Opinion
D049582B
4-18-2008
THE PEOPLE, Plaintiff and Respondent, v. PAUL ALLEN VEHAR, Defendant and Appellant.
NOT TO BE PUBLISHED
Paul Allen Vehar appeals an order involuntarily committing him for an indeterminate term to the custody of the State of California Department of Mental Health (DMH) issued after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) (the Act). On appeal, Vehar contends the order must be reversed because: (1) his indeterminate commitment pursuant to the Act, as amended by the Legislature and California voters in 2006, violated his constitutional rights to due process of law, against ex post facto laws and double jeopardy, and to equal protection under the law; (2) the trial court did not have jurisdiction over the commitment proceeding or, if it had jurisdiction, his commitment for an indeterminate term constituted an improper retroactive application of the amended Act; and (3) the trial court abused its discretion by admitting hearsay evidence.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On January 6, 2006, the People filed a petition for the continued involuntary civil commitment of Vehar as an SVP pursuant to the Act (prior to its 2006 amendment). The petition alleged Vehar had suffered multiple prior convictions for lewd acts on children under the age of 14 (Pen. Code, § 288, subd. (a)). It also alleged that Vehar had been found to be an SVP in 2004 and civilly committed for a two-year period. The petition requested that Vehar be committed to the DMHs custody for an additional two-year period.
On September 28, Vehars jury trial on the petition began. On October 5, the jury returned a verdict finding that Vehar was an SVP within the meaning of the Act. On October 5, the trial court ordered that Vehar be committed to the custody of the DMH for an indeterminate term pursuant to the Act (as amended by the Legislature on September 20).
Vehar timely filed a notice of appeal.
DISCUSSION
I
The Act and Its 2006 Amendments
The Act, as originally enacted effective January 1, 1996 (Stats. 1995, ch. 763, § 3), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, in a unanimous jury verdict after trial (former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt to be SVPs (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147 (Hubbart).) A persons commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5; People v. Shields (2007) 155 Cal.App.4th 559, 562.) On filing of that petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e); People v. Munoz (2005) 129 Cal.App.4th 421, 429 ["[A]n SVP extension hearing is not a review hearing. . . . An SVP extension hearing is a new and independent proceeding at which . . . the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."]; Cooley, at p. 243, fn. 5; Shields, at p. 562; People v. Roberge (2003) 29 Cal.4th 979, 984.)
Former 6604 provided in pertinent part: "[T]he person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article or unless the term of commitment changes pursuant to subdivision (e) of Section 6605."
As originally enacted, an SVP was defined as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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." (Former § 6600, subd. (a).) A "sexually violent offense" includes a Penal Code section 288 lewd act on a child under age 14. (Former § 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 922; see also People v. Roberge, supra, 29 Cal.4th at pp. 988-989.)
The Act does not require proof the person "is more likely than not to reoffend." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 923.)
The Act is "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. [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177.) The Act "therefore provides two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program. . . . [Second,] [s]ection 6605 [requires] an annual review of a defendants mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)
On September 20, 2006, the Legislature enacted urgency legislation amending the Act, effective immediately, and on November 7, 2006, California voters passed Proposition 83 (also known as Jessicas Law), amending the Act effective November 8, 2006. (People v. Shields, supra, 155 Cal.App.4th at pp. 562-563.) Pursuant to those amendments, "former section 6604 was amended to eliminate the two-year [commitment] term provision and to provide for an indeterminate term of confinement (subject to the SVPs right to petition for release). [Citations.]" (Id. at p. 562.) Section 6604 of the Act now provides: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . ." (Italics added.) The 2006 amendments did not change section 6604s requirement that a persons commitment as an SVP be proved at trial beyond a reasonable doubt. (§ 6604.) As before the 2006 amendments, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, the 2006 amendments added new provisions to section 6605 regarding the DMHs obligations:
Because Proposition 83 is more recent and was passed by California voters, we conclude Proposition 83s amendments to the Act are controlling as of November 8, 2006, to the extent they are inconsistent with the Legislatures 2006 amendments. (See People v. Whaley (2008) 160 Cal.App.4th 779, 787-789.)
"Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the persons SVP condition to warrant release: "The People find and declare each of the following: [¶]. . . [¶] (k) 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." [Citations.]" (People v. Shields, supra, 155 Cal.App.4th at p. 564.)
The amendments changed the definition of an SVP by reducing the number of victims in the qualifying sexually violent offense(s) from two to one under section 6600, subdivision (a)(1), which now provides: " Sexually violent predator means 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." (Italics added.)
"(a) . . . The annual report [following a current examination] shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The [DMH] shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person. The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.
"(b) If the [DMH] determines that either: (1) the persons 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. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney, or the committed person." (Italics added to indicate language retained from original Act.)
Therefore, if the DMH determines a person is no longer an SVP, it is required to authorize that person to file a petition for unconditional release or discharge. (§ 6605, subd. (b).) The 2006 amendments did not amend the provisions regarding the courts consideration of that petition for release. If, at a show cause hearing on that petition, the trial court determines there is probable cause to believe the persons mental disorder has so changed that 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 must set an evidentiary hearing (i.e., a trial) on the issue. (§ 6605, subd. (c).) Furthermore, section 6605, subdivision (d), continues to provide (without amendment):
"At the [evidentiary] hearing, the committed person shall have the right to be present and shall be entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding. . . . The committed person also shall have the right to demand a jury trial and to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed persons diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged."
If the court or jury finds in the committed persons favor, the person shall be unconditionally released and discharged. (§ 6605, subd. (e).)
If the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608 without the DMHs authorization in the same manner as before the 2006 amendments of the Act. (§ 6608, subd. (a) ["Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the [DMH]. . . ."]; People v. Cheek, supra, 25 Cal.4th at p. 902 ["Section 6608, which provides for conditional release to a community program, does not mention section 6605, and permits a defendant to be unconditionally released only after the defendant has spent a year in a conditional release program."].) Section 6608, subdivision (i), was not amended and continues to provide that on a committed persons section 6608 petition for conditional release: "In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence." (Italics added.) After a trial court denies a section 6608 petition, "the person may not file a new application until one year has elapsed from the date of the denial." (§ 6608, subd. (h).)
Section 6608, subdivision (d), provides: "The court shall hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community. If the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year. A substantial portion of the state-operated forensic conditional release program shall include outpatient supervision and treatment. The court shall retain jurisdiction of the person throughout the course of the program. At the end of one year, the court shall hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior. The court shall not make this determination until the person has completed at least one year in the state-operated forensic conditional release program. The court shall notify the [DMH] of the hearing date."
"Section 6605, on the other hand, permits unconditional release without prior placement in a conditional release program." (People v. Cheek, supra, 25 Cal.4th at p. 902.)
Because in 2006 the Legislature and California voters amended section 6604 to make an SVPs term of commitment indeterminate (rather than two years), a committed person now, in effect, "remains in custody until he successfully bears the burden of proving he is no longer an SVP or the [DMH] determines he no longer meets the definition of an SVP. [Citations.]" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.)
II
Federal Constitutional Right to Due Process
Vehar contends his involuntary commitment as an SVP under the Act, as amended by the Legislature and California voters in 2006, violated his federal constitutional right to due process of law.
A
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425.) "Although freedom from physical restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action [citation], that liberty interest is not absolute." (Kansas v. Hendricks (1997) 521 U.S. 346, 356.) A state must have "a constitutionally adequate purpose for the confinement." (OConnor v. Donaldson (1975) 422 U.S. 563, 574.) Hendricks stated:
"The [United States Supreme] Court has recognized that an individuals constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context: [¶] [T]he liberty interest secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. [Citation.] [¶] Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. [Citations.]" (Hendricks, supra, 521 U.S. at pp. 356-357.)
Hendricks concluded: "It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty. [Citation.]" (Hendricks, supra, 521 U.S. at p. 357.) In the context of civil commitment statutes, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a `mental illness or `mental abnormality. [Citations.]" (Id. at p. 358.)
B
Vehar argues the Act, as amended by the Legislature and California voters in 2006, violates his federal constitutional right to due process of law because it provides for an indefinite involuntary civil commitment without adequate safeguards to ensure only those persons with a current mental illness that makes him or her dangerous to the public continue to be confined. He argues a person committed as an SVP to an indeterminate term pursuant to section 6604 could, in effect, be detained for life, or long after he or she is not currently an SVP, because the Acts provisions for release are inadequate. He argues that, although a committed person may file a section 6608 petition for conditional release and subsequent unconditional discharge, section 6608, subdivision (i), unconstitutionally imposes on the petitioner the burden to prove by a preponderance of the evidence that he or she is entitled to such release.
Although Vehars opening brief also appears to challenge an SVPs burden under section 6605 to obtain a jury trial on his or her petition for release by first showing there is probable cause to believe his or her mental disorder has so changed that he or she is not dangerous and not likely to reoffend, his reply brief essentially waives that challenge by stating "section 6605, on its own, does not present any constitutional problems." In any event, based on our conclusions below regarding section 6608s provisions (which are more burdensome for SVPs), we would similarly conclude section 6605s provisions do not violate an SVPs constitutional right to due process.
We first address the question of whether Vehars due process and equal protection contentions are ripe for judicial review. Although the People did not raise that question in their respondents brief, we requested, and have received and considered, supplemental briefing by the parties regarding whether Vehars due process and equal protection contentions are ripe for review to the extent those contentions rely on the burden of proof and other provisions of section 6608 that may apply to him only in the future. "The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] . . . It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. On the other hand, the requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. [Citations.]" (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal), italics added.)"
`A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. [Citation.]" (Pacific Legal, supra, 33 Cal.3d at p. 171, quoting California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22.) In determining whether a controversy was ripe for review, Pacific Legal considered two factors that federal courts (i.e., U.S. Const., art. III, § 2, courts) evaluate in determining ripeness: " The [ripeness] problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. [Citation.]" (Pacific Legal, at p. 171, italics omitted, quoting Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149 (Abbott).) Assuming arguendo Pacific Legal adopted the Abbott test for determining ripeness for review by California courts, we conclude both factors support our review of Vehars due process and equal protection constitutional contentions in this appeal.
The United States Supreme Court has recognized that ripeness requirements for federal court review do not necessarily apply to review by state courts. (ASARCO Inc. v. Kadish (1989) 490 U.S. 605, 617.)
Regarding the first Abbott factor, both constitutional issues are fit for judicial decision. Vehar argues his indefinite involuntary civil commitment is unconstitutional because the Act, as amended in 2006, provides inadequate safeguards for his future release when he is no longer an SVP. He argues section 6608s provisions regarding future petitions for conditional release without DMH authorization deprive him of his constitutional rights to due process and equal protection. Therefore, Vehars challenge to his indefinite term of commitment pursuant to section 6604 cannot be viewed in isolation without consideration of the Acts comprehensive scheme for annual reviews and petitions for release (including § 6608), which he asserts is inadequate. Because he is, in effect, making a facial challenge to the provisions of section 6608, the further development of facts (e.g., by awaiting a future § 6608 petition for release) will not aid us in deciding those issues. His facial due process and equal protection constitutional challenges of the Act, as amended in 2006, present purely legal issues, and additional facts that may arise in the future will not aid us in making our decision. (Abbott, supra, 387 U.S. at p. 149, superseded by statute on another ground, as noted in Califano v. Sanders (1977) 430 U.S. 99, 105; Thomas v. Union Carbide Agric. Products Co. (1985) 473 U.S. 568, 581; Security National Guaranty, Inc. v. California Coastal Com. (2008) 159 Cal.App.4th 402, 418; San Diego County Water Authority v. Metropolitan Water Dist. (2004) 117 Cal.App.4th 13, 20, fn. 2; Hayward Area Planning Assn. v. Alameda County Transportation Authority (1999) 72 Cal.App.4th 95, 103 (Hayward).)
Regarding the second Abbott factor, were we to delay consideration of Vehars constitutional challenges until a future section 6608 petition for release is denied, he would suffer undue hardship in the event his instant challenges are subsequently determined to be meritorious, thereby invalidating his current civil commitment. In that event, Vehar would have been wrongfully confined during the significant period required to obtain a favorable final court decision in a future appeal, thereby violating his substantive liberty interest in freedom from unnecessary restraint. (Cf. People Allen (2007) 42 Cal.4th 91, 103-104.) Considering both Abbott factors, we conclude Vehars due process and equal protection contentions are ripe for our review in this appeal. (Pacific Legal, supra, 33 Cal.3d at p. 171; Abbott, supra, 387 U.S. at p. 149; Security National Guaranty, Inc. v. California Coastal Com., supra, 159 Cal.App.4th at p. 418; Caloca v. County of San Diego (2002) 102 Cal.App.4th 433, 442-443; Hayward, supra, 72 Cal.App.4th at p. 104.)
In any event, assuming arguendo Vehars due process and equal protection contentions are not technically ripe for review to the extent those contentions rely on the burden of proof and other provisions of section 6608, we nevertheless exercise our discretion under Pacific Legal to address those contentions in the instant appeal. (Pacific Legal, supra, 33 Cal.3d at p. 170; Hunt v. Superior Court (1999) 21 Cal.4th 984, 998-999 ["Postponing review . . . would leave uncertain the Countys health care obligations and undoubtedly result in additional, lengthy appellate proceedings."].) "[T]he [ripeness] requirement should not prevent courts from resolving concrete disputes if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. [Citations.]" (Pacific Legal, at p. 170.) In the circumstances of this case, Vehars facial due process and equal protection challenges to the Act, as amended in 2006, involve concrete disputes regarding his indefinite civil commitment as an SVP. Furthermore, were we to defer decision on those constitutional issues, there may be lingering uncertainty in the law regarding the constitutionality of the Act, as it was amended in 2006. Because both the Legislature and California voters amended the Act in 2006 and many members of the public presumably have an interest in the Acts continued application, we conclude Vehars constitutional challenges involve widespread public interest in a timely answer to those challenges. Accordingly, our review of those constitutional challenges in this appeal is warranted regardless of any ripeness deficiency. (Pacific Legal, at p. 170; Hunt, at pp. 998-999; Hayward, supra, 72 Cal.App.4th at p. 104.)
C
In People v. McKee (Mar. 20, 2008, D050554) ___ Cal.App.4th ___ (McKee), we addressed the same due process concerns raised by Vehar in this appeal and concluded the Act, as amended in 2006, does not violate a committed persons federal constitutional right to due process. (Id. at pp. 3876-3878.) In McKee, we stated: "There is no logical reason to conclude McKees initial section 6604 civil commitment for an indefinite term, subject to subsequent section 6605 annual examinations and potential annual petitions for release pursuant to sections 6605 and 6608, is inadequate to protect McKees federal constitutional right to due process of law." (Id. at p. 3876.) We further stated: "So long as an initial civil commitment for an indefinite term is subject to adequate periodic examinations and petitions for review or release to determine the current status of a committed person to ensure that a committed person who no longer qualifies for commitment is released, we conclude the federal constitutional right to due process does not prohibit an involuntary civil commitment for an indefinite term. [Citations.]" (Id. at pp. 3877-3878, fn. omitted.) Therefore, we rejected the defendants due process challenge to the amended Act to the extent it imposes an indeterminate term and section 6608 places on him the burden to prove by a preponderance of the evidence that he is no longer mentally ill or dangerous to others and therefore is entitled to release pursuant to a future petition for release without the DMHs authorization. (Id. at pp. 3876-3878.) We incorporate our reasoning in McKee and apply it to Vehars appeal to reach the same conclusion that the Act, as amended in 2006, does not violate his federal constitutional right to due process.
People v. Beck (1996) 47 Cal.App.4th 1676, cited by Vehar, is inapposite and does not require a contrary conclusion.
Vehar cites as support for his due process argument the case of Foucha v. Louisiana (1992) 504 U.S. 71, in which the court acknowledged its prior holding in Addington that a state may not civilly commit a person unless it shows by clear and convincing evidence that the person is mentally ill (e.g., insane) and dangerous. (Foucha, at pp. 75-76, 86, citing Addington v. Texas, supra, 441 U.S. at pp. 425-433.) Foucha also acknowledged its holding in Jones v. United States (1983) 463 U.S. 354, as we discussed in McKee, supra, 2008 D.A.R. at pp. 3874-3875, that a person found not guilty by reason of insanity may be automatically confined without a separate hearing to determine his or her current mental illness or dangerousness because the verdict is presumed to have shown those requirements, but that an insanity acquittee is entitled to release when he or she is no longer mentally ill or dangerous. (Foucha, at pp. 76-78, citing Jones, at pp. 363, 368, 370.) Because the evidence presented at a review hearing showed the insanity acquittee in Foucha was not currently mentally ill, the court concluded his continued confinement violated his constitutional right to due process. (Foucha, at p. 79.) Because at Vehars SVP commitment trial his mental illness and dangerousness were proved beyond a reasonable doubt, Foucha does not support Vehars assertion that his civil commitment to the DMH for an indeterminate term (subject to potential petitions for release pursuant to sections 6605 and 6608) violated his federal constitutional right to due process. Foucha did not address periodic commitment review hearings at which the committed person has the burden to prove by a preponderance of the evidence that he or she is entitled to release because no longer mentally ill or dangerous.
Vehar quotes an excerpt from Fouchas discussion of the appellants equal protection claim, in which the court stated: "[T]he State now claims that it may continue to confine Foucha, who is not now considered to be mentally ill, solely because he is deemed dangerous, but without assuming the burden of proving even this ground for confinement by clear and convincing evidence. The court below gave no convincing reason why the procedural safeguards against unwarranted confinement which are guaranteed to insane persons and those who have been convicted may be denied to a sane acquittee, and the State has done no better in this Court." (Foucha v. Louisiana, supra, 504 U.S. at p. 86.) However, because that language appears in the courts equal protection discussion, we conclude it does not control Fouchas language and holding regarding federal due process. In any event, we construe the quoted language from Foucha as prohibiting continued confinement of persons who are no longer mentally ill. Because it does not specifically address the burden of proof required at future release hearings, Foucha does not support Vehars due process challenge of section 6608s provision placing the burden on him to prove by a preponderance of the evidence that he is entitled to release because he is no longer mentally ill or dangerous. Contrary to Vehars apparent assertion, Foucha does not require that the People bear the burden at any future section 6608 release hearing to prove by clear and convincing evidence that he currently is mentally ill and dangerous. Because Foucha does not persuade us to reach a conclusion contrary to our conclusion in McKee, we apply our holding in McKee to this case and conclude the Act, as amended in 2006, does not violate Vehars federal constitutional right to due process.
Vehar belatedly argues in his reply brief that section 6608 also violates his federal constitutional due process right because even if he proves he is no longer an SVP at a future section 6608 release hearing, he would not be unconditionally released but instead conditionally released to an outpatient program for one year. Because Vehar untimely raised that argument, the People had no opportunity to respond to it and therefore we do not address it. In any event, we doubt that a one-year conditional release under section 6608 violates a committed persons federal constitutional right to due process.
III
Ex Post Facto and Double Jeopardy
Vehar contends the Act, as amended in 2006, violates the ex post facto and double jeopardy provisions of the United States and California Constitutions. He argues that because both the intent and effect of the Act, as amended, are punitive and not civil, it violates the constitutional prohibitions against ex post facto laws and double jeopardy.
In McKee, supra, 2008 D.A.R. 2869, we concluded:
"[A]lthough the amended Act provides for an indeterminate term, that terms duration is linked not to punishment, but to its stated purpose of treating the committed person and protecting the public from those persons who currently are SVPs. Because there are procedures for release of a committed person who no longer is an SVP (e.g., §§ 6605, 6608), the indeterminate term provided by section 6604 does not show the amended Act is now punitive. Accordingly [the 2006] amendments to the Act do not require a different conclusion than reached by the California Supreme Court in Hubbart. [Hubbart, supra, 19 Cal.4th at pp. 1176-1177.] Furthermore, the amendments to the Act do not show its purpose or effect is retribution or deterrence. [Citations.] . . . Therefore, like the court in Hubbart, we conclude: [The appellant] has not demonstrated that the [Act] imposes punishment or otherwise implicates ex post facto concerns. [Citation.]" (McKee, supra, 2008 D.A.R. at pp. 3879-3880, fn. omitted.)
We incorporate our reasoning in McKee and apply it to Vehars appeal to reach the same conclusion that the Act, as amended in 2006, does not violate the federal constitutional prohibition against ex post facto laws. Furthermore, because Vehar does not assert that the California Constitutions prohibition against ex post facto laws (i.e., Cal. Const., art. I, § 9) provides broader protection than the United States Constitutions prohibition, we conclude our reasoning in McKee similarly applies to his California Constitution argument. We conclude the Act, as amended in 2006, does not violate either the United States or California Constitutions prohibition against ex post facto laws.
In asserting the Act, as amended, violates the double jeopardy provisions of the United States and California Constitutions, Vehar relies on the same argument he made in asserting the Act violated the prohibition against ex post facto laws (i.e., the intent and effect of the Act, as amended, are punitive and not civil). Because we rejected that argument above, we similarly conclude the Act, as amended, does not violate the double jeopardy provisions of the United States and California Constitutions. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) Vehars civil commitment as an SVP for an indeterminate term under the Act, as amended, does not constitute a second criminal prosecution or punishment in violation of those constitutional prohibitions against double jeopardy.
Again, Vehar does not assert that the California Constitution provides broader protection against double jeopardy than does the United States Constitution. On the contrary, the California Constitution expressly states it does not provide greater protection. (Cal. Const., art. I, § 24 ["This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States."].)
IV
Equal Protection under the Law
Vehar contends the Act, as amended in 2006, violates his state and federal constitutional rights to equal protection under the law.
A
"The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The first prerequisite to an equal protection claim is "a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. " . . . [Citation.] [¶] Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.] [Citation.] The 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. [Citation.]" (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216-1217.)
"Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment. [Citations.]" (People v. Green (2000) 79 Cal.App.4th 921, 924.) Applying the strict scrutiny standard, the state has the burden of establishing it has a compelling interest that justifies the law and that the distinctions, or disparate treatment, made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21 Cal.4th 628, 641.) Alternatively stated, applying the strict scrutiny standard, a law "is upheld only if it is necessary to further a compelling state interest. [Citation.]" (People v. Buffington (1999) 74 Cal.App.4th 1149, 1156.)
B
Vehar asserts the Act, as amended, violates his constitutional rights to equal protection because SVPs under the Act are similarly situated to persons who are civilly committed or otherwise confined under other California laws, including mentally disordered offenders (MDOs) under Penal Code section 2960 et seq.; persons found not guilty be reason of insanity (NGIs) under Penal Code section 1026 et seq.; and other persons who, because of a mental disorder, pose a danger of inflicting physical harm on others (LPSs) under section 5300 et seq. He argues that, despite their similar situation, SVPs under the Act, as amended, are treated differently from those other groups and that disparate treatment is not necessary to further any compelling state interest. That disparate treatment includes civil commitment for an indeterminate term (in contrast to required periodic recommitment hearings for the other groups) and section 6608s placement of the burden on an SVP to prove he or she is no longer an SVP and is entitled to release.
In McKee, we addressed, and rejected, a similar equal protection argument made regarding disparate treatment of SVPs compared to MDOs and NGIs. (McKee, supra, 2008 D.A.R. at pp. 3880-3882.) We incorporate our reasoning in McKee and apply it to Vehars appeal to reach the same conclusion that the Act, as amended in 2006, does not violate his federal and state constitutional rights to equal protection under the law. Assuming arguendo that SVPs are similarly situated to MDOs, NGIs, and LPSs and are disparately treated, we nevertheless conclude that disparate treatment is necessary to further compelling state interests. In McKee, we stated:
"[T]here is a compelling state interest in committing an SVP to an indeterminate term. The People argue SVPs are treated differently (i.e., given an indeterminate term of civil commitment) because they are less likely to be cured, more likely to reoffend, and therefore more dangerous. As the California Supreme Court noted, the Act, on its original enactment, narrowly target[ed]" a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.) [¶] Thereafter, on passage of Proposition 83, the voters information pamphlet for Proposition 83 noted: 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. (Historical and Statutory Notes, 47A Wests Ann. Pen. Code (2008 supp.) foll. § 209, p. 462; see Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) Also, as we noted in People v. Shields, supra, 155 Cal.App.4th 559, the voters in passing Proposition 83 in 2006 intended to enhance the confinement of SVPs. (Shields, at p. 563.) In Shields, we stated: Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the persons SVP condition to warrant release . . . . (Shields, at p. 564.) The change to an indeterminate term also was intended to reduce the costs of SVP evaluations and court testimony. (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1287.) Regarding the pre-Proposition 83 version of the Act, the California Supreme Court stated: The problem targeted by the Act is acute, and the state interests—protection of the public and mental health treatment—are compelling. (Hubbart, supra, 19 Cal.4th at p. 1153, fn. 20, italics added.) Based on the evidence of the voters intent in passing Proposition 83, we conclude that the changes made to the Act by Proposition 83, including changing the civil commitment from two years to an indeterminate term, were necessary to further compelling state interests. Therefore, the disparate treatment between SVPs under the amended Act and MDOs does not violate McKees federal constitutional right to equal protection under the law." (McKee, supra, 2008 D.A.R. at p. 3881.)
Although McKee addressed only the contention that an SVPs indeterminate term under the amended Act was unconstitutional disparate treatment, we apply the same reasoning regarding the Acts disparate treatment of SVPs by imposing on them the burden to prove their entitlement to release at section 6608 hearings. Also, although the McKee language quoted above expressly applied only to our discussion of disparate treatment of SVPs compared to MDOs, we discern no reason why that language should not also apply to Vehars assertion that SVPs are unconstitutionally treated differently from NGIs and LPSs. California " 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 [state] power. [Citation.]" (People v. Hubbart, supra, 88 Cal.App.4th at p. 1217, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.) Because, as we discussed in McKee, California voters in passing Proposition 83 implicitly found SVPs are the least likely to be cured, and most likely to reoffend and prey on the most innocent members of our society, those voters reasonably concluded SVPs should be subject to indeterminate terms (subject to subsequent hearings on petitions for release at which they may bear the burden to prove by a preponderance of the evidence that they are no longer SVPs and are entitled to release). We conclude the disparate treatment of SVPs under the amended Act is necessary to further those compelling state interests as discussed in McKee. The Act, as amended in 2006, does not violate Vehars state and federal constitutional rights to equal protection under the law.
The cases cited by Vehar are inapposite and do not persuade us to conclude otherwise. (See, e.g., Baxstrom v. Herold (1966) 383 U.S. 107; Humphrey v. Cady (1972) 405 U.S. 504; Jackson v. Indiana (1972) 406 U.S. 715; In Re Moye (1978) 22 Cal.3d 457.)
V
Jurisdiction and Retroactivity
Vehar contends the trial court erred in committing him to the custody of the DMH for an indeterminate term under the Act, as amended in 2006, because the court did not have jurisdiction over the commitment proceeding or, if had jurisdiction, its imposition of an indeterminate term constituted an improper retroactive application of the amended Act. He argues the court did not have jurisdiction to impose an indeterminate term because the petition, when filed, requested a two-year recommitment, but on enactment of the Legislatures amendments to the Act on September 20, 2006, the amended Act no longer authorized or provided for recommitment proceedings. Therefore, Vehar argues that because the court did not have jurisdiction to conduct a recommitment proceeding, he should be immediately released or, at most, committed for a two-year period as provided for under the Act prior to its 2006 amendments.
Alternatively, he makes the related argument that the Act, as amended in 2006, cannot be applied retroactively to him. Because his commitment under the pre-amendment version of the Act expired on April 26, 2006 (before the 2006 amendments of the Act), his new period of commitment could be, at most, a two-year period of recommitment as provided under the pre-amendment version of the Act. Therefore, he argues the trial court erred by imposing an indeterminate term of commitment pursuant to amended Act.
We rejected the jurisdiction argument in People v. Shields, supra, 155 Cal.App.4th at pages 562 to 564. Subsequently, other courts rejected both the jurisdiction and retroactivity arguments. (Bourquez v. Superior Court, supra, 156 Cal.App.4th at pp. 1283-1289; People v. Carroll (2007) 158 Cal.App.4th 503, 508-510, 512-515.) Because we agree with and adopt the reasoning set forth in those cases, rather than restating their reasoning, we incorporate the reasoning in Shields, Bourquez, and Carroll, and apply that reasoning to Vehars appeal to reach the same conclusions that the trial court had jurisdiction to conduct the trial and commit him for an indeterminate period under the Act, as amended in 2006, and that indeterminate commitment did not constitute a retroactive application of the amended Act. (Shields, at pp. 562-564; Bourquez, at pp. 1283-1289; Carroll, at pp. 508-510, 512-515.)
VI
Admission of Hearsay Evidence
Vehar contends the trial court abused its discretion by admitting hearsay evidence. He argues the court erred by allowing the Peoples expert witnesses to testify regarding the bases for their opinions, which included hearsay evidence.
A
Before trial, the People moved in limine for admission of all reliable evidence reasonably relied on by the experts. The trial court granted that motion, stating: "[T]he experts can testify as to what they relied upon in forming their opinions. And you get a cautionary instruction on that, a limiting instruction[,] . . . something along the lines of, this particular evidence is admitted for the limited purpose only to review by the appropriate mental health professionals to form an opinion in the case. Thats the sole purpose of that [evidence]."
Vehar cites 17 excerpts from the reporters transcript, but does not quote, or describe the substance of, the purported inadmissible hearsay evidence set forth in each excerpt. Those excerpts are from the testimonies of clinical psychologists Thomas MacSpeiden and Mary Jane Alumbaugh, both of whom evaluated Vehar, reviewed his records and concluded he suffered from pedophilia and was likely to engage in sexually violent predatory behavior if released. Vehar also asserts he sufficiently objected to admission of that hearsay evidence, but the trial court overruled his objection. The record shows that Vehars counsel objected when MacSpeiden began to testify regarding the facts of prior charges against Vehar. The trial court overruled the objection and instructed the jury that MacSpeidens testimony was admitted for the limited purpose of describing the basis for his expert opinion and could not be used for the truth of the matter stated. Before jury deliberations, the court instructed the jury that in evaluating the believability of an expert witnesss testimony it should consider "the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate." The court also instructed: "The mental health experts testified in reaching their conclusions as expert witnesses. They considered statements made by [Vehar]. You may consider those statements only to evaluate the experts opinion. Do not consider those statements as proof that the information contained in the statements is true, unless you find that the statement qualifies as a statement of [Vehar] pursuant to Instruction 358 . . . ."
B
In reviewing a trial courts admission of expert witness testimony, we apply the abuse of discretion standard of review. (People v. Rowland (1992) 4 Cal.4th 238, 266.)
Evidence Code section 801 provides expert opinion testimony is admissible if its subject matter "is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," but that expert opinion testimony must be "[b]ased on matter . . . perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801.) Summarizing that statute, the California Supreme Court stated: "Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Therefore, "[s]o long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an experts opinion testimony. [Citations.]" (Ibid.) In SVP commitment cases, expert opinion testimony may be properly admitted on the likelihood that the person is an SVP and likely to reoffend. (People v. Ward (1999) 71 Cal.App.4th 368, 374.)
Evidence Code section 802 provides:
"A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. . . ."
Gardeley stated that "because Evidence Code section 802 allows an expert witness to state on direct examination the reasons for his opinion and the matter . . . upon which it is based, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at p. 618, italics added.) Although an expert witness may describe inadmissible matter that forms the basis for an opinion (ibid.), that expert witness presumably may not testify as to the details of that matter if it is otherwise inadmissible. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525.)
"A trial court . . . has discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein. [Citation.] This is because a witnesss on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into independent proof of any fact. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at p. 619.)
Evidence Code section 1200, subdivision (b), sets forth the general rule excluding hearsay evidence: "Except as provided by law, hearsay evidence is inadmissible." "Hearsay evidence" is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) One statutory exception to the hearsay rule is section 6600, subdivision (a)(3), which provides: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the [DMH]." People v. Otto (2001) 26 Cal.4th 200 stated that in SVP commitment cases "section 6600[, subdivision] (a)(3) . . . allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted." (Id. at p. 208.)
C
Vehar asserts the trial court abused its discretion by allowing the expert witnesses to testify regarding the facts of his predicate prior convictions, his criminal activity that did not qualify as predicate prior convictions, past statements he purportedly made to others, medical evidence to prove the petitions allegations, and records regarding his behavior and progress while in prison, the state hospital, and various treatment programs. Assuming arguendo, as Vehar asserts, that none of that testimony was admissible under section 6600, subdivision (a)(3), because that hearsay exception allows admission of only documentary evidence and/or because the parties stipulated to the fact of his predicate prior convictions, we nevertheless conclude the trial court did not abuse its discretion under Evidence Code section 802 by allowing the expert witnesses to testify on those matters because, in so doing, they described the bases for their expert opinions. As noted above, Evidence Code section 802 provides: "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based . . . ." Furthermore, as noted above, Gardeley concluded that Evidence Code section 802 allows an expert witness to describe the material that forms the basis of his or her opinion, even if that material is otherwise inadmissible. (People v. Gardeley, supra, 14 Cal.4th at p. 618.) In any event, the testimony by the expert witnesses that Vehar challenges as inadmissible hearsay was not, in fact, hearsay because it was not admitted for the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) As noted above, the trial court gave an instruction that the challenged expert witness testimony was admitted only for the limited purpose of evaluating the bases for the opinions stated by the expert witnesses and not for the truth of the matter stated therein. Because we presume the jury followed that limiting instruction, we reject Vehars assertion that the instruction was "pretty much pointless." We conclude Vehar has not carried his appellate burden to show the trial court abused its discretion by allowing the expert witnesses to testify regarding criminal allegations against him in 1979, his behavior in the state mental hospital and in prison, and the other matters he challenges. People v. Korsak, supra, 2 Cal.App.4th 1516 is inapposite and does not require a contrary conclusion in the circumstances of this case. An expert witness is not limited under Evidence Code section 802 to only describing the source of information, but also may describe the substance of that information to allow the jury to evaluate the basis for his or her expert opinion.
Before trial, the parties stipulated: "It is hereby stipulated between the parties that [Vehar] has been convicted of a sexually violent offense against two or more victims and received determinate sentences for the following crimes: 2 counts of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14 Years, in violation of Penal Code section 288(a), a felony, . . . in Superior Court Case No. CR75897, in 1985; and one count of Committing a Lewd and Lascivious Act Upon a Child Under the Age of 14 Years, in violation of Penal Code section 288(a), a felony, in the Superior Court . . . in case [No.] SCD103247, in 1994. It is further stipulated they were predatory relationships and there was substantial sexual conduct as defined by statute."
Vehar does not show that the expert witnesses could not reasonably rely on the challenged information. (Evid. Code, § 801, subd. (b).) In fact, in his reply brief he expressly concedes he does not challenge the reliability of that information.
We also reject Vehars assertion that the jury had no way to use that evidence other than for its truth. Rather, the jury could consider it solely for the limited purpose of evaluating the bases for the expert witnesses opinions and not for the truth of the matter stated. To the extent the jury may have considered its truth solely for the limited purpose of evaluating the basis for an expert witnesss opinion, it nevertheless was instructed it could not, and therefore presumably did not, consider that information for the truth of the matter stated in determining the ultimate facts in this case.
In any event, even had the trial court abused its discretion by allowing that testimony by the expert witnesses, we would nevertheless conclude Vehar has not carried his burden on appeal to show that in the circumstances of his case it is reasonably probable he would have obtained a more favorable verdict had that testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The order is affirmed.
We concur:
NARES, Acting P. J.
IRION, J.