Opinion
A138128
2014-02-24
The PEOPLE, Plaintiff and Respondent, v. ROSALINDA C., Defendant and Appellant.
See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 92 et seq. Superior Court of Alameda County, No. RM08378235, Carlos G. Ynostroza, Judge. (Super. Ct. No. RM08378235)
See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 92 et seq. Superior Court of Alameda County, No. RM08378235, Carlos G. Ynostroza, Judge. (Super. Ct. No. RM08378235) Paul Bernstein, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Jeffrey M. Laurence and Violet M. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Dondero, J.
Rosalinda C.
appeals from an order committing her as a mentally retarded person who is a danger to herself and others to California Psychiatric Transitions, a locked facility, for one year. ( Welf. & Inst. Code, § 6500.)
We grant Rosalinda's request to omit her surname in order to protect the confidentiality of her mental history. (Welf. & Inst. Code, § 5328.) To further assure confidentiality, we also omit her mother's surname.
Pursuant to legislation passed in 2012, if Rosalinda's first commitment hearing had been held on or after July 1, 2012, she could not have been committed for more than six months initially, and then only if the court found her to be dangerous and in “acute crisis.” ( §§ 6500, subd. (c)(2), 4418.7, subd. (d)(1).) Rosalinda argues that the disparate treatment of mentally retarded committees based solely on the date of their first commitment violates the equal protection clause. Rosalinda also challenges the evidentiary basis of the court's findings that her mental retardation caused her to have serious difficulty controlling her dangerous behavior; and that a locked facility was the least restrictive appropriate placement. We affirm.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
STATEMENT OF THE CASE
Rosalinda was first admitted to California Psychiatric Transitions (CPT) under a section 6500 commitment in 2008. She was recommitted pursuant to section 6500 for one year from November 15, 2011 to November 15, 2012. On November 13, 2012, the Alameda County District Attorney's Office filed the current petition alleging that Rosalinda C. is mentally retarded and a danger to herself and others, and requesting renewal of her involuntary commitment to the State Department of Developmental Services for residential placement for an additional year. (Welf. & Inst. Code, § 6500.) Rosalinda was ordered to be held at CPT, her existing placement, until the hearing on the petition.
Rosalinda opposed the extension of her commitment. The court heard and denied Rosalinda's motion to dismiss the petition on equal protection grounds. On February 28, 2013, following a hearing at which four witnesses testified, the court granted the petition and committed Rosalinda to CPT for suitable treatment and rehabilitation for one year, until November 15, 2013.
STATEMENT OF FACTS
Dr. Scott Turpin, M.D., was Rosalinda's attending psychiatrist at CPT from November 2011 through September 2012. In preparation for his testimony, Dr. Turpin reviewed Rosalinda's CPT medical record.
Rosalinda was in the main unit at CPT from March 2011 to September 2012, when she was moved into the Disruptive Behavior Unit because of her assaultive behavior and some other problems in the main unit. A different psychiatrist was in charge of the Disruptive Behavior Unit and he made the final decision, in collaboration with the attending psychiatrist and others, whether a patient was ready to be moved out of the Disruptive Behavior Unit. So far, Rosalinda had not gained sufficient control of her assaultive behavior to allow for her transfer back to the main unit.
Based on medical record review, consultation with treatment team members, and observation, in November 2011 Dr. Turpin diagnosed Rosalinda with schizophrenia, paranoid type. Schizophrenia is characterized by “positive” symptoms which respond to treatment, such as auditory and sometimes visual hallucinations, fixed false beliefs, and significant disorganization of speech and thought. It is also characterized by “negative” symptoms which do not respond to treatment, such as lack of sociability, lack of motivation, and flat emotional expression. When Dr. Turpin first began interacting with Rosalinda, he did not observe symptoms of paranoid schizophrenia. His assessment was that Rosalinda had been on antipsychotic treatment for some time and at least the positive symptoms of her disease were under control.
Based on review of her records, Dr. Turpin also diagnosed her with mild mental retardation, of which she has a long-standing history. “Her presentation appeared consistent with that, even simple mental status questions were consistent with low IQ.” In general, mentally retarded people can exhibit immature coping skills, poor impulse control, and difficulty managing their behavior, and in November 2011 when Dr. Turpin first came in contact with her, Rosalinda exhibited all of those traits.
By September and October of 2012, Dr. Turpin was getting frequent calls from staff who reported that Rosalinda had hit other patients. She was unable to explain why she was hitting peers. Occasionally, staff reported that she hit them. This was a change in Rosalinda's prior behavior and it seemed to be getting worse. Most recently, Rosalinda reported that she struck two people the week before the court hearing, and staff notes corroborated a recent incident of pushing and an attempt to strike another patient on February 20, 2013. No one had suffered significant injury as a result of being hit by Rosalinda.
In Dr. Turpin's opinion, Rosalinda currently has difficulty managing her assaultive behavior because of her developmental delay, not her schizophrenia. His opinion was based on the fact that in the past, Rosalinda had said she “struck because she heard voices telling her to do that,” but not recently. In fact, she currently denied auditory hallucinations or delusions. Dr. Turpin had not observed any symptoms of schizophrenia at the time her assaultive behavior began to escalate. At times, Dr. Turpin considered whether Rosalinda's failure to respond to staff or to him and her tendency to “just sort of [stare]” was a symptom of schizophrenia called thought blocking, but he opined it was also possible “she could be choosing just not to respond.”
In addition to assaultive behavior, Rosalinda had recently begun to exhibit other symptoms indicating poor impulse control, such as urinating on herself on purpose in order to achieve other ends, like avoiding group therapy, and ensuring she was the last in line for medication or meals. Rosalinda was digging in the trash to look for food, and she sometimes ate out of the trash. In 2008, when she came into CPT, she weighed over 300 pounds. Since then, she has been on a restricted-calorie diet and has lost significant weight. Although the trash-digging behavior might be motivated by hunger, Dr. Turpin had tried other ways to help hungry patients, such as encouraging them to drink water, or giving them extra portions of vegetables.
Also, Rosalinda had been throwing tantrums which involved yelling and tossing chairs. The increase in the frequency of this conduct caused Rosalinda to be removed from the main unit and placed in the Disruptive Behavior Unit. At the time of trial, this behavior had begun to lessen.
At the time of trial, Rosalinda was taking several psychiatric medications regularly: 50 milligrams of clozapine twice a day and 400 milligrams at night; 60 milligrams of a generic Prozac (fluoxetine) in the morning; and one-half milligram of generic Ativan (lorazepam), an anti-anxiety medication, twice a day. She also received additional lorazepam and Thorazine, an older antipsychotic drug, on an as-needed basis. Dr. Turpin increased Rosalinda's clozapine dosage in February 2012 in the hope that the drug's anti-impulsivity and anti-aggression effects would ease Rosalinda's difficulty with impulse control during the day, even though her impulsivity and aggression were the result of her mental retardation. Rosalinda's aggressive behavior did seem to improve for a while before things got worse again in June 2012. On July 3, 2012, Rosalinda reported she had “not heard voices in about a week,” and Dr. Turpin “didn't see anything that was suspicious of auditory hallucinations at that point.”
Rosalinda also engaged in self-injuring behavior. In late August or early September 2012, Rosalinda sustained a minor injury to her thumb, which became infected. By the time Rosalinda brought her injured thumb to anyone's attention, it had become so infected she had to be hospitalized for several weeks; her thumb was almost amputated. In the Disruptive Behavior Unit, which had only 12 patients, there was a better staff-to-patient ratio than in the main unit, generating better supervision.
In Dr. Turpin's opinion, Rosalinda was a danger to herself because she had a history of making suicidal threats. She often threatened to kill herself in an attempt to manipulate caregivers or her placement situation. However, on February 14, 2013 she was found with a six-foot strip of cloth, a few inches wide, that appeared to have been taken from a bedsheet. She said it was an accident—“the sheet had just ripped”—but Dr. Turpin found the incident worrisome.
It was also his opinion that Rosalinda was a danger to others “because of the repetitive hitting at other people, pushing people.” He further opined that Rosalinda had trouble controlling her dangerous behavior because of her mental retardation. He arrived at this opinion because he had “not observed symptoms of schizophrenia, the auditory delusion or disorganized thinking, so it seems more consistent with poor impulse control associated with her mental retardation.”
Jeffrey Nagafuji is a case management supervisor at the Regional Center of the East Bay (the Regional Center). Rosalinda's case was transferred to Nagafuji's team in 2008, shortly after she was placed at CPT. Before placement at CPT, she had been in a number of care home facilities on a short-term basis, and before that, in 2007, she lived with her family. Rosalinda's mother requested Rosalinda be placed in a group home.
The Regional Center tries to place a client in the least restrictive placement permitted by the client's behavioral needs and disorders. In Rosalinda's case, it became apparent that such placements prior to her move to CPT were not satisfying her mental health and behavioral needs; a higher level of care was indicated.
The appropriateness of Rosalinda's placement is reviewed on a quarterly basis. The last review involving Nagafuji occurred in August 2012. At that time, CPT appeared to be the most appropriate placement for Rosalinda, given her mental health and behavioral needs. CPT provides close mental health monitoring and the provision of psychiatric services on site. These services were not available at a less restrictive placement. Also, unlocked facilities might not be able to adequately address some aggressive behaviors. As of the time of trial, there was no board-and-care facility the Regional Center considered able to meet all of Rosalinda's diverse needs as well as CPT did.
As of August 2012, returning Rosalinda to her mother's home was not a realistic option, given Rosalinda's continued aggressive behavior at CPT. In addition, the Regional Center staff were concerned about suicide risk and medication compliance issues if Rosalinda were to be returned to her mother's home. Previously, Rosalinda's placement with her mother had proven inadequate precisely because Rosalinda did not take her medications, used alcohol, and displayed aggression while at home. It appeared to Nagafuji that Rosalinda continued to need a higher level of care than could be provided at home. He drafted a report requesting that Rosalinda be recommitted to CPT pursuant to Welfare and Institutions Code section 6500. If Rosalinda were able to display stability for a substantial period of time, the Regional Center staff would consider transitioning her to a lower level of care such as a board-and-care or group home placement. To date, Rosalinda had not been able to do that.
A.C. is Rosalinda's adoptive mother and biological aunt. Rosalinda lived with A.C. from age two and a half until age 18, when she went to live in a group home at A.C.'s request. At the time, individual doctors were giving Rosalinda different medications and no one was really monitoring them. As a result, Rosalinda began to throw loud tantrums. Rosalinda did not improve while she was in group or board-and-care homes, but A.C. noticed an improvement since Rosalinda was at CPT. Rosalinda appeared calmer and more alert, more like the laughing, talkative, happy person she used to be.
A.C. now very much wanted Rosalinda to return home because she missed Rosalinda. Her plan for caring for Rosalinda at home included getting a psychiatrist for her. Since A.C. worked five days a week from 11:00 p.m. to 7:00 a.m., other relatives would help care for Rosalinda. A.C. planned to send Rosalinda to Fremont Adult School to learn independent living skills. School lasted from 9:00 a.m. to 2:30 p.m., Monday through Thursday. A.C. would “make sure” Rosalinda takes her medications. She was not afraid of being assaulted by Rosalinda; Rosalinda had never been physically aggressive to her. If Rosalinda threw a tantrum at home, she would take a walk with Rosalinda, because that used to help her “a lot,” and she would have Rosalinda play with her dogs. A.C. would manage Rosalinda's incontinence by having someone take Rosalinda to the bathroom every three hours and have Rosalinda drink a bit more during the day and less at night. If Rosalinda started swatting or hitting people, A.C. would try to calm her down by talking to her.
Rosalinda testified on her own behalf. Given a choice, Rosalinda would prefer to live with A.C. She missed her family and her dogs. If she became agitated, Rosalinda would ask her mother for the medication she used on an “as needed” basis, or go on a walk. Rosalinda explained that she hurt her thumb when another girl assaulted her. Staff saw the incident, pulled the girl away, and cleaned her thumb. The next night, Rosalinda had a fever when staff took her vitals and she went to the hospital.
Rosalinda testified regarding the bedsheet incident. The bedsheet tore partway when it got caught in her thumb and Rosalinda pulled the sheet. She ripped the sheet the rest of the way for “fun.” She did not plan to hang herself with the sheet.
Rosalinda never physically hurts anybody; she just taps or swats them. She behaves this way because she dislikes CPT; she wants to be home and get her freedom back. Also, she sees that other people get attention for hitting others, and she is jealous of them. She does not hit to get attention; she just hits when she gets mad at others sometimes. Lately, she has been trying to stop herself from hitting and it has been working, although she still hits people.
At CPT, she copycatted someone else who was digging in the trash. She also digs through the trash because she is hungry from being on a low-calorie diet. She knows there are other things she can do instead of digging through the trash, such as asking for fruits and vegetables. She has tried to stop going into the trash, but she still does it.
She feels considerable anxiety during the day. She often feels anxious before she hits people and before she goes into the trash. Taking her “as needed” medicine always calms her down. If she cannot get her medications, she tries alternatives like walking, talking to staff or listening to music.
DISCUSSION
I. Mootness
See footnote *, ante.
II. Equal Protection of the Law
Rosalinda argues that revisions to section 6500 made in 2012, when her commitment was extended, deny her equal protection under the law. She is correct that after June 27, 2012, there are some developmentally disabled persons who are committed under section 6500 only for six months and only if they are found to be both dangerous and in “acute crisis.” Yet, all persons who were first committed before that date remain subject to a one-year commitment based on findings of mental retardation and dangerousness only. As we shall explain, we accept for the purposes of Rosalinda's argument that the two groups are “similarly situated,” but we find a rational basis for the statutory distinction. Before turning to our analysis, we briefly review the statutory revisions and the extant legislative history.
The Statutory Revisions
Prior to June 27, 2012, section 6500 provided that effective July 1, 1971, “no mentally retarded person may be committed to the State Department of Developmental Services ... unless he or she is a danger to himself or herself, or others.” A commitment order made pursuant to section 6500 et seq. expired automatically one year later, but “subsequent petitions for additional periods of commitment” were permitted. Any subsequent petitions were subject to the same procedures as the initial petition for commitment. (Stats. 2010, ch. 178, § 102, eff. Jan. 1, 2012 to June 26, 2012.)
In 2012, section 6500 was amended to read: “A person with a developmental disability shall not be committed to the State Department of Developmental Services pursuant to this article unless he or she is a person described in paragraph (2) ... of subdivision (a) of Section 7505 and is dangerous to self or others.” (§ 6500, subd. (b)(1), italics added, as amended by Stats. 2012, ch. 25, § 19, eff. June 27, 2012.) The term “developmental disability” includes mental retardation, among other conditions. (§§ 6500, subd. (a)(2), 4512, subd. (a).)
Section 7505 refers in subdivision (a)(2) to persons committed by a court to Fairview Developmental Center “due to an acute crisis” as defined in section 4418.7.
An order of commitment made with respect to a person who meets the criteria of sections 6500 and 7505, subdivision (a)(2) expires “automatically six months after the earlier of the order of commitment pursuant to this section or the order of a placement in a developmental center pursuant to Section 6506, unless the regional center, prior to the expiration of the order of commitment, notifies the court in writing of the need for an extension.” An extension, if granted, cannot extend the total commitment time beyond one year. For good cause, the court may grant one further extension for up to 30 days. ( § 6500, subd. (c)(2).)
.Section 4418.7 provides in relevant part: “For purposes of this section, an ‘acute crisis' means a situation in which the consumer meets the criteria of Section 6500 and, as a result of the consumer's behavior, all of the following are met: [¶] (A) There is imminent risk for substantial harm to self or others. [¶] (B) The service and support needs of the consumer cannot be met in the community, including with supplemental services as set forth in subparagraph (E) of paragraph (9) of subdivision (a) of Section 4648 and emergency and crisis intervention services as set forth in paragraph (10) of subdivision (a) of Section 4648. [¶] (C) Due to serious and potentially life-threatening conditions, the consumer requires a more restrictive environment for crisis stabilization.” (§ 4418.7, subd. (d)(1).)
Section 6500 was amended again in 2012. For our purposes, it is essentially identical to the prior version of section 6500 except it states a third category of persons may be committed to the State Department of Developmental Services under subdivision (b)(1): a person who “currently is a resident of a state developmental center or state-operated community facility pursuant to an order of commitment made pursuant to this article prior to July 1, 2012, and is being recommitted pursuant to paragraph (3) of this subdivision.” Paragraph (3) provides: “In the event subsequent petitions are filed with respect to a resident of a state developmental center or a state-operated community facility committed prior to July 1, 2012, the procedures followed and criteria for recommitment shall be the same as with the initial petition for commitment.” (§ 6500, as amended by Stats. 2012, ch. 439, § 21, eff. Sept. 22, 2012.)
Effective June 27, 2013, section 6500 was amended once again to clarify that a person with a developmental disability who is found to be a danger to herself or others may be committed to the State Department of Developmental Services for residential placement less restrictive than a state developmental center or state-operated community facility. (§ 6500, subd. (b)(1)(A) & (B), as amended by Stats. 2013, ch. 25, § 11.)
Legislative History
The extant legislative history of revisions to section 6500 in 2012 makes clear that Assembly Bill No. 1472 was introduced by the Assembly Budget Committee to deal with “lower than anticipated revenue projections” and expected cuts of $200 million to the 2012–2013 budget for the Department of Developmental Services. Ninety-nine percent of the consumers served by that department received community-based services while living on the outside. Yet, approximately “1,800 individuals reside in four state-operated DCs [state-run developmental center institutions] and one state-operated community facility. Consistent with national trends that support integrated services and reduced reliance on state institutions, California has been reducing its use of DCs as a placement for individuals with developmental disabilities for several decades.” Among the several “policy changes necessary to implement the projected budget reduction,” the bill included provisions restricting admission to DCs while at the same time expanding “the availability of adult residential facilities for persons with special health care needs to consumers of any regional center moving from a DC.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1472 (2011–2012 Reg. Sess.) as amended June 13, 2012, pp. 1–4.)
Assembly Bill No. 1471 recognized Assembly Bill No. 1472 created “new restrictions on admissions to Developmental Centers.” However, the Legislature decided the admission and recommitment criteria applicable to individuals committed before the 2012 amendments would still apply to the preamendment group. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1471 (2011–2012 Reg. Sess.) as amended Aug. 24, 2012, p. 3.) The amendments in the bill were “technical, non-substantive, and clean-up in nature.” (Assem. Budget Com., Conc. in Sen. Amends. to Assem. Bill No. 1471 (2011–2012 Reg. Sess.) as amended Aug. 24, 2012, p. 2.)
Equal Protection
Our courts have often assessed an equal protection challenge in the context of a prospective sentencing change that results in the imposition of different consequences on particular offenders for the same conduct based on when the offense took place. Although we recognize that treatment under a civil commitment scheme is not equivalent to punishment for a crime, we find the analogy instructive. For example, in People v. Floyd (2003) 31 Cal.4th 179, 1 Cal.Rptr.3d 885, 72 P.3d 820 (Floyd ), the defendant argued that the passage of Proposition 36 created two groups of similarly situated nonviolent drug offenders—those convicted before July 1, 2001 whose judgments were not yet final, and those convicted after July 1, 2001—and by denying the first group access to court-supervised treatment instead of jail, the law violated equal protection. In reviewing this argument, our Supreme Court noted “[n]umerous courts ... have rejected such a claim—including this court.” (Id. at p. 188, 1 Cal.Rptr.3d 885, 72 P.3d 820.) “A refusal to apply a statute retroactively does not violate the Fourteenth Amendment.” (People v. Aranda (1965) 63 Cal.2d 518, 532, 47 Cal.Rptr. 353, 407 P.2d 265, superseded by statute on another point as stated in People v. Homick (2012) 55 Cal.4th 816, 874, 150 Cal.Rptr.3d 1, 289 P.3d 791; see also Baker v. Superior Court (1984) 35 Cal.3d 663, 668, 200 Cal.Rptr. 293, 677 P.2d 219 (Baker ).) “The Legislature properly may specify that such statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.” ( In re Kapperman (1974) 11 Cal.3d 542, 546, 114 Cal.Rptr. 97, 522 P.2d 657.) Retroactive application of a punishment-mitigating statute is not a question of constitutional right, but of legislative intent. (People v. Henderson (1980) 107 Cal.App.3d 475, 488, 166 Cal.Rptr. 20.) “ ‘Nothing ... suggests that the equal protection clause prohibits the Legislature from creating or abolishing a treatment program prospectively.’ ” (Floyd, supra, 31 Cal.4th at p. 191, 1 Cal.Rptr.3d 885, 72 P.3d 820, quoting Baker, supra, 35 Cal.3d at p. 669, 200 Cal.Rptr. 293, 677 P.2d 219.)
Therefore, the legislative decision to alter or change a sentencing scheme based on that branch's determination that a modification is appropriate is recognized in the above cases along with the prerogative to set a calendar date for the commencement of that “new” scheme. It has happened with the passage of Proposition 36, as well as the recent 2011 Public Safety Realignment Act (Realignment Act). (People v. Lynch (2012) 209 Cal.App.4th 353, 359, 146 Cal.Rptr.3d 811 (Lynch ).) It seems equally reasonable to accept this legal principle when considering civil commitment schemes such as Welfare and Institutions Code section 6500 et seq. (See Baker, supra, 35 Cal.3d at pp. 668–669, 200 Cal.Rptr. 293, 677 P.2d 219 [prospective repeal of the mentally disordered sex offender (MDSO) law is constitutional].) “ ‘[T]he Fourteenth Amendment does not forbid statutes or statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.’ ” (Baker, supra, 35 Cal.3d at p. 669, 200 Cal.Rptr. 293, 677 P.2d 219, quoting Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505, 31 S.Ct. 490, 55 L.Ed. 561; see also Lynch, supra, 209 Cal.App.4th at p. 359, 146 Cal.Rptr.3d 811 [prospective application of Realignment Act is constitutional].)
We assume for the sake of Rosalinda's argument that individuals subject to commitment under section 6500, on either side of the July 1, 2012 divide, are similarly situated to each other for the purpose of the law, which, as we see it, is to isolate for public safety reasons and to treat humanely and cost-effectively those developmentally disabled persons who are dangerous to themselves or others. (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172, 167 Cal.Rptr. 854, 616 P.2d 836, citing Baxstrom v. Herold (1966) 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620; In re Gary W. (1971) 5 Cal.3d 296, 304, 96 Cal.Rptr. 1, 486 P.2d 1201.)
Statutory classifications that treat similarly situated mentally retarded persons differently with respect to issues affecting their civil commitments are evaluated using rational basis review. (Barrett, supra, 54 Cal.4th at p. 1111, fn. 21, 144 Cal.Rptr.3d 661, 281 P.3d 753; Heller v. Doe (1993) 509 U.S. 312, 319–321, 113 S.Ct. 2637, 125 L.Ed.2d 257 (Heller ).) In Heller, the United States Supreme Court used rational basis review to uphold Kentucky's use of a clear and convincing standard of proof to commit the mentally retarded and a reasonable doubt standard of proof to commit the mentally ill. Under rational basis review, “a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ [Citations.] [¶] A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. ‘[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.’ [Citations.] A statute is presumed constitutional ... and ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,’ [citation] whether or not the basis has a foundation in the record.” (Heller, supra, 509 U.S. at pp. 319–321, 113 S.Ct. 2637.)
In view of the principles discussed above, and applying rational basis review to the issue before us, we have no difficulty finding constitutional the new statutory scheme envisioned by the prospective 2012 revisions to section 6500. The legislative prerogative to change the law prospectively is no different with respect to experimental treatment protocols than with experimental sentencing schemes. “Equal protection considerations will not preclude the legislative branch from prescribing experimental programs.” (McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1021, 140 Cal.Rptr. 168.) The Legislature has a rational interest in “limiting the potential costs of its experiment,” and prospective application is reasonably related to this goal. (Lynch, supra, 209 Cal.App.4th at p. 361, 146 Cal.Rptr.3d 811.)
The changes to the criteria for and duration of commitments under section 6500 are no less significant a legislative experiment than the prospective application of the Realignment Act upheld in Lynch or the prospective repeal of the MDSO laws upheld in Baker, supra, 35 Cal.3d 663, 200 Cal.Rptr. 293, 677 P.2d 219. As the extant legislative history of section 6500 and its companion statutes (e.g., §§ 7505, 4418.7) make clear, the Legislature has concluded that more cost-effective ways must be found to isolate, yet humanely treat, developmentally disabled persons who pose a danger to themselves or others. Going forward, it has determined to invest in community-based placement and services over regional center-based placements for the treatment and isolation of the dangerous developmentally disabled.
In our view, Baker presents a close analogue to this case and assists our analysis. In Baker, our Supreme Court found “[n]o significant constitutional problem [ ] presented by the prospective repeal of the MDSO laws.... [¶] Legislation almost inevitably creates some disparities and the differential results which follow the termination of the MDSO program appear no different than those which inevitably accompany either the establishment or elimination of any statutory treatment program.... [¶] [T]he Legislature decided in 1981 that the MDSO program was not sufficiently successful to warrant continuation; it therefore provided that no one convicted after the enactment became effective should be committed to the MDSO program. As to those persons ‘other enactments ... would yield prison terms which would provide ... protection to society....’ (Stats. 1981, ch. 928, § 3.) [Fn. omitted.] At the same time, the Legislature decided that the program should not be ended for those persons already committed as MDSO's, apparently concluding that it would be inimical to the public safety simply to end the program altogether, resulting in the release of many still dangerous persons. [¶] When the Legislature eliminated the MDSO program, petitioners had already been committed and were serving their initial term imposed pursuant to section 6316.1; they all faced the possibility of an extension if, at the end of the maximum term prescribed for the sex offense, they met the criteria of section 6316.2. The repeal of the MDSO law did not affect the commitment which had been imposed in lieu of criminal sanctions; the commitment did not become more onerous than it had been. Petitioners were and still are entitled to release when no longer dangerous regardless of the period of confinement for the analogous prison term now specified for the offenses. Stripped to its essentials, petitioners' claim challenges the basic validity of all prospective lawmaking.” (Baker, supra, 35 Cal.3d at pp. 668–670, 200 Cal.Rptr. 293, 677 P.2d 219.)
Likewise, in this case, the legislative decision to implement prospectively community-based treatment programs for dangerous developmentally disabled persons has inevitably created some disparities between prior committees and new ones. As with the former MDSO committees, the Legislature has decided to proceed cautiously with respect to the release of developmentally disabled persons who have already been adjudicated to be dangerous to themselves or others and judicially placed in regional center facilities. That decision is neither irrational nor unconstitutional. “[A]n equal protection violation does not occur merely because different statutory procedures have been included in different civil commitment schemes. [Citation.] Nothing compels the state ‘to choose between attacking every aspect of a problem or not attacking the problem at all.’ [Citation.] Far from having to ‘solve all related ills at once’ [citation], the Legislature has ‘broad discretion’ to proceed in an incremental and uneven manner without necessarily engaging in arbitrary and unlawful discrimination.” (Barrett, supra, 54 Cal.4th at p. 1110, 144 Cal.Rptr.3d 661, 281 P.3d 753.) We hold no equal protection violation has occurred here.
III. Substantial Evidence
See footnote *, ante.
DISPOSITION
The judgment is affirmed. We concur:
Margulies, Acting P.J.