Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. FP003544A Kenneth C. Twisselman II, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
CORNELL, J.
This appeal is from an order civilly committing appellant Gregorio Alonzo Raya to the State Department of Mental Health (Department) for an indeterminate term under what is commonly known as the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.). Raya challenges the validity of his commitment on a number of constitutional grounds. Based on the California Supreme Court’s recent ruling in People v. McKee (2010) 47 Cal.4th 1172 (McKee), we affirm the trial court’s order in part and reverse it in part and remand the matter to the trial court. On remand, we will direct the trial court to suspend further proceedings in this case pending finality of the proceedings in McKee.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
In 2002, at the age of 25, Raya was convicted of sexually violent offenses against two young girls, ages 7 and 8. On July 23, 2007, the Kern County District Attorney’s Office filed a petition in superior court requesting that Raya be committed civilly as a sexually violent predator (SVP) under section 6600 et seq. In February 2009, a jury trial was held and the trial court declared a mistrial when the jury could not reach a verdict.
On April 14, 2009, a second trial began. Dr. Nancy E. Webber, a clinical psychologist, opined that Raya suffered from the mental disorder of pedophilia, with volitional impairment. Raya had a history of placing himself in locations where there was a risk of reoffense and of acting on the spur of the moment. Raya was highly likely to reoffend and to engage in sexually violent predatory behavior without in-custody treatment. Raya could not be treated safely in the community, and he had refused treatment in the community when it was previously offered.
A second clinical psychologist, Dr. Dana E. Putnam, testified that her conclusions corroborated those of Webber’s. Putnam also testified in detail concerning the sex offender treatment Raya had received while housed at the California Youth Authority. Despite the treatment, Raya had an increasingly graphic sexual pedophilic fantasy life.
Dr. Mary Jane Adams, a clinical psychologist, testified for the defense. She opined that Raya was not a pedophile. She also criticized the methods and conclusions of the experts that testified for the prosecution.
Raya testified and admitted his criminal history and his continuing sexual fantasies involving children. His fantasies continued right up to the time of the hearing and included one fantasy of tying up naked children.
On April 21, 2009, the jury returned a verdict finding Raya to be an SVP. On April 24, 2009, the trial court ordered Raya committed to the Department for an indefinite period of confinement and treatment.
DISCUSSION
Raya contends the SVPA violates the due process, ex post facto, double jeopardy, cruel and unusual punishment, and equal protection rights provided by the United States and California Constitutions. Subsequent to the filing of his opening brief, the California Supreme Court issued its decision in McKee, supra, 47 Cal.4th 1172, concluding that the SVPA, even as amended, is civil in nature and does not amount to punishment and therefore does not implicate ex post facto, double jeopardy, or cruel and unusual prohibitions; nor does it violate due process. (McKee, at pp. 1188-1195.) Raya’s equal protection challenge, however, is meritorious. (Id. at pp. 1196-1208.)
I. SVPA
In 1995 the Legislature enacted the SVPA, which is codified in section 6600 et seq. (Stats. 1995, ch. 763, § 3, p. 5922.) The SVPA provides for the involuntary civil commitment of certain offenders. An offender is eligible for commitment as an SVP if he or she has been convicted of sexually violent offenses (as defined in section 6600, subd. (a)(2)) against one or more victims, and he or she 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 behavior. (Id., subd. (a)(1).) A “diagnosed mental disorder” is defined as 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., subd. (c).)
In 2006, the SVPA was amended to provide for an indeterminate term of commitment instead of a determinate term of commitment. (§ 6604, as amended by Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) § 27, eff. Nov. 8, 2006.) Raya’s contentions on appeal focus on the 2006 change to the SVPA that provides for an indeterminate term of commitment. It is the provision for an indeterminate term, he contends, that violates his federal constitutional rights to due process and equal protection and the prohibitions against ex post facto laws, cruel and unusual punishment, and double jeopardy.
II. Double Jeopardy, Ex Post Facto, and Cruel and Unusual Punishment
After McKee, the law is settled that an indeterminate SVPA commitment, even after the 2006 amendments, is a civil matter imposing no punishment. (See McKee, supra, 47 Cal.4th at pp. 1193-1195 [the 2006 amendments do not render the statutory scheme punitive and “accordingly do not violate the ex post facto clause”]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [the ex post facto clause prohibits only those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts”]; People v. Vasquez (2001) 25 Cal.4th 1225, 1231 [the SVPA is “protective rather than punitive in its intent”]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179 [the SVPA neither imposes punishment nor otherwise implicates ex post facto concerns].)
The Eighth Amendment’s prohibition on cruel and unusual punishment prohibits those convicted of crimes from being physically punished by barbarous methods. (Estelle v. Gamble (1976) 429 U.S. 97, 102-103.) While the SVPA results in a loss of freedom, Raya is not a prisoner and the SVPA is not punitive in nature. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 (Chambless) [since SVPA is not punitive and does not impose liability or punishment for criminal conduct, cruel and unusual punishment claim fails].) Therefore, the Eighth Amendment’s prohibition on cruel and unusual punishment is inapplicable. (See McKee, supra, 47 Cal.4th at pp. 1194-1195.)
Likewise, a civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks (1997) 521 U.S. 346, 369 (Hendricks).) As discussed ante, the SVPA, as amended by Proposition 83, remains civil, not punitive, in nature. (McKee, supra, 47 Cal.4th at pp. 1194-1195.) Because Raya’s commitment is civil in nature, it does not run afoul of the double jeopardy clause. (Chambless, supra, 74 Cal.App.4th at p. 776, fn. 2 [double jeopardy claim fails because SVPA does not impose punishment for criminal conduct].)
So Raya’s double jeopardy, ex post facto, and cruel and/or unusual punishment arguments are meritless.
III. Due Process
Likewise, the law is settled that an indeterminate SVPA commitment, even after the 2006 amendments, does not violate due process. (McKee, supra, 47 Cal.4th at pp. 1188-1193; see also Hendricks, supra, 521 U.S. at p. 357 [involuntary civil confinement of a limited subclass of dangerous persons with proper procedures and evidentiary standards is not “contrary to our understanding of ordered liberty”]; Foucha v. Louisiana (1992) 504 U.S. 71, 77 [due process allows holding a civil committee “as long as he is both mentally ill and dangerous, but no longer”]; Jones v. United States (1983) 463 U.S. 354, 366-368 [imposing the burden of proof by a preponderance of the evidence that a committee with an indeterminate commitment is not guilty by reason of insanity “comports with due process”].)
A commitment under California’s SVPA is “only potentially indefinite” due to the requirement of an annual review. (Hendricks, supra, 521 U.S. at p. 364.) Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (Id., subd. (a).) The results are to be filed with the trial court and served on the committed person. (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for this type of discharge or conditional release is to be filed. (Id., subd. (b).) At the hearing on this petition, the committed individual has the right to appointed counsel, the right to a jury trial, and the right to an appointed expert. (Id., subd. (d).) In addition, the state has the burden of proving beyond a reasonable doubt that the SVP is to remain committed. (Ibid.)
If at any time the Department has reason to believe the person committed is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).) If the Department does not certify that the person should be discharged or conditionally released, the committed person can file a petition seeking conditional release or discharge. (§ 6608, subd. (a).) Section 6608, subdivision (i) provides that in any hearing on a petition filed under this section, the petitioner has the burden of proof by a preponderance of the evidence.
The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California’s scheme (§ 6608) assures that an individual remains committed only as long as he or she meets the statutory definition of an SVP and that constitutional requirements are satisfied. (See Hendricks, supra, 521 U.S. at pp. 364-365.)
Raya’s challenge to his commitment on due process grounds is without merit. (McKee, supra, 47 Cal.4th at p. 1193.)
IV. Equal Protection
Raya’s equal protection challenge, on the other hand, may be meritorious. (McKee, supra, 47 Cal.4th at pp. 1196-1208.) Raya contends that he has been denied equal protection because SVP’s receive treatment disparate from other similarly situated persons, specifically, mentally disordered offenders (MDO) subject to commitment under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity (NGI). (Id., § 1026 et seq.)
In McKee, the California Supreme Court held that SVP’s are similarly situated to other civilly committed persons, including MDO’s and NGI’s. Therefore, absent a showing of a compelling state interest in treating SVP’s significantly less favorably than MDO’s and NGI’s, California’s SVPA may violate the equal protection clause of the United States Constitution. (McKee, supra, 47 Cal.4th at pp. 1203, 1207.) The McKee court remanded the case to the trial court to determine whether the People could establish a compelling interest justifying its disparate treatment of SVP’s and whether such treatment is necessary to further its interest. (Id. at pp. 1207, 1210.)
The McKee court stated that “the government has not yet shown that the special treatment of SVP’s is validly based on the degree of danger reasonably perceived as to that group, nor whether it arises from any medical or scientific evidence. On remand, the government will have an opportunity to justify Proposition 83’s indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of California’s electorate.” (McKee, supra, 47 Cal.4th at p. 1210, italics added.)
In McKee, the California Supreme Court remanded the matter to the trial court to determine whether the People could demonstrate “the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (McKee, supra, 47 Cal.4th at p. 1208.) McKee does not explain whether the justification will be a one-time finding, forever applicable to all SVP’s committed under the statutory scheme, or whether in every case there must be justification for treating a particular SVP differently than MDO’s and NGI’s. The opinion appears to contemplate a categorical justification with its citation in footnote 9 to Department of Justice studies and the like. (Id. at p. 1206, fn. 9.) It also suggests in footnote 10, however, that there may be classes of SVP’s that pose a greater risk to particularly vulnerable victims, such as children. (Id. at p. 1208, fn. 10.)
In any event, until we receive further direction from the California Supreme Court, we remand this matter to the trial court to determine whether sufficient justification has been shown for treating SVP’s differently than MDO’s and NGI’s, but will suspend further proceedings pending finality of the proceedings on remand in McKee.
DISPOSITION
The order for commitment finding Raya to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the Department is affirmed, except as to the commitment for an indeterminate term, which is reversed. The matter is remanded to the trial court for reconsideration of whether an indefinite commitment violates equal protection. The trial court, however, shall suspend further proceedings pending finality of the proceedings on remand in McKee. (McKee, supra, 47 Cal.4th at pp. 1208-1210.) “Finality of the proceedings” in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
WE CONCUR: WISEMAN, Acting P.J., KANE, J.