Opinion
F060923 Super. Ct. No. C9709
10-06-2011
THE PEOPLE, Plaintiff and Respondent, v. HENRY CHARLES SCOTT, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Louis M. Vasquez, Leanne LeMon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Henry Charles Scott appeals from his indeterminate commitment to a state mental hospital as a sexually violent predator (SVP). Among other things, he contends (1) the trial court erred by not instructing the jury that antisocial personality disorder is not a qualifying mental disorder within the meaning of the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.; the SVPA); (2) the SVPA violates his equal protection rights; (3) his indeterminate commitment violated due process, the ex post facto clause, the prohibition against cruel and unusual punishment and the double jeopardy clause; and (4) Proposition 83, by which the voters amended the SVPA, violated the single-subject rule for ballot initiatives. We will reverse the indeterminate commitment and remand for a hearing pursuant to People v. McKee (2010) 47 Cal.4th 1172 (McKee) to consider defendant's equal protection claim. In all other respects, we will affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On August 19, 2008, an amended petition was filed by the Kings County District Attorney alleging that defendant is an SVP within the meaning of the SVPA and seeking to have defendant committed to a state mental hospital for an indeterminate term. A jury trial was held to determine whether defendant met the criteria of an SVP. As defined in the SVPA, a "'[s]exually violent predator'" (or SVP) is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600.)
There were actually two jury trials. The first jury could not reach a verdict and a mistrial was declared. When the case was retried, the second jury found defendant to be an SVP by proof beyond a reasonable doubt. Our summary of the facts relates to the second trial.
At the commencement of trial, defendant stipulated that he had suffered qualifying offenses under the SVPA. Defendant also stipulated that on August 12, 1997, he had been found to be a SVP and his commitment had been extended four times since then.
The predominant focus of the trial in this case related to the question of whether defendant had a diagnosed mental disorder that made it likely he would continue to engage in sexually violent criminal behavior. The bulk of the testimony at trial was that of expert witnesses, which we now briefly summarize.
Dr. Harry Goldman
Dr. Harry Goldman, a licensed clinical psychologist, had extensive experience and expertise in the evaluation of SVP's. Goldman first evaluated defendant in 2007, interviewed him on two occasions, and was very familiar with defendant's history. As part of his evaluation, Goldman reviewed appellant's record, including various law enforcement documents. Goldman referred to past incidents or reported incidents of defendant's criminal and sexual conduct that were relevant to the diagnosis of defendant's mental condition. These incidents included the following:
In 1977, defendant was arrested for robbery, rape, and kidnapping. He and his brother-in-law picked up a man and a 17-year-old girl stranded by the side of a road. Defendant choked the man, forced him to give up his money, and then he and his brother-in-law left with the girl. She accused them of raping her. Appellant was convicted of robbery, but acquitted of rape. Appellant was sentenced to four years in state prison, and he was released in March of 1980.
In October of 1980, seven months after his release from prison, defendant raped a 15-year-old girl. Defendant was found guilty of rape and was sent to a state mental hospital for treatment as a "mentally disordered sex offender." During his commitment to the mental hospital, defendant was diagnosed with aggressive sexuality, which is now commonly referred to as paraphilia. Defendant was released on parole on April 10, 1987.
On April 29, 1988, one year after his release from prison, appellant sexually assaulted a 15-year-old girl who was on the couch in defendant's home. Defendant's girlfriend was living in the same house at the time and had already gone to bed. Defendant grabbed the girl by the head, hit her several times, forced her to take off her clothes, and committed oral copulation and rape. Defendant was convicted of oral copulation and sentenced to three years in state prison. He was released on December 15, 1989.
In February or March of 1990, two to three months after his release from prison, defendant kidnapped and attempted to sexually assault a 42-year-old woman. According to the victim's account, defendant grabbed her by the neck and dragged her to a public restroom. After she urinated in her pants from fright, he told her she could use the stall, but also told her to leave her pants down after she exited the stall. He then said he was going to "do it now," and that she must not scream or he would hurt her. At that moment, a police officer happened upon the scene, finding the victim against the wall and defendant close to her with his zipper down. Defendant was convicted of kidnapping and sentenced to 14 years in state prison.
In 1996 or 1997, he was found to meet the SVP criteria and was sent to Atascadero State Hospital. Soon after his arrival there, he was accused of following around a female staff member. Defendant reached phase two of the five-phase treatment program, but refused further treatment after 2008.
While in Coalinga State Hospital, defendant developed a relationship with a transsexual patient. In 2009, after the relationship apparently deteriorated, appellant was found on top of the transsexual patient, hitting the patient in the face with his fists.
Goldman diagnosed defendant with "paraphilia" and concluded defendant had a high risk of reoffending. Paraphilia was defined as a mental disorder involving sexual urges or fantasies to engage in nonconsensual sexual relations, where the urges or fantasies caused distress and came in episodes of six months or more at a time. Goldman considered several factors in reaching this diagnosis, including the number of defendant's prior sexual assaults and that defendant was sexually aroused while raping his victims even though they cried, screamed, resisted and/or defecated or urinated due to traumatic fear. The victim's fear was evidently part of defendant's deviant attraction, which was confirmed by the fact that he sexually assaulted his victims even though consenting female partners were available. The short period of time defendant was released from custody before he committed another sexual assault was also significant. Additionally, defendant's scores on the penile plethysmograph (PPG) test indicated arousal to nonconsensual sex. In regard to the likelihood of committing other violent sexual offenses, Goldman considered defendant's scores on the Static 99-R, MNSOST-R, Static 2002-R, and SORAG actuarial tests, as well as an analysis of certain dynamic risk factors, and concluded that defendant had a "high risk" of reoffending.
Dr. Bruce Yanofsky
Dr. Bruce Yanofsky, a licensed clinical psychologist with expertise in evaluating SVP's, carefully reviewed defendant's criminal and sexual history. He considered the nature of the sexual assaults, the fact that defendant was aroused by nonconsensual sex, that he reoffended shortly after release from his several incarcerations, and that he refused to take any responsibility for his crimes. Yanofsky concluded that defendant suffered from paraphilia not otherwise specified, and from a personality disorder not otherwise specified. Yanofsky stated that these conditions are "chronic"; "[i]n other words, they don't disappear."
Yanofsky opined that defendant was "likely" to reoffend. That opinion was based on defendant's scores on actuarial tests, on his known history of reoffending "after being sanctioned and during treatment" and his current refusal to undergo treatment. Yanofsky was aware of defendant's health problems, medications and age (i.e., approaching 60), but these factors were insufficient to change Yanofsky's opinion as to the risk that defendant would reoffend.
Dr. Debra Inman
Dr. Debra Inman, a psychologist engaged in the practice of making forensic evaluations, had expertise in evaluating SVP's. She evaluated defendant in 2007, 2008, 2009 and in 2010, and interviewed defendant in connection with the 2008 and 2009 evaluations. In addition, she reviewed the record of defendant's criminal and sexual history. She was also aware that defendant had made past statements admitting to having "irresistible sexual urges that he can't control." In Inman's initial 2007 report, she indicated defendant may not meet the SVP criteria anymore because defendant was a model patient, he had medical conditions, he was approaching 60 years of age and his last offense was in 1991. However, Inman changed her opinion in 2008 after interviewing defendant: "It seemed to me that all the factors that were identified as risk concerns were still there, and he talked about that '9[0] victim with anger[.]" After the 2009 attack on a transsexual patient, that also became a factor indicating that he still met the criteria of an SVP.
In coming to her present opinion of defendant's mental condition, Inman noted that she had "all along" diagnosed defendant with paraphilia not otherwise specified, but she viewed that as a "rule out diagnosis which means maybe, maybe not." Inman agreed there was "a good argument" for diagnosing defendant with paraphilia (i.e., that "he finds it sexually arousing to attack someone"); but it seemed to her there was a pattern in which his personality issues were actually driving his compulsive behavior (i.e., "he feels compelled to attack them because they've psychologically wounded him or he thinks they have"). In Inman's view, this pattern involved defendant's subjective belief the victim was sexually promiscuous or aggressive, followed by defendant's hostility and anger that the victim was seemingly rejecting him, and then he would sexually attack or rape the victim. In the end, Inman's diagnosis was that defendant had a personality disorder not otherwise specified.
It was unclear whether she actually ruled out paraphilia, or simply considered paraphilia to be a secondary diagnosis that was present along with the personality disorder.
Although Inman diagnosed defendant's mental disorder in somewhat different terms than the other two experts, she agreed that as a result of defendant's mental disorder, he was at a significant risk to commit a sex offense if released from custody.
Defendant's Testimony
Defendant testified on his own behalf. He described his version of the past sexual assaults in terms of the emotions he was going through and what the other person said or did to make him angry, and he denied ever raping his victims. He said that at Atascadero State Hospital, he fully cooperated in undergoing the initial phases of treatment and that he received positive reviews from his clinicians. However, after he was transferred to Coalinga State Hospital he became frustrated and angry because they were going to make him start the program over. Defendant also testified concerning his health problems. He said he had a low heart rate and was easily fatigued. He also had an enlarged prostate. Defendant said he had to have a pacemaker surgically implanted and was then put on medications for high blood pressure. He has been given a wheelchair, and he often does nothing but sit in his wheelchair. In the past, he had been able to occasionally play "old man" racquetball, but in the last six months he has not even been able to do that. He said that as a result of side effects of his blood pressure medications, he has no sex drive and has not had an erection in the past year.
Jury Verdict and Defendant's Recommitment
At the close of trial, the jury was instructed that it was the People's burden to prove that defendant had been convicted of qualifying offenses, that defendant had a diagnosed mental disorder, and that as a result of that disorder, he was a danger to the health and safety of others because it was likely he would engage in sexually violent predatory criminal behavior. The instructions were clearly based on, and closely followed, the statutory language in the SVPA. The parties did not have any objections to the jury instructions.
During closing argument, the prosecutor pointed out there was "no serious challenge" to the fact that defendant suffered from a mental disorder. He noted that Dr. Inman's diagnosis indicated defendant was motivated more by anger, while the other two experts opined that defendant's conduct was based on sexual motivations. However, all three of the experts agreed that defendant had a mental disorder, and all three agreed that as a result of his mental disorder, there was a significant likelihood that, if released, he would reoffend through the same kind of predatory sexual behavior.
On September 1, 2010, the jury found true beyond a reasonable doubt that defendant is an SVP. At that time, the trial court ordered defendant recommitted for an indeterminate term to Coalinga State Hospital pursuant to section 6604. Defendant's timely appeal followed.
DISCUSSION
I. Jury Instructions
Defendant contends the trial court erred by failing to instruct the jury that an antisocial personality disorder does not qualify as a diagnosed mental disorder within the meaning of the SVPA. We reject defendant's contention for two reasons: (1) He did not request such an instruction in the trial court and, therefore, the issue was forfeited; and (2) An antisocial personality disorder may constitute a diagnosed mental disorder under the SVPA where, as here, it is shown that as a result of the particular disorder in defendant's case, he was likely to engage in predatory sexual crimes. We now explain.
As summarized above, two of the experts (Drs. Goldman and Yanofsky) testified that defendant had paraphilia, which defendant acknowledges to be an adequate diagnosis under the SVPA. The other expert (Dr. Inman) testified to a diagnosis of personality disorder. Defendant's argument focuses on the latter diagnosis, since the jury could have relied on that alone. We note that all three experts opined that defendant was likely to reoffend as a result of his diagnosed mental disorder, whatever its descriptive label.
A. Forfeiture
A trial court is required to instruct the jury on the general principles of the law necessary to the jury's understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Here, the trial court instructed the jury with CALCRIM No. 3454, the standard jury instruction defining an SVP. The instruction told the jury that the prosecution had to prove beyond a reasonable doubt that (1) defendant has been convicted of committing sexually violent offenses against one or more victims; (2) defendant had a diagnosed mental disorder; and (3) as a result of that diagnosed mental disorder, defendant was a danger to the health and safety of others because it was likely that he would engage in sexually violent predatory criminal behavior. The term "diagnosed mental disorder" was explicitly defined in the instruction as "conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit sexual acts to an extent that makes him or her a menace to the health and safety of others." In the same instruction, the trial court also told the jury: "A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial[,] serious and well-founded risk that the person will engage in such conduct if released into the community. The likelihood that the person will engage in such conduct does not have to be greater than 50 percent."
The instructions referred to above were a clear and understandable summary of the necessary elements for finding a person to be an SVP, and they closely followed or accurately paraphrased the statutory wording set forth in the SVPA, including the definition of the term "'[d]iagnosed mental disorder.'" (See § 6600, subd. (c).) It appears the jury was correctly instructed on the relevant law regarding what conditions may constitute a diagnosed mental disorder under the SVPA. (See People v. Carlin (2007) 150 Cal.App.4th 322, 345-346 [statutory language is generally appropriate basis for instruction].)
Section 6600, subdivision (c), defines a "'[d]iagnosed mental disorder,'" as including "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."
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Therefore, if defendant wanted a more specific, further instruction, it was incumbent on him to request it. "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024; People v. Spurlock (2003) 114 Cal.App.4th 1122, 1130.) The trial court is not required to give such a pinpoint or amplifying instruction on its own initiative, "and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so." (People v. Mayfield (1997) 14 Cal.4th 668, 778.) A defendant's failure to request a clarifying or amplifying instruction at trial forfeits any argument on appeal that the instruction given was ambiguous or incomplete. (People v. Cole (2004) 33 Cal.4th 1158, 1211.)
Since the jury was correctly instructed on the law regarding the definition of a diagnosed mental disorder under the SVPA, if defendant wished the jury to be more specifically instructed on whether (or not) an antisocial personality disorder may qualify as a diagnosed mental disorder, he should have requested such an instruction. His failure to do so forfeits the claim on appeal.
B. Defendant's Antisocial Personality Disorder Was a Qualifying Diagnosis Under the SVPA
Even assuming for the sake of argument that defendant did not forfeit the right to assert the purported instructional error, we would nevertheless conclude defendant failed to establish that such error occurred. Defendant's argument is premised on the assumption that an antisocial personality disorder can never constitute a diagnosed mental disorder under the SVPA. Defendant's assumption is mistaken; therefore, his argument fails.
In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1152-1153 (Hubbart), the California Supreme Court rejected a claim that the definition of a mental disorder in the SVPA was overbroad because it allegedly allowed commitment "based on a range of diagnosed mental impairments broader than what is constitutionally allowed, including mental disorders characterized primarily by an inability to control sexually violent impulses and behavior." In so holding, Hubbart relied on Kansas v. Hendricks (1997) 521 U.S. 346, 358-359 (Hendricks), for the propositions that (1) civil commitment is permissible as long as the triggering mental condition consists of a volitional impairment rendering the person dangerous beyond his or her control, and (2) due process does not dictate the precise manner in which this volitional impairment is statutorily described. (Hubbart, supra, at p. 1156.) Although the terms "'personality disorder'" and "'mental abnormality'" were used in the Kansas statute discussed in Hendricks, these were merely differences in semantics. (Id. at p. 1157.) The court noted the SVPA closely paralleled the Kansas scheme (approved in Hendricks) by describing the requisite mental disorder as one that predisposes the person to the commission of criminal sexual acts in a degree constituting a menace to the health and safety of others. (Hubbart, supra, at p. 1157.) Thus, the SVPA passed constitutional muster by properly establishing the requisite connection between the impaired volitional control and the danger posed to the public. (Hubbart, supra, at p. 1158.)
The Hubbart court also considered a claim that the SVPA must be struck down because "the definition of a 'diagnosed mental disorder' does not expressly exclude antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior, such as paraphilia." (Hubbart, supra, 19 Cal.4th at p. 1158.) The Hubbart court rejected that claim, emphasizing that while due process requires an inability to control dangerous conduct, it "does not restrict the manner in which the underlying impairment is statutorily defined." (Ibid.)
Similarly, in People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204, 211 (Blakely), the Court of Appeal held that a trial court erred when it found that antisocial personality disorder could not, as a matter of law, constitute a mental disease, defect or disorder within the meaning of Penal Code section 1026.5. That statute allows for an extended civil commitment if "by reason of a mental disease, defect, or disorder [the person] represents a substantial danger of physical harm to others." (Ibid.; Blakely, supra, at p. 210.) The Court of Appeal held that a trier-of-fact could reasonably determine that a diagnosis of antisocial personality disorder was a mental disorder under Penal Code section 1026.5. (Blakely, supra, at p. 212, fn. 10, pp. 213-214, fn. 11.) In conclusion, the holdings of Hubbart and Blakely are plainly contrary to defendant's argument that antisocial personality disorder cannot be a qualifying mental disorder under the SVPA.
Defendant acknowledges Hubbart and Blakely, but suggests that they are no longer good law in light of the more recent United States Supreme Court case of Kansas v. Crane (2002) 534 U.S. 407 (Crane). We disagree. Although Crane held that civil commitment may not be used to protect the public from general criminality, it affirmed that a state has the right to civilly commit persons with serious mental disorders who have a lack of ability to control their behavior and pose a high risk of committing sexually violent offenses if released. (Crane, supra, at pp. 412-414.) That is entirely consistent with Hubbart, Blakely and the plain language of the SVPA. Moreover, nothing in Crane suggested that antisocial personality disorder could not be a qualifying mental disorder for purposes of civil commitment. Defendant has failed to show any instructional error.
We conclude by reiterating that under the SVPA, an essential element for finding that a person is a SVP is that 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 criminal behavior." (§ 6600, subd. (a)(1).) Furthermore, under the SVPA, a "'[d]iagnosed 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." (§ 6600, subd. (c).) Neither the SVPA nor the instructions in this case provide that a person may be civilly committed as a SVP solely on a finding that the person has an antisocial personality disorder (or other mental disorder). Rather, it is where the evidence shows that the mental disorder makes the person a danger because of the likelihood the person will reoffend (i.e., commit further predatory criminal sexual acts) that the disorder qualifies under the law. It is clear that the jury was so instructed. We conclude the trial court properly instructed the jury on the definition of what constitutes a diagnosed mental disorder under the SVPA.
II. Equal Protection
Defendant contends the SVPA violated his constitutional right to equal protection because by imposing an indefinite commitment it treats SVP's differently from those committed as mentally disordered offenders (MDO's) and persons found not guilty by reason of insanity (NGI's). Based on the Supreme Court's holding in McKee, supra, 47 Cal.4th at pp. 1184, 1196-1211, the People agree that the case must be remanded to the trial court to allow the prosecution to show that differential treatment of SVP's is justified.
In McKee, the Supreme Court concluded the People had not yet carried their burden of justifying the differences between SVPA and other civil commitment statutes. (McKee, supra, 47 Cal.4th at p. 1207.) It held that because neither the People nor the courts below properly understood that burden, "the People will have an opportunity to make the appropriate showing on remand." (Id. at p. 1208.) At the remanded hearing, it would be necessary to make the following showing:
"It must be shown that, notwithstanding the similarities between SVP's and MDO's, the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society. This can be shown in a variety of ways. For example, it may be demonstrated that the inherent nature of the SVP's mental disorder makes recidivism as a class significantly more likely. Or it may be that SVP's pose a greater risk to a particularly vulnerably class of victims, such as children.... Or the People may produce some other justification." (McKee, supra, 47 Cal.4th at p. 1208, fn. omitted.)
The same relief is required here. Because McKee is binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we conclude that the issue of whether differential treatment of SVP's violates the right of equal protection must be considered on remand at a hearing consistent with McKee to determine whether the government can "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 pp. 1208-1209, fn. omitted).
III. Other Constitutional Challenges
As defendant acknowledges, his due process and ex post facto challenges to the SVPA were rejected in McKee, supra, 47 Cal.4th at pages 1188 through 1195, and we are bound by that holding (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). McKee also reaffirmed that an SVP commitment is civil rather than punitive in nature (McKee, supra, 47 Cal.4th at pp. 1193-1195), which means that the SVPA does not violate the double jeopardy clause (Hendricks, supra, 521 U.S. at p. 369; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2) or the prohibition against cruel and unusual punishment (Hendricks, supra, at p. 369; Hubbart, supra, 19 Cal.4th at p. 1179; People v. Chambless, supra, at p. 776, fn. 2).
IV. Proposition 83
The initiative power is subject to a constitutional limitation known as the single-subject rule which provides: "An 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).) Defendant contends that Proposition 83, by which voters amended the SVPA, violated the single-subject rule for ballot initiatives. We disagree.
The standard by which we review a challenge based on the single-subject rule has been summarized by our Supreme Court as follows:
"'In articulating the proper standard to guide analysis in this context, the governing decisions establish that "'"[a]n initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are 'reasonably germane' to each other," and to the general purpose or object of the initiative.'" [Citation.] As we recently have explained, "the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common them or purpose." [Citation.] Accordingly, we have upheld initiative measures "'which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose.' [Citation.]" [Citation.]' [Citation.] The common purpose to which the initiative's various provisions relate, however, cannot be '"so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement." [Citation.]' [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 575.)
On November 7, 2006, California voters passed Proposition 83, entitled "'The Sexual Predator Punishment and Control Act: Jessica's Law,'" amending the SVPA and other provisions of law. (McKee, supra, 47 Cal.4th at p. 1186.) As summarized in McKee: "Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. It increases penalties for sex offenses, both by altering the definition of some sex offenses and by providing longer penalties for some offenses as well as modifying probation and parole provisions; it requires a GPS tracking device for felons subject to such registration for the remainder of their lives; it prohibits a registered sex offender from living within 2,000 feet of schools and parks; and it changes the SVP Act by reducing the number of sexually violent offenses that qualify an offender for SVP status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, pp. 43-44.) Proposition 83 also changes an SVP commitment from a two-year term to an indefinite commitment." (McKee, supra, at p. 1186.)
Proposition 83's stated intent was "'to strengthen and improve the laws that punish and control sexual offenders.'" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1282; Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 31, p. 138.) It accomplished this intent by modifying civil and criminal statutes and regulatory provisions relating to sex offenders. Defendant argues that Proposition 83 fails to meet the singe-subject requirement because of its "inclusion of provisions modifying civil, criminal, and regulatory matters."
Defendant's argument is without merit. The fact that some provisions modified criminal statutes, while others modified civil statutes relating to commitment of SVP's, does not mean the single-subject rule was violated. The test is whether the various parts of the initiative were reasonably germane to each other and furthered a common purpose or theme. (Manduley v. Superior Court, supra, 27 Cal.4th at p. 575.) Proposition 83 readily satisfied that test. The several provisions of Proposition 83 were reasonably related to and furthered the goal of protecting Californians from the threat posed by sex offenders by strengthening the laws that punish or control such offenders. Defendant has failed to demonstrate any basis for concluding that Proposition 83 violated the single-subject rule.
DISPOSITION
The order for commitment finding defendant to be an SVP within the meaning of the SVPA and committing him to the custody of the Department of Mental Health is affirmed, except as to the commitment for an indeterminate term, which is reversed to allow consideration of defendant's equal protection claim in light of McKee. The matter is remanded to the trial court for a hearing on whether the indefinite commitment provided under the SVPA 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. 1208-1211.) "Finality of the proceedings" in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
Kane, J.
WE CONCUR:
Wiseman, Acting P.J.
Levy, J.