
References to an unnamed section are to the Welfare and Institutions Code.
The People filed a cross-appeal claiming that the trial court erred in not committing Mase for the indeterminate term mandated by the 2006 amendments to the SVPA, which took effect prior to Mase’s trial.
The 2006 amendments are contained in an initiative measure, which passed on the November 2006 ballot (Prop. 83, § 24, p. 135, approved Nov. 7, 2006), and legislation, Stats. 2006, ch. 337, § 53, effective September 20, 2006. The legislation was in force for two months preceding the enactment of the proposition. The two enactments are largely congruent.
In the People’s appeal we consider Mase’s claim that an indeterminate term retroactively increases the term of commitment in violation of the federal Constitution because the petition invoking a new commitment was pending on the effective date of the 2006 amendments. We shall rule in favor of the People.
An SVP is a person who has been convicted of a sexually violent criminal offense 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.” (§ 6600, subd. (a)(1).) Under the SVPA the defendant’s mental state is determined at the time of the defendant’s hearing. Since the defendant’s hearing did not occur until after the effective date of the 2006 amendments, an indeterminate term is not retroactive because it did not “attach new legal consequences to conduct that was completed before the effective date of the law.” (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1289.)
Nonetheless, Mase challenges the indeterminate term as violative of the double jeopardy, cruel and unusual punishment and ex post facto clauses of the federal Constitution. In Hubbart v. Superior Court (1999)19 Cal.4th 1138 (Hubbart), the court, following Kansas v. Hendricks (1997) 521 U.S. 346 [138 L.Ed.2d 501] (Hendricks), rejected such challenges to the prior SVPA on the ground the act is civil and not criminal or punitive in nature. “[N]othing in 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. . . . [T]he 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, supra, 19 Cal.4th at p. 1176.)
The question in this case is whether the procedural changes wrought by the 2006 amendments transformed the SVPA procedure into a criminal procedure subject to the ex post facto and due process clauses of the federal Constitution. That turns on whether the 2006 changes preserve an adequate opportunity for an SVP to secure a judicial determination whether the person’s mental condition justifies continued commitment.
The 2006 amendments repealed the law which limited an SVPA commitment to two years and replaced it with an indeterminate term. (§ 6604; Stats. 2006, ch. 337, § 55.) Two procedures for challenging an indeterminate commitment are authorized. First, if the Department determines that the person no longer meets the definition of an SVP, based upon an annual report of the person’s mental condition, it shall authorize the person to file a petition for a judicial hearing at which the state bears the burden of proof beyond a reasonable doubt that the person remains an SVP. (§ 6605.) The second retains the existing law by which the person may file a nonfrivolous petition for a judicial hearing at which the person bears the burden of proof, by a preponderance of the evidence, that he or she no longer is an SVP. (§ 6608.)
We shall conclude that under Hubbart the 2006 changes in procedure preserve an adequate opportunity for an SVP to secure a judicial determination of the mental condition that justifies his or her continued commitment and thereby do not transform a civil into a criminal procedure.
Lastly, we shall conclude that the indeterminate term does not violate the equal protection clause of the 14th Amendment because persons subject to the SVPA are not similarly situated to those committed pursuant to the Mentally Disordered Offender Act (MDOA, Pen. Code, § 2960 et. seq.) or pursuant to a finding of not guilty by reason of insanity (NGI). (See People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
We shall modify the judgment to provide for an indeterminate term of commitment and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to Mase’s California conviction he suffered a New Mexico conviction in 1964 for aggravated sexual assault on a 10- year-old boy, for which he served nine years. In 1990, Mase was convicted after pleading guilty to forcible sodomy (Pen. Code, § 286, subd. (c)(2) and forcible rape (Pen. Code, § 261, subd. (a)(2)). He was released on parole on June 15, 1995, but was returned to custody in October of that year when he violated parole by having contact with a child under the age of 18. Released on parole a second time on December 30, 1996, he was returned to custody again on July 28, 1998, after violating parole by again having contact with a child and by possessing children’s toys.
Mase’s first order of commitment under the SVPA was entered on March 31, 2000. He was subsequently recommitted under the SVPA on December 20, 2002, and again on September 2004.
The People initially filed this petition for recommitment for a period of two years, but later filed an amended petition pursuant to newly amended section 6604 for an extended commitment for an indeterminate term.
Mase waived his right to counsel and represented himself at the hearing. The prosecution presented the opinions of two psychologists, Dr. Dawn Starr and Dr. Jeremy Coles. Dr. Starr opined that Mase suffered from paraphilia not otherwise specified (NOS). She testified she believed Mase was not ready to be released because he was extremely dangerous, and that he was likely, in her opinion, to commit future sexually violent predatory offenses.
Dr. Coles diagnosed Mase with three current mental disorders: paraphilia NOS, alcohol abuse, and personality disorder NOS with antisocial and narcissistic traits. Dr. Coles opined Mase’s risk of committing another sex crime was medium high.
Dr. Terence Campbell, a psychologist, testified for Mase. He diagnosed Mase as suffering from paraphilia. He testified there were no risk factors that pointed to Mase having a higher risk of reoffending than other sex offenders generally.
The jury found that Mase was a sexually violent predator and should be recommitted. The trial court ordered Mase recommitted for a two-year term.
I
Mase’s Appeal
A. Self-Representation
Mase represented himself at the commitment hearing. He now claims that the trial court erred when it permitted him to represent himself. He claims his self-representation was prejudicial per se, and resulted in a violation of his rights of due process and a fair trial. We shall conclude that whether or not Mase had a statutory right to self-representation, his right to counsel was statutory, not constitutional, and he validly waived that statutory right.
A criminal defendant has a Sixth Amendment right to self-representation. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].) However, there is no constitutional right to self-representation in an SVPA proceeding because it is not a criminal prosecution, but is instead a civil commitment proceeding having the non-punitive purpose of treating mentally disordered individuals who cannot control their sexually violent criminal behavior. (People v. Fraser (2006) 138 Cal.App.4th 1430, 1446.)
However, the Fourth Appellate District has held that in commitment proceedings for mentally disordered offenders (MDO) there is a statutory right to self-representation. (People v. Williams (2003) 110 Cal.App.4th 1577 (Williams).) There, the defendant appealed his extended commitment as an MDO on the ground that the trial court had denied his motion to represent himself. (Id. at p. 1580.) The court held that because the MDO commitment statutes give a defendant the right to appointed counsel, a defendant has the concurrent right to refuse counsel and represent him or herself. (Id. at p. 1588.) The right is not constitutional, but statutory, and the trial court’s decision to allow or deny the request is “governed by due process principles and the decision is reviewed for an abuse of discretion.” (Id. at pp. 1588, 1591-1592.)
Similarly, the SVPA provides that a person subject to the act is entitled to appointed counsel, which could imply, under the reasoning in Williams, supra, a concurrent statutory right to refuse counsel. (§ 6603, subd. (a).)
We need not determine whether the SVPA, like the MDO, grants a statutory right to self-representation because the issue here is whether the right to counsel was validly waived. It is thus immaterial whether defendant had a statutory or common law right to self-representation. The SVPA proceeding was civil in nature, like an MDO proceeding, and as in the case of an MDO proceeding, the right to counsel is statutory in nature. (Williams, supra, 110 Cal.App.4th at p. 1591.)
The waiver of a statutory right is valid if it was knowing, voluntary, and intelligent. (In re Hannie (1970) 3 Cal.3d 520, 526; People v. Charles (1985) 171 Cal.App.3d 552, 559.) The knowing and voluntary requirements mean that the defendant understood the significance and consequences of the decision to represent himself, and the decision was uncoerced. (People v. Sullivan (2007) 151 Cal.App.4th 524, 545.) A knowing and intelligent waiver is one that demonstrates the defendant “‘understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the “dangers and disadvantages of self-representation.” [Citation.]’ [Citation.]” (Ibid.)
While the court should advise the defendant that self-representation is unwise, that he will be held to the standards of any attorney, that he will be up against an experienced prosecutor, and that he cannot appeal for ineffective assistance of counsel, no particular form of admonishment is required, and the real test of a valid waiver is whether the record demonstrates the defendant understood the disadvantages and risks of self-representation. (People v. Sullivan, supra, 151 Cal.App.4th at p. 546.)
In this case, this was Mase’s third recommitment trial, and he had represented himself in both prior recommitment trials. The trial judge in this case was the trial judge in Mase’s most recent recommitment trial. The trial court asked Mase if he understood his rights, or if he wanted them explained again. Mase replied, “I understand. We’ve been through this before.” The trial court told Mase he was entitled to a lawyer at public expense, but Mase chose to represent himself. Mase confirmed to the court that he was of sound mind. The trial court stated that in Mase’s prior experience representing himself he had handled everything from selection of the jury to closing argument, that Mase had spent two hours with the court and opposing counsel going through jury instructions, and that the law would be the same in this case. The court asked if Mase knew the procedures and the law, and Mase replied that he did. The court stated Mase would be allowed to represent himself, and appointed an investigator to assist him.
The record demonstrates that Mase understood the risks and disadvantages of representing himself. He had represented himself two previous times in an SVP commitment trial, and lost. The trial court acted within its discretion when it determined Mase’s waiver of counsel was knowing, voluntary and intelligent. No further admonitions were necessary under the circumstances.
At oral argument, defendant’s appellate counsel cited the recent United States Supreme Court case, Indiana v. Edwards (2008) U.S. [171 L.Ed.2d 345] (Edwards). That case held that a state may insist that a criminal defendant who is competent enough to stand trial, but suffers from a mental illness making him or her incompetent to conduct trial proceedings, be represented by counsel. The opinion appears to limit a criminal defendant’s right to self-representation where the court finds the defendant incompetent to try the case. However, we are not dealing with a defendant who has been denied self-representation because he has been found incompetent to represent himself. Instead, the trial court found Mase was mentally competent to represent himself based on his prior self-representation. This is consistent with Edwards, which held that the trial court “will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” (Id. at p. ___ [171 L.Ed.2d at p. 357].)
B. Kelly Rule
Mase made an in limine motion to exclude all of the People’s expert testimony on the ground it failed to meet the foundational requirements under Frye v. United States (1923) 293 F. 1013 (Frye) and People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Kelly, supra, held that expert testimony based on a “new scientific technique” requires proof that the technique is reliable. (People v. Therrian (2003) 113 Cal.App.4th 609, 614.) Before such expert testimony is admissible, Kelly requires the proponent to show: “‘(1) the technique has gained general acceptance in the particular field to which it belongs, (2) any witness testifying on general acceptance is properly qualified as an expert on the subject, and (3) correct scientific procedures were used in the particular case.’ [Citation.]” (People v. Therrian, supra, 113 Cal.App.4th at p. 614, fn. omitted.) As Frye has been superseded by the Federal Rules of Evidence (28 U.S.C.), California now refers to the foundational requirement for the admission of new scientific evidence as the Kelly rule or test. (People v. Soto (1999) 21 Cal.4th 512, 515, fn. 3.) The trial court denied the motion.
Mase concedes that expert medical opinions are not subject to the Kelly test, but argues the use of a statistical tool (in this case the Static-99) to determine whether a defendant falls within a category of people who are likely to reoffend is scientific evidence that should be admitted only after reliability has been established under the Kelly test. We disagree.
Two experts testified on behalf of the People at Mase’s trial. The first, Dr. Dawn Starr, a psychologist, testified that the law required the experts to indicate whether there is a likelihood that the defendant will commit future sexually violent predatory offenses. Dr. Starr stated she started with an instrument called the Static-99, which was a good predictor of reoffense. She stated she also looked at other risk factors. She stated the Static-99 has only moderate predictive accuracy, and that no actuarial instrument is 100 percent accurate.
Psychologist Dr. Jeremy Coles also testified as an expert on behalf of the People. He used two actuarial instruments on Mase, including the Static-99. He stated that no actuarial instrument was perfect, but they were the best tool for predicting reoffense. Dr. Coles also indicated that he considered other factors in making his assessment.
This court has previously considered and rejected Mase’s Kelly argument. In People v. Therrian, supra, we concluded that where the jury was informed that the Static-99 was not infallible and the expert considered other factors in forming an opinion, the testimony was properly admitted without a Kelly hearing. (113 Cal.App.4th at p. 616.) We find no reason to depart from our prior holding.
II
Statutory Changes in the SVPA
The People challenge the trial court’s imposition of a two-year commitment, arguing that the trial court should have imposed an indeterminate term pursuant to the 2006 amendments to the SVPA.
The SVPA was enacted in 1995 and took effect on January 1, 1996. (§ 6600 et seq.; Stats. 1995, ch. 763, § 3.) The scheme was found to provide for a civil commitment, precluding substantive due process and ex post facto challenges to the procedure. (Hubbart, supra, 19 Cal.4th 1138.)
On November 7, 2006, the voters passed Proposition 83, which amended the SVPA. At about the same time, the Legislature enacted similar amendments in Senate Bill No. 1128. (See fn. 2, supra.) Because defendant challenges the constitutionality of the amendments, we first summarize the pertinent provisions of the statutory scheme upheld in Hubbart, supra, and then set forth the changes made by Senate Bill No. 1128 and Proposition 83.
A. Version Approved in Hubbart
The SVPA defined an SVP as a person who (1) has been convicted of a specified “sexually violent offense against two or more victims” and (2) “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).) A “‘diagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (Id. at subd. (c).)
Section 6600, subdivision (a)(1) reduces the number of victims from two to one. However, since the defendant was convicted of two such offenses under the prior SVPA there is no warrant in this case to consider the validity of the change.
The initial commitment process for determining whether a convicted sex offender meets the definition of an SVP takes place in a series of administrative and judicial procedures. Generally, the Department of Corrections and Rehabilitation and the Board of Prison Terms screen inmates prior to their scheduled date of release from prison. (§ 6601, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) If, after reviewing the inmate’s history, prison officials find the inmate is likely to be an SVP, he or she is referred to the Department of Mental Health (DMH) for a full evaluation to determine whether the inmate meets the criteria for commitment. (§ 6601, subd. (b).)
If DMH’s evaluators concur that the inmate has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the DMH Director (Director) must forward a request for a petition for commitment to the county in which the inmate was last convicted. (§ 6601, subds. (d), (h).) If the county’s counsel concurs with the recommendation, he or she shall file a petition in the superior court. (§ 6601, subd. (i).)
Once the petition is filed, a hearing is held to determine whether there is probable cause to believe the alleged SVP is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the court determines probable cause is lacking, the petition is dismissed and the inmate must report to parole. If the court finds probable cause exists, a trial is ordered to determine whether the alleged SVP is an SVP and the alleged SVP is ordered to remain in custody in a secure facility until trial is completed. (§ 6602, subd. (a).)
At trial, the state has the burden of proving “beyond a reasonable doubt” that the alleged SVP is an SVP as defined in the act. (§ 6604.) The alleged SVP is entitled to “the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.” Both parties have the right to demand a jury trial (§ 6603, subd. (a)), and a finding that the alleged SVP is an SVP must be by unanimous verdict. (Id. at subd. (f).) If the trier of fact determines the alleged SVP is not an SVP, the alleged SVP must be released at the conclusion of his or her initial sentence or unconditionally released at the end of parole, whichever is applicable. If the trier of fact determines the alleged SVP is an SVP, he or she is committed for two years to the custody of the DMH for appropriate treatment and confinement in a secure facility designated by the Director. (Former § 6604.) At the end of two years, the SVP must be discharged unless a subsequent extended commitment is obtained from the court after a full hearing at which the SVP is entitled to the same rights afforded at the initial commitment hearing. (Former §§ 6604, 6605.)
Additionally, the SVPA provides a number of procedures for post-commitment review, which seek “to ensure that any commitment ordered under section 6604 does not continue in the event the SVP’s condition materially improves” so as to warrant conditional release or unconditional discharge of the committed person. (Hubbart, supra, 19 Cal.4th at p. 1147.) Annual mental examinations are required and the SVP may retain an expert, or if indigent, may request appointment of an expert to examine him or her. (§ 6605, subd. (a).)
The Director was required to provide the SVP with annual written notice of the right to petition the court for conditional release under section 6608 and the SVP was entitled to an annual “show cause hearing” unless he or she “affirmatively waive[d]” the right to a hearing. The SVP had a right to be present at that hearing and to the assistance of counsel. (Former § 6605, subd. (b); Stats. 1995, ch. 763, § 3; Hubbart, supra, 19 Cal.4th at p. 1147.) If the court determined there was probable cause to believe “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,” the court was required to set the matter for a full hearing (§ 6605, subd. (c)) at which the SVP was entitled to the same rights afforded at the initial commitment proceeding, including the burden and standard of proof. (Id. at subd. (d).) A verdict in favor of the SVP entitled him or her to unconditional release and discharge. A verdict against the SVP resulted in a two-year extended commitment, which ran from the date of the ruling. (§ 6605, subd. (d); Stats. 1995, ch. 763, § 3.)
The SVP also could gain release and discharge at any time, if the DMH had reason to believe the person no longer was an SVP. In such case, the DMH was required to seek judicial review of the commitment; and if the court agreed, it was required to order the person unconditionally released and discharged. (§ 6605, subd. (f).)
In addition, there are two means by which an SVP may be conditionally released from confinement. The first provides that if the Director determines the person’s “diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community,” DMH must forward a report and recommendation for conditional release to the responsible prosecuting agency, the attorney for the committed person, and the committing court. (§ 6607, subd. (a).) The court must then set a hearing in accordance with section 6608. (Id. at subd. (b).)
Second, under section 6608, the SVP may petition the court for conditional or unconditional release without the recommendation or concurrence of the Director. The person has the right to the assistance of counsel throughout the proceedings under this section. (§ 6608, subd. (a).) The court must review the petition and determine whether it contains facts upon which the court could “find that the condition of the committed person had so changed that a hearing was warranted.” (Ibid.) If the court determines the petition is frivolous using the standard for frivolous appeals stated in In re Marriage of Flaherty (1982) 31 Cal.3d 637 and People v. Collins (2003) 110 Cal.App.4th 340, 349-350), it must deny the petition without a hearing. In the absence of such a finding, the court must set the matter for a hearing and give notice of the hearing date to the local prosecution agency, the committed person’s retained or appointed attorney, and the Director at least 30 court days before the hearing. (§ 6608, subds. (a), (b).) However, the court may not set the matter for a hearing until the person has been under a commitment and care in facility designated by the Director for at least one year from the date of the commitment order. (§ 6608, subd. (c).)
The question to be determined at a section 6608 hearing is whether the person would be a danger to others in that it is likely he or she will reoffend due to his or her diagnosed mental disorder if under supervision and treatment in the community. (§ 6608, subd. (d).) The SVP bears the burden of proof by a preponderance of the evidence. (Id. at subd. (i).) If the court rules against the SVP’s request for unconditional release, the court may place the person on outpatient status in accordance with the procedures specified in Penal Code sections 1600 et seq. (§ 6608, subd. (g).) If the court denies the petition, the SVP must wait one year to file another such petition. (§ 6608, subd. (h).) If the court grants the petition for conditional release, it shall order the person placed with an appropriate forensic conditional release program for one year. At the end of that year, the court must hold another hearing to determine whether the person should be unconditionally released. (§ 6608, subd. (d).)
B. 2006 Amendments
On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128, as an urgency measure that went into effect immediately. (Stats. 2006, ch. 337, § 62.) Among other things, the bill amended sections 6604 and 6604.1 to provide that commitment under the SVPA is for an indefinite period. (Stats. 2006, ch. 337, §§ 55, 56.)
Then, at the November 7, 2006 General Election, the voters approved Proposition 83. As reflected in its title, “The Sexual Predator Punishment and Control Act,” the Act has a punishment component and a non-punishment control component, namely the changes it made to the SVPA. It expanded the definition of an SVP by reducing the number of victims of a sexually violent offense for which the defendant was convicted from two to one (§ 6600, subd. (a)), expanded the definition of a conviction to include a prior conviction that resulted in a commitment to the California Youth Authority (CYA) and a prior conviction that resulted in an indeterminate sentence (Id. at subds. (a)(2)(H), (I)), and increased the number of enumerated offenses qualifying as sexually violent offenses, including all of the enumerated offenses committed against a child under the age of 14 years. (§§ 6600, subd. (b), 6600.1.)
Proposition 83 also changed the term of commitment from a two-year commitment to an “indeterminate” term and deleted all references to petitions and hearings for extended commitment. (§§ 6604, 6604.1.)
Last, Proposition 83 amended section 6605. It specifies that the annual report by a qualified professional on the SVP’s mental condition must include consideration of whether he or she “currently meets the definition of [an SVP] 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).) A copy of the report must be served on the prosecuting agency involved in the initial commitment and on the SVP. (Ibid.)
The measure also amended section 6605 by eliminating the SVP’s right to notice of his or her right to file a petition under section 6608 and to an annual probable cause hearing. (See former § 6605, subd. (b); Stats. 1995, ch. 763, § 3.) The SVP may now have a probable cause hearing only with the authorization of the DMH after it has determined (1) the person’s condition has so changed that he no longer meets the definition of an SVP or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that will adequately protect the community. (§ 6605, subd. (b).) Proposition 83 left untouched the remaining procedural protections contained in sections 6605, 6607, and 6608.
We turn now to Mase’s specific claims.
III
Indeterminate Term
In its cross-appeal the People challenge the two-year term imposed by the trial court, arguing the SVPA, as amended by Senate Bill 1128 (SB 1128), and Proposition 83 mandates an indeterminate term. Mase counters that numerous state and federal constitutional and statutory provisions prevent the imposition of an indeterminate term.
“Indeterminate term” is the language of the statute. (See §§ 6604, 6604.1.) For purposes of the SVPA, an “indeterminate term” means commitment until a judicial determination has been made that the detainee no longer meets the definition of a sexually violent predator.
We shall conclude that the state and federal constitutional and statutory issues, as narrowly framed by this appeal, do not prevent the imposition of an indeterminate term in this case, and that pursuant to section 6604, which provides that “the person shall be committed for an indeterminate term”, the trial court had no discretion to impose any term of commitment other than an indeterminate term.
Mase was first committed as an SVP on April 5, 2000. His commitment was extended twice more, each time for two additional years, the last term to expire on April 5, 2006. In December 2005, the District Attorney filed the third petition to extend Mase’s SVP commitment for an additional two years from April 5, 2006, to April 5, 2008.
On September 20, 2006, the Governor signed into law SB 1128, extending the length of a commitment term from two years to an indeterminate term. The bill took effect immediately. (Stats. 2006, ch. 337, § 55.) On November 7, 2006, the voters passed Proposition 83. Like SB 1128, it made the SVP commitment term indeterminate.
On October 2, 2006, the District Attorney filed an amended petition, requesting that Mase’s commitment be extended for an indeterminate term pursuant to SB 1128. On November 15, 2006, a jury was impaneled to try Mase’s case, and on December 7, 2006, the jury returned a verdict that Mase met the criteria for commitment as an SVP. The court ordered Mase committed for treatment and confinement for a term of two years over the People’s objection that the commitment should be for an indeterminate term.
A. Statutory Authority to Extend Commitment
Mase argues that at the time the amended petition requesting an indeterminate commitment term was filed, there was no legislative authority to recommit him for an indeterminate period because SB 1128 did not convert previously imposed two-year commitments to indeterminate terms, and the new legislation deleted the statutory language authorizing extended commitments. This court has previously considered and rejected the claim Mase now makes.
In Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, the petitioners, who had petitions to extend their commitments pending when SB 1128 and Proposition 83 passed, argued the court had no jurisdiction to extend their commitments following the passage of Proposition 83 because the amended act deleted all provisions for proceedings to extend commitments. We held that the SVPA, as amended by SB 1128, and later by Proposition 83, contains an implied savings clause allowing the extension of an SVP’s commitment, and that such petitions to extend are for indefinite commitments. (Id. at pp. 1279, 1288.) Likewise, the Fourth Appellate District has rejected an argument that an SVP cannot be recommitted under the amended statute as contrary to the clear statutory intent. (People v. Shields (2007) 155 Cal.App.4th 559, 564.)
B. Retroactive Application
Mase contends that the imposition of an indeterminate term would be an unlawful retroactive application of the statute because his initial petition for commitment was filed prior to the passage of either SB 1128 or Proposition 83. The People contend that committing Mase for an indeterminate term would not be a retroactive application of the statute. We agree with the People.
“It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. [Citations.]” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.)
In Bourquez v. Superior Court, supra, this court recently held that application of the indefinite commitment provisions of Proposition 83 to pending petitions for extended commitment is a prospective application. (156 Cal.App.4th at p. 1288.) In so holding, we presumed the measure was intended to operate prospectively because Proposition 83 is entirely silent on the question of retroactivity. We then turned to the question whether an order committing the defendant for an indeterminate term was a retroactive application. (Ibid.)
The general rule holds that “‘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.]’ . . . [¶] In determining whether someone is an SVP, the last event necessary is the person's mental state at the time of the commitment. For pending petitions, the person's mental state will be determined after the passage of Proposition 83, at the time of commitment. . . . [and] a person cannot be so adjudged ‘unless he “currently” suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which “makes” him dangerous and “likely” to reoffend. [Citation.]’ [Citation.]” (Bourquez, supra, 156 Cal.App.4th at pp. 1288-1289.)
We therefore conclude, as we did in Bourquez, that application of the indefinite term of commitment to Mase is not a retroactive application because the “indeterminate term of commitment of Proposition 83 does not attach new legal consequences to conduct that was completed before the effective date of the law.” (Bourquez, supra, 156 Cal.App.4th at p. 1289.)
C. Estoppel
Nevertheless, Mase contends the People should be equitably estopped from applying Proposition 83 to his case. He argues that the application of SB 1128 or Proposition 83 to his case is based “on the People’s delay in bringing [the] prior petition to trial until after [his] prior commitment had expired on April 5, 2006.” We disagree.
The doctrine of equitable estoppel “may be invoked only when the party to be estopped is apprised of the facts and intends that his or her conduct will be acted upon, and the other party is ignorant of the true facts and relies upon the conduct to his or her detriment.” (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 794.)
Mase’s claim fails for two reasons. First, in February 2006 Mase agreed to the setting of his trial for November 2006. Second, Mase has failed to allege or demonstrate that the People made any representation or assurance that his SVP commitment would be for a two-year term, notwithstanding any amendment of the SVPA to provide otherwise. The District Attorney received no more notice and was in no better position than Mase to foretell that the SVPA would be amended by statute or initiative measure.
D. Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment
Mase contends an indeterminate commitment to the custody of DMH renders the SVPA punitive in nature and therefore violates the Ex Post Facto, Double Jeopardy, and Cruel and Unusual Punishment Clauses of the United States Constitution. The People argue that these claims have no merit because the SVPA is not a criminal statute and the SVPA component of Proposition 83 is not punitive in its purpose or intent.
We agree with the People and reject all three claims because a proceeding under the SVPA is not punitive in nature. Since that question is central to all three claims, we address it first.
In Hendricks, supra, 521 U.S. 346 [138 L.Ed.2d 501] the United States Supreme Court rejected ex post facto and double jeopardy challenges to a Kansas SVPA statutory scheme, finding it was civil rather than criminal in nature. The Kansas act provided that upon determination that a person met the criteria for commitment, the person would be confined “‘for control, care, and treatment until such time as the person’s mental abnormality or personality disorder [had] so changed that the person [was] safe to be at large.’” (Id. at pp. 352-353 [at p. 509].) Confined persons had three avenues for post-commitment review and unconditional release: (1) automatic annual judicial review to determine whether continued confinement was warranted, (2) judicial review upon a petition filed by the person with the authorization of the appropriate administrative authority if it decided the person’s condition had so changed that release was appropriate for release, and (3) judicial review upon a petition filed by the person at any time to determine whether the state could satisfy its burden under the initial commitment standard. (Id. at p. 353 [138 L.Ed.2d at p. 510.)
The Supreme Court stated that the classification of a proceeding as civil or criminal is one of statutory construction and the court will ordinarily defer to the Legislature’s stated intent. (Hendricks, supra, 521 U.S. at p. 361 [138 L.Ed.2d at p. 514].) The court considered the placement of the Kansas act, which was in the probate code, and found nothing in the statute to suggest the Legislature intended to create anything other than a commitment scheme to protect the public from harm. (Ibid.)
While a civil label is not always dispositive, the party challenging the stated intent must provide “‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the Legislature’s stated] intention’ . . . .” (Hendricks, supra, 521 U.S. at p. 361 [138 L.Ed.2d at p. 515].) That burden had not been met because the Kansas act did not implicate the primary criminal objectives of retribution or deterrence by affixing culpability or requiring scienter or criminal intent. Commitment was based on a mental abnormality or personality disorder that prevents the person from exercising control over his behavior, which makes it unlikely the person would be deterred by the threat of confinement, and the conditions of confinement were not punitive. (Id. at pp. 362-363 [at pp. 515-515].)
The court in Hendricks also rejected the claim that a potentially indefinite commitment is evidence of punitive intent. “Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged ‘safe to be at large,’ he is statutorily entitled to immediate release.” (521 U.S. at pp. 363-364 [138 L.Ed.2d at p. 516].) The court also noted that commitment under the Act was “only potentially indefinite” because the maximum amount of time an individual could be confined pursuant to a single judicial proceeding at which the state had the burden of proof was one year. (Id. at p. 364 [at p. 516].)
In Hubbart, supra, 19 Cal.4th 1138, the California Supreme Court followed Hendricks and using the same analysis, rejected an ex post facto challenge to the pre-Proposition 83 version of the SVPA. Finding no meaningful differences between the two schemes, the court concluded that “[v]iewed as a whole, the SVPA is also designed to ensure that the committed person does not ‘remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.’” (Id. at pp. 1175, 1177, quoting Hendricks, supra, 521 U.S. at p. 364 [138 L.Ed.2d at p. 516].) The court found the Legislature had “disavowed any ‘punitive purpose[],’ and declared its intent to establish ‘civil commitment’ proceedings in order to provide ‘treatment’ to mentally disordered individuals who cannot control sexually violent criminal behavior.” (19 Cal.4th at p. 1171.) The scheme was placed in the Welfare and Institutions Code, it does not affix culpability or seek retribution for criminal conduct, and confined individuals are placed in the custody of DMH for appropriate treatment in a secure facility designated by DMH. (Id. at pp. 1175-1176.)
The court rejected the argument that commitment is equivalent to a prison sentence because the procedures under section 6608 for conditional release and subsequent unconditional discharge are too onerous. “[N]othing in 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. . . . [T]he 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, supra, 19 Cal.4th at p. 1176.)
The court then examined the procedures for discharge and release, considering the two-year commitment period and the requirement of a new petition for extended commitment and a hearing where the state had the burden of proof beyond a reasonable doubt. The court also considered the SVP’s right to an annual mental examination and judicial review under section 6605, which as stated, included a probable cause hearing to determine whether continued confinement was warranted and, if so, a full hearing where the state again has the burden of proving beyond a reasonable doubt that the SVP remained mentally disordered and dangerous. These procedures were also supplemented by the procedures available under sections 6607 [report and recommendation for conditional release by the Director of Mental Health] and 6608 [petition for conditional release] that were not made available under the Kansas act upheld in Hendricks. (Hubbart, supra, 19 Cal.4th at p. 1177.)
Thus, an indeterminate term of confinement will not be found punitive where there are adequate procedural safeguards to ensure that a person who no longer meets the criteria for confinement will be released. We find the SVPA as amended by Proposition 83 continues to provide such safeguards.
Many of the procedures found adequate in Hubbart remain available. An SVP is still entitled to an annual mental examination and report and the person may retain or, upon request, if indigent, “the court may appoint” an expert to examine the person. (§ 6605, subd. (a)).
As Mase has not requested and been denied the assistance of an expert, we have no cause to consider whether an indigent confined SVP has a mandatory right to the appointment of an expert. (But see People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399 [holding that an SVP is not entitled to a court-appointed expert before the show cause hearing as a matter of right and that denial of an expert was not an abuse of discretion].)
If the Department determines that the person no longer is an SVP or that a conditional release to a less restrictive alternative will protect the community, the Director “shall authorize” the person to file a petition for discharge or conditional release. In that case section 6605, subdivision (b), entitles the person to a probable cause hearing and if probable cause is found, a full hearing with the same constitutional rights afforded at the initial commitment hearing. (§ 6605, subds. (c), (d).)
Section 6605, subdivision (a), provides in pertinent part: If the Department determines either that “(1) the person’s condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge.”
Contrary to Mase’s assertion, the DMH also has an obligation to request judicial review of the person’s commitment if at any time it has reason to believe he or she is no longer an SVP. (§ 6605, subd. (f).) In addition, the confined person may, on an annual basis, petition the court for conditional release or unconditional discharge under section 6608. Unless the court finds the petition is frivolous, it must set the matter for a hearing. (§ 6608, subds. (a), (b).) While the confined person has the burden of proof at this hearing, that alone does not transform the commitment into a punitive one. (Hubbart, supra, 19 Cal.4th at p. 1176.) He or she has the right to the assistance of counsel who may present the annual mental examination reports prepared by DMH evaluators or experts appointed by the court. (§ 6605, subd. (a).)
Thus, section 6608 affords the confined person the right to an annual judicial hearing if he or she presents the court with facts upon which it can find the person’s condition has so changed that a hearing is warranted. (§ 6608, subd. (a).) Due process requires no more. (See In re Swain (1949) 34 Cal.2d 300, 304 [summarily dismissing a petition for writ of habeas corpus based on vague conclusory allegations without factual support].)
Mase argues, however, that the Legislature’s stated intent in enacting the SVPA should be disregarded because Proposition 83 evinces a punitive purpose and makes changes that supersede its initial intent. According to Mase, these changes expanded the scope of the SVPA from a law “specifically tailored to a small group of troublesome recidivist sex offenders to a general sex crime statute that simply locks sex offenders away for longer periods of time than specified in penal statutes.” We disagree.
Mase is correct in his assertion that Proposition 83 expanded the definition of an SVP in several ways. As we previously stated, it reduced the number of victims against whom an SVP must be convicted of committing a sexually violent offense to “one or more” (§ 6600, subd. (a)(1)), expanded the definition of a conviction to include a conviction resulting in a commitment to the CYA or an indeterminate sentence (§ 6600, subd. (a)(2)(H), (I)), and expanded the definition of a sexually violent offense by increasing the specified predicate offenses. (§ 6600, subd. (b).)
Nevertheless, we find no punitive purpose in these amendments. Looking first to its stated intent, no such purpose appears from the text of Proposition 83, which is entitled “The Sexual Predator Punishment and Control Act: Jessica’s Law.” (Voter Information Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) As reflected in its title, the initiative contained punishment provisions and non-punitive control provisions, namely amendments to the SVPA. In passing the initiative, the People made several findings and declarations. Pertinent here is their finding that “[s]ex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon” (id. at § 2(b), p. 127) and “California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.” (Id. at § 2(k), p. 127.)
The voters stated their intent both to punish and control sexually violent offenders (Voter Information Pamp., supra, § 31, p. 138) in order to help Californians better protect themselves, their children, and their communities, and to reduce the costs of unwarranted judicial proceedings. (Id. § 2(f), p. 127.) To that end, the measure sought, first, to strengthen and improve the criminal laws that punish aggravated sexual assault, habitual sexual offenders and child molesters and, second, provide further means for the “commitment and control of sexually violent predators . . . .” (Id., § 2(h), p. 127.)
The expansion of the definition of an SVP is not inconsistent with the non-punitive control purpose of the initiative and does not transform the SVPA into a general sex crime statute. The definition of an SVP remains limited to persons who have committed a sexually violent offense and requires that the person have “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.” (§ 6600, subd. (a)(1).) Mase offers no evidence to support his assertion that this newly expanded definition extends beyond the targeted group of mentally disordered recidivist sex offenders. We therefore reject his claim that the changes made by Proposition 83 are punitive. (See fn. 5, supra.)
Having found that a commitment proceeding under the SVPA is not a criminal proceeding and an indefinite civil commitment under the Act is not punishment, we necessarily reject Mase’s constitutional claims under the Double Jeopardy and Ex Post Facto clauses (Hendricks, supra, 521 U.S. at pp. 369-371 [138 L.Ed.2d at pp. 519-521]), as well as the cruel and unusual punishment clause. (U.S. Const., 8th & 14th Amendments; Cal. Const., art. I, § 17; People v. Feagley (1975) 14 Cal.3d 338, 359.) Furthermore, as noted, application of Proposition 83 to Mase does not implicate ex post facto concerns for the additional reason that, as we found in Part III B, it has no retroactive effect. (Hendricks, supra, 521 U.S. at p. 371 [at p. 520]; Collins v. Youngblood (1990) 497 U.S. 37, 43 [111 L.Ed.2d 30, 39].)
E. Equal Protection
Mase argues the imposition of an indeterminate term would violate the equal protection clause of the Fourteenth Amendment because similarly situated persons committed under the MDOA and persons committed because they are found not guilty of a crime by reason of insanity are not similarly subject to an indeterminate term. Mase also claims it is a violation of equal protection to require him to bear the burden of proof.
We consider only the claim that the imposition of an indeterminate term violated equal protection, because the jury was instructed that the People, not Mase, had the burden of proof. Therefore, Mase lacks standing to challenge the statute on the ground it violated equal protection in allocating the burden of proof to him. (See, e.g., People v. Garcia (1999) 21 Cal.4th 1, 11-12 [defendant lacked standing to assert the equal protection claims of hypothetical felons who may be treated more harshly].)
Equal protection requires that persons similarly situated for purposes of the law challenged be similarly treated under the law. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) However, “[t]he 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.’ (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172 [167 Cal.Rptr. 854, 616 P.2d 836].)” (Hubbart, supra, 88 Cal.App.4th at p. 1217.)
The first question in an equal protection analysis is whether the groups being compared are similarly situated, because if they are not similarly situated, the challenge fails at the threshold. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) “The question is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” (Ibid.)
Mase’s equal protection argument fails at the outset because persons committed under the SVPA are not similarly situated to persons committed under the MDOA or persons found not guilty by reason of insanity for purposes of the length of their commitment. Two factors lead us to this determination--the likelihood of reoffense and the resistance to treatment in the SVP population.
The findings and declarations accompanying Proposition 83 state: “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, and they prey on the most innocent members of our society. More than two-thirds of the victims of rape and sexual assault are under the age of 18. Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon. . . . [¶] . . . . California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.” (Voter’s Information Pamp., Gen. Elec. (Nov. 2006) text of Prop. 83, p. 127.)
By contrast, the MDOA, which provides that a period of commitment or recommitment is for one year, is targeted to prisoners who have a treatable, severe mental disorder that was a cause of, or that aggravated the crime for which they were incarcerated. (Pen. Code, §§ 2960, 2972, subd. (c).) It provides a mechanism by which such persons may be committed for purposes of treatment if their mental disorders are not in remission or cannot be kept in remission at the time of their parole. (Pen. Code, § 2960.)
In considering the issue of treatment, which is closely related to length of commitment, this court has concluded that persons under the MDOA and SVPA are not similarly situated. (People v. Buffington, supra, 74 Cal.App.4th at pp. 1162-1163.) There, we stated:
“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. (Pen. Code, § 2962; Welf. & Inst. Code, § 6600.) 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. (Pen. Code, § 2962; Welf. & Inst. Code, § 6606, subd. (b).) Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (Ibid.)
Nor are persons found not guilty of a crime by reason of insanity (NGI) similarly situated to SVPs for purposes of the length of their commitment. The NGI scheme applies to persons who have committed a broad range of crimes, both violent and non-violent. By contrast, the SVPA is addressed to sexual predators who have committed violent sexual crimes, and who are likely to commit future sexual crimes because of their mental disorder.
The initial term of commitment of an NGI is related to the maximum term of imprisonment that could have been imposed if the person had been convicted. (Pen. Code, § 1026.5, subd. (a)(1).) An NGI may be held beyond the statutory maximum term of commitment if a jury finds the defendant meets the requirements for an extended commitment, i.e., represents a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. (Pen. Code, § 1026.5, subd. (b)(8).) The period of extended commitment is for two years. (Pen. Code, § 1026.5, subd. (b)(8).)
A finding of NGI means that “at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong.” (People v. Hernandez (2000) 22 Cal.4th 512, 520.) The very nature of a finding of insanity means that the defendant’s state of insanity could be temporary in nature. In fact, the NGI procedures take into account the possibility that a defendant may regain sanity before any commitment occurs. (Pen. Code, § 1026, subd. (b).) The SVPA, on the other hand, addresses those defendants who are the least likely to be cured of their mental disorders, and who may never be completely treated.
Accordingly, for purposes of the length of commitment, SVPs are not similarly situated to MDOs or NGIs, and Mase’s equal protection argument fails.
F. Due Process
Mase argues commitment to an indeterminate term fails to satisfy due process standards because the statutory scheme authorizes conditional release or unconditional discharge only upon the recommendation or concurrence of the DMH, depriving an SVP of mandatory, periodic judicial review, and because it places the burden of proof on an SVP to establish fitness for release.
The People contend the due process clause does not require that a civil commitment be finite and the assignment of the burden of proof to the SVP comports with principles of due process. We decline to address the issue of burden of proof because, as stated in section III D, Mase has no standing to raise this issue. However, as to Mase’s remaining argument, we agree with the People.
Consistent with substantive due process, the state may civilly commit a person who, as a result of mental illness, is unable to control his or her behavior and poses a danger to the public health and safety. (Hendricks, supra, 521 U.S. at p. 357 [138 L.Ed.2d at p. 512]; Kansas v. Crane (2002) 534 U.S. 407, 412-413 [151 L.Ed.2d 856, 862] [clarifying that there must be “a special and serious lack of ability to control behavior”].) The state may not confine a person who is no longer mentally ill and dangerous. (Foucha v. Louisiana (1992) 504 U.S. 71, 83 [118 L.Ed.2d 437, 450]; O’Conner v. Donaldson (1975) 422 U.S. 563, 575-576 [45 L.Ed.2d 396, 407].)
Therefore, as long as proper procedures and evidentiary standards are followed, a civil commitment for an indefinite period of time is not per se unconstitutional. (Jones v. United States (1983) 463 U.S. 354, 370 [77 L.Ed.2d 694, 709] (Jones) [a person found not guilty by reason of insanity may be confined until his or her sanity is restored or he or she is no longer dangerous]; Addington v. Texas (1979) 441 U.S. 418, 421, 425 [60 L.Ed.2d 323, 328, 330] [clear and convincing evidence is the standard of proof required in a civil commitment proceeding to confine an individual for an indefinite period]; see also Hendricks, supra, 521 U.S. at p. 357 [138 L.Ed.2d at p. 512].)
The statutory definition of an SVP, which requires proof of a current mental disorder that makes the person a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal conduct, satisfies substantive due process (see Hubbart, supra, 19 Cal.4th at pp. 1151-1167) and defendant does not contend otherwise.
Moreover, as we found in part III D of this section, the procedures afforded by the SVPA are adequate to ensure that defendant will be released when he no longer meets the definition of an SVP. Due process requires no more. (Jones, supra, 463 U.S. 354 [77 L.Ed.2d 694].)
Jones is dispositive. There the Supreme Court upheld a District of Columbia statute that provided for the indefinite commitment of a defendant acquitted of a criminal offense by reason of insanity. Release was authorized only at a judicial hearing within 50 days of commitment where the acquittee had the burden of proving by a preponderance of the evidence that he was no longer mentally ill or dangerous (463 U.S. at p. 357, fn. 3 [77 L.Ed.2d at p. 701]), or if that failed, upon certification by the hospital chief of services. In addition, the acquittee was entitled to a judicial hearing every six months where he again had the burden of proving he was no longer insane or dangerous. (Id. at p. 358 [77 L.Ed.2d at p. 701].) The statutory scheme also provided an independent procedure for civil commitment, in which the person to be committed had the right to a jury trial, and the government had the burden of proof by clear and convincing evidence. Once committed, the person could gain release at any time upon certification of recovery by the hospital chief of service, or the person could request a judicial hearing after the first 90 days, and thereafter at six-month intervals, by proving by a preponderance of the evidence that he was no longer mentally ill or dangerous. (Id. at pp. 359-369 [at pp. 702-708].)
Under the District of Columbia statute, to successfully raise an insanity defense, the defendant had to “‘affirmatively establish[his insanity] by a preponderance of the evidence.’” (Jones, supra, 463 U.S. at p. 356 [77 L.Ed.2d at p. 700].)
The petitioner in Jones contended his trial was not a constitutionally adequate hearing to justify an indefinite civil commitment. Consequently, according to the petitioner, he must be released after one year, the maximum period he could have served had he been convicted, or recommitted pursuant to the independent civil-commitment standards and procedures. (Jones, supra, 463 U.S. at p. 360 [77 L.Ed.2d at p. 703].) The high court rejected this claim, concluding that an insanity acquittal “is a sufficient foundation for commitment of an . . . acquittee for the purposes of treatment and the protection of society” because a finding beyond a reasonable doubt that the person committed a criminal act indicates dangerousness (Id. at p. 366 [at p. 706]) and an insanity acquittal supports an inference of continuing mental illness. (Ibid.)
The court also rejected the petitioner’s claim that an indefinite commitment is unconstitutional when proof of insanity is based upon a preponderance of the evidence standard of proof. (Jones, supra, 463 U.S. at p. 367 [77 L.Ed.2d at p. 707].) The court found the differences between civil-commitment candidates and insanity acquittees justify differing standards of proof. Civil-commitment candidates require proof by clear and convincing evidence to reduce the risk that “members of the public could be confined on the basis of ‘some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.” (Ibid.) That risk of error is diminished where an insanity acquittee advances an insanity defense and proves his own mental illness. More importantly, the proof the acquittee committeda criminal act as a result of mental illness eliminates the risk he is being committed for mere “‘idiosyncratic behavior.’” (Id. at pp. 367-368 [at p. 707].)
Last, the court held that the government could properly confine the acquittee in a mental hospital for a period longer than his sentence would have been because the purpose of the commitment was not to punish but to treat the acquittee and protect both the public and the acquittee. (Jones v. United States, supra, 463 U.S. at p. 368 [77 L.Ed.2d at p. 708].) The court reasoned that “because it is impossible to predict how long it will take for any given individual to recover -- or indeed whether he ever will recover -- Congress has chosen . . . to leave the length of commitment indeterminate, subject to periodic review of the patient’s suitability for release.” (Ibid.)
Like an NGI acquittal, where there is a finding beyond a reasonable doubt that the acquittee committed a criminal act, the initial commitment of an SVP follows immediately upon his or her release from prison for a felony conviction. (§ 6601, subd. (a)(1).) The SVPA provides the alleged SVP with a separate commitment hearing where the People have the burden of proving beyond a reasonable doubt that the person meets civil commitment criteria. (§ 6604.)
And, just as an NGI acquittal supports an inference of continuing mental illness and dangerousness (Jones, supra, 463 U.S. at pp. 364, 366 [77 L.Ed.2d at pp. 705-706]), a true finding the person is an SVP (§ 6600, subd. (a)(1); Hubbart, supra, 19 Cal.4th at p. 1162) supports the same inference. In addition, as we found in part III C, the post-commitment review procedures are adequate to ensure that any commitment ordered under section 6604 does not continue if the SVP’s condition materially improves to the point where he or she no longer meets the criteria for commitment. Indeed, these procedures provide greater protections than those afforded by the scheme upheld in Jones, which were limited to judicial review upon administrative certification or judicial review where the acquittee had the burden of proof. By contrast, the SVPA requires a separate initial commitment hearing where the People have the burden of proof (§ 6604) and also includes procedures for conditional release to a less restrictive alternative. (§§ 6607, subd. (a), 6608, subd. (a).)
Nevertheless, Mase claims the hearing under section 6608 is constitutionally inadequate because the court can summarily dismiss the petition, and if the hearing is granted he has no right to the assistance of an expert. We are not persuaded.
First, while it is true Mase no longer is entitled to an annual probable cause hearing as a matter of right, he is entitled to annual judicial review unless the court finds his petition is frivolous (§ 6608, subd. (a)[the petition must allege facts sufficient to find the committed person has so changed that a hearing is warranted]), which we find no different than the summary denial of a petition for writ of habeas corpus based on vague conclusory allegations without factual support. (See In re Swain, supra, 34 Cal.2d at p. 304.) As to the assistance of an expert, we read section 6608 in harmony with the entire act. (People v. Cottle (2006) 39 Cal.4th 246, 254 [“‘We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole’”].) Although section 6608 does not provide for the assistance of an expert, as we have stated, Mase is entitled to an annual examination of his mental condition under section 6605 and the resulting report must address the matters at issue in a section 6608 hearing. As part of that right, he may also retain, or if he is indigent, the court may appoint, a qualified expert to examine him and who has access to all of Mase’s records. (§ 6605, subd. (a).)
For all of these reasons, we reject Mase’s due process claim.
G. Right to Petition
Mase contends the imposition of an indeterminate term of commitment violates his First Amendment right to petition because the SVPA does not provide for meaningful access to the courts. We conclude Mase has no standing to raise this argument because he has suffered no denial of access to the courts.
A person committed to an indeterminate term is entitled by statute to an examination of his or her mental condition at least once every year, for which purpose an indigent SVP may retain a qualified expert to examine him or her. (§ 6605, subd. (a).) The SVPA provides two avenues for an SVP to obtain a hearing for the purpose of being conditionally released or discharged. One of these is directly tied to the annual mental examination.
First, if as a result of the annual examination the Department makes a determination that the SVP is no longer an SVP or that a less restrictive alternative would be advisable, the Director must authorize a petition to the court for conditional release or an unconditional discharge. (§ 6605, subd. (b).) The court must then order a show cause hearing for consideration of the petition. (§ 6605, subd. (b).) The show cause hearing may result in a hearing for which the person has the right to all constitutional protections that were afforded at the initial commitment proceeding and for which the state has the burden of proof beyond a reasonable doubt. (§ 6605, subd. (d).)
Second, an SVP may petition annually and without the Department’s recommendation for a discharge or conditional release. (§ 6608, subds. (a)&(h).) The court may deny such petition without a hearing if it finds the petition is based on frivolous grounds. (§ 6608, subd. (a).) The SVP is entitled to assistance of counsel to petition the court. (S 6608, subd. (a).) If the petition is not denied by the court on the ground it is frivolous, the court holds a hearing to determine if the person would be a danger to others if placed in a conditional release program. (§ 6608, subd. (d).) If the SVP is placed in a conditional release program, the court holds another hearing after the person has completed at least one year in the program to determine if the person may be unconditionally released. (§ 6608, subd. (d).)
Mase contends this scheme violates his First Amendment right to petition in three respects. First, he argues a detainee may file a petition for release only with the concurrence of the Director. Second, he argues the provisions of section 6608 that allow a petition without the concurrence of the Department are not meaningful because there is no provision for the appointment of a medical expert. Third, he argues the court’s ability to summarily deny the petition if it concludes the petition is frivolous, combined with the burden of proof being on the detainee, result in a denial of the opportunity of a hearing on the merits.
Whether the challenge is to the state or the federal Constitution, Mase must demonstrate his standing to sue. (Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 94; County Court of Ulster County v. Allen (1979) 442 U.S. 140, 154-155 [60 L.Ed.2d 777, 790].) This means he must show there has been an actual injury to his legally protected rights. (Tennison v. Paulus (9th Cir. 1998) 144 F.3d 1285, 1287; Andal v. City of Stockton, supra, at p. 94 [party attacking constitutionality of statute must show some injury, actual or threatened].) The doctrine of standing addresses the question whether “a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy . . . .” (Sierra Club v. Morton (1972) 405 U.S. 727, 731-732 [31 L.Ed.2d 636, 641].)
Thus, a party may not bring a facial challenge against legislation unless that party’s constitutional rights have been violated, or unless the party can demonstrate that the legislation is invalid under any set of circumstances. (People v. Hsu (2000) 82 Cal.App.4th 976, 982; U.S. v. Salerno (1987) 481 U.S. 739, 745 [95 L.Ed.2d 697, 707].) “[A] plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” (Warth v. Seldin (1975) 422 U.S. 490, 499 [45 L.Ed.2d 343, 355].) The reasons for this rule are to prevent unnecessary pronouncements and premature statutory interpretations “‘in areas where their constitutional application might be cloudy,’” and to assure that issues before the court “will be concrete and sharply presented.” (Secretary of Maryland v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947, 955 [81 L.Ed.2d 786, 794-795].)
Mase’s First Amendment challenge is a facial challenge to the legislation, because he has not yet been denied a hearing to determine whether he meets the definition of an SVP under the new statutory scheme.
The limitation that a party must assert his own legal rights is relaxed when a party brings a facial challenge implicating the free speech aspect of the First Amendment. (Tennison v. Paulus, supra, 144 F.3d at p. 1287; People v. Hsu, supra, 82 Cal.App.4th at p. 982.) This is because “when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged.” (Secretary of Maryland v. Joseph H. Munson Co., Inc., supra, 467 U.S. at p. 956 [81 L.Ed.2d at p. 795].)
Although Mase raises a First Amendment challenge to the statute, the basis of the challenge is the right to petition the government for redress of grievances, not the right of free speech. The relaxed standing rules for First Amendment facial challenges have been applied in the free speech area, the rationale being that the relaxed rules are necessary to prevent a chilling of free speech. We are not aware of any case that applied such relaxed standing requirements in right to petition cases, and Mase has cited no such case authority. We conclude Mase has no standing to challenge the SVPA on First Amendment grounds.
H. Single Subject Rule
Finally, Mase contends that to the extent Proposition 83 governs his commitment, it violates the single subject rule governing ballot initiatives, and that the only proper commitment term was a two-year commitment. The California Constitution provides: “[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” (Cal. Const., art. II, § 8, subd. (d).) Mase contends Proposition 83 violated the single subject rule because it “combined too many disparate topics without a common purpose under a broad and amorphous theme of dealing with sex offenders. In this regard, the proposition included provisions modifying civil, criminal, and regulatory matters.”
We decline to resolve this question. The only portion of Proposition 83 currently applicable to Mase is the indeterminate term. However, even without Proposition 83, SB 1128, signed into law as an urgency measure on September 20, 2006, amended the SVPA to increase the length of commitment from two years to an indeterminate term. (Stats. 2006, ch. 337, § 55.)
(Legis. Counsel’s Dig., Sen. Bill No. 1128 (2006 Reg. Sess.)
I. Jury Instructions
The People ask us to rule that the trial court erred when it instructed the jury that in order to find Mase had a current diagnosed mental disorder within the meaning of the SVPA, the jury had to find that Mase currently suffered from paraphilia NOS. The People argue the jury should have been free to consider all of the possible diagnosed mental disorders from which Mase suffered in determining whether those disorders satisfied the criteria for commitment under the SVPA. We disagree.
Only an aggrieved party may appeal, and a party may not appeal from a judgment in its favor. (Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170.) While there are exceptions to this rule, none of the exceptions is applicable here.
Notwithstanding the trial court’s instruction, the jury found that Mase was an SVP, which finding necessarily encompassed a finding that he suffered from a current diagnosed mental disorder.
The People claim the court’s instruction, to which it objected, is appealable pursuant to Code of Civil Procedure section 906, and/or Penal Code section 1252. We do not resolve the question whether the instruction was correct because the issue does not affect the substantial rights of the People.
Code of Civil Procedure section 906 provides in part that this court may review an intermediate decision “which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party . . . .” However, the People were not the aggrieved party in this action because the judgment was in their favor and the jury instruction did not affect the outcome of the case.
Penal Code section 1252, also cited by the People as a ground for appealability, provides in part that “[o]n an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General.” Nevertheless, we will not rule on the correctness of the jury instruction because to do so would be to render an advisory opinion. “Though the command of section 1252 is clear, under the state Constitution we have no power to give gratuitous advice (Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120, 145 Cal.Rptr. 674, 577 P.2d 1014), a prohibition that trumps the statute.” (People v. Roberts (1992) 2 Cal.4th 271, 337, fn. 18.)
DISPOSITION
The judgment of recommitment is modified to provide that William Mase be committed, pursuant to Welfare and Institutions Code Section 6604, to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility for an indeterminate term. In all other respects the judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.
Mase would have us hold not merely that an SVP has no right to represent himself, but also that he has no right to waive his statutory right to counsel. We find no support for the contention that the statutory right to counsel is non-waivable where a determination of competence is made.