Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. MH100507, John S. Einhorn, Judge.
O'ROURKE, J.
Melvin Ward 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) under the amended Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq. (Act).) Ward contends the order must be reversed because: (1) the Act violates his state and Federal rights to equal protection — both by the requirement of an indeterminate commitment term, and its provision of different rights to those who seek judicial review of their continuing status as an SVP with the permission of the Director of Mental Health — as opposed to those who do not obtain such permission; and (2) the Act violates state and federal due process guarantees because those SVPs who "seek review of their commitment without the Director's permission are required to demonstrate by a preponderance of the evidence that they are not sexually violent predators." We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2006, the People filed a petition seeking to commit Melvin Ward for an indeterminate term as an SVP. The petition alleged Ward "was convicted of a sexually violent offense, and has a diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior." It was alleged that in March 2006 he was convicted of failure to register as a sex offender (Pen. Code, § 290, subd. (g)(2)), and that he was convicted of a sexual offense in the State of Montana in 1997.
On April 25, 2007, the court found there was probable cause to believe that Ward was an SVP. On September 14, 2007, a jury found he was an SVP and found true that he previously was convicted of a sexually violent offense. The court ordered him committed to the DMH for an indeterminate period.
DISCUSSION
I.
This court recently summarized Proposition 83's changes to the Act in People v. Shields (2007) 155 Cal.App.4th 559 (Shields.) We explained that under Proposition 83, "former section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement (subject to the SVP's right to petition for release)." (Shields, at p. 562.) Section 6604 of the Act now provides in relevant part: "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.) Proposition 83 did not change section 6604's requirement that a person's commitment as an SVP be proved at trial beyond a reasonable doubt. (§ 6604.)
"The statements of intent contained in Proposition 83 confirm the obvious intent of the Legislature in amending section 6604. The Proposition expressly sets forth the intent to strengthen SVP confinement laws: ' "[E]xisting laws that provide for the commitment and control of sexually violent predators must be strengthened and improved. [¶] . . . [¶] It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders." ' [Citation.] More specifically, 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 person's 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." ' " (Shields, supra, 155 Cal.App.4th at p. 564, quoting Historical and Statutory Notes, 47A West's Ann. Pen. Code (2007 supp.) foll. § 209, p. 430 [now Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. § 209, p. 52] & Prop. 83, §§ 2(h), 2(k), 31.)
Ward contends the indeterminate commitment term in the amended Act violates state and federal guarantees of equal protection because defendants are treated differently from those offenders civilly committed under the mentally disordered offender (MDO) statute (Pen. Code, § 2960, et seq.) and the scheme for those found not guilty by reason of insanity (NGI). (Pen. Code, § 1026, et seq.) He also contends that there is "no compelling state interest in denying SVP detainees access to court in order to determine whether they remain dangerous while granting it to MDO detainees." These arguments are presently before the California Supreme Court in People v. McKee (2008) 160 Cal.App.4th 1517 (review granted July 9, 2008, S162823).
"The initial inquiry in any equal protection analysis is whether persons are 'similarly situated for purposes of the law challenged.' " (In re Lemanuel C. (2007) 41 Cal.4th 33, 47; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley).) The question is whether the state has adopted a classification that affects similarly situated groups in an unequal manner. (Cooley, at p. 253.) "A statute does not violate equal protection when it recognizes real distinctions that are pertinent to the law's legitimate aims." (In re Marriage Cases (2008) 43 Cal.4th 757, 873.) Indeed, 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.' " (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.) "Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment." (People v. Green (2000) 79 Cal.App.4th 921, 924.) Under this 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; see also People v. Buffington (1999) 74 Cal.App.4th 1149, 1156.)
We need not reach Ward's arguments that SVPs are similarly situated with those committed under the MDO and NGI schemes, because even if we assume they are so situated for the sake of argument, we conclude California has shown a compelling interest in imposing an indeterminate commitment term for SVPs. Before the Proposition 83 amendments, the California Supreme Court observed that the SVP law "narrowly targets 'a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.' " (Cooley, supra, 29 Cal.4th at p. 253.) "The problem targeted by the Act is acute, and the state interests — protection of the public and mental health treatment — are compelling." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20.) When voters passed Proposition 83, they had before them the facts that sex offenders "prey on the most innocent members of our society"; that such offenders "have very high recidivism rates" and are the "least likely to be cured and the most likely to reoffend." (Historical and Statutory Notes, 47C West's Ann. Pen. Code (2008 ed.) foll. § 209, p. 52; see Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)
Ward does not address these concerns. He maintains, "Mental illness is an ill-understood and changing thing" and because many persons committed under the MDO scheme would also qualify as SVPs, there is no rational basis for subjecting SVPs to indefinite treatment. This conclusion appears to be based on the premise, for which we find no support in the cited authority (People v. Hurtado (2002) 28 Cal.4th 1179, 1186), that the "MDO scheme . . . address[es] a broader range of potential dangerousness than does the SVP scheme . . . ." Nor do we agree that the circumstances in Baxtrom v. Herold (1966) 383 U.S. 107 are apposite. In Baxtrom, the court found an equal protection violation when the state deprived a prisoner of a jury trial and finding of dangerousness when it sought to civilly commit him at the end of his prison term, in view of the fact these protections were available to other civilly-committed persons. (Baxtrom, 383 U.S. at p. 111; see In re Smith (2008) 42 Cal.4th 1251, 1264.) The amended Act, however, does not deprive persons subject to an initial commitment petition of a jury trial or finding of present inability to control sexually violent behavior. (§ 6604.) Further, under the amended Act, an SVP committed to an indeterminate term has the opportunity for meaningful judicial review via annual petitions for release, provided they are not frivolous and are supported by sufficient factual allegations. (§§ 6605, 6608.)
We conclude the characteristics of dangerousness and amenability to treatment recognized by the Proposition 83 voters justify any disparate treatment of SVPs from those civilly committed under the MDO and NGI schemes. The voters intended to enhance the confinement of SVPs, eliminating automatic SVP trials every two years when there is nothing to suggest a change in the person's condition to warrant release. (Shields, supra, 155 Cal.App.4th at pp. 563-564.) These voters reasonably concluded based on the above-referenced considerations that SVPs should be committed to indeterminate terms, subject to 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. Because imposition of an indeterminate term for SVPs under the amended Act has been shown necessary to further compelling state interests, the amended Act does not violate Ward's state and federal constitutional rights to equal protection under the law.
Ward contends "The [Act] violates both federal and state guarantees of equal protection on its face because it places a defendant's due process rights in the hands of the Director of Mental Health." Specifically, Ward contends that under section 6608 of the Act, defendants "who seek judicial review of their status without the [blessing of the Director of Mental Health] have substantially less due process protection. They are not entitled to a jury trial and, what's worse, must shoulder the burden of proof themselves and demonstrate that they are no longer sexually violent predators by a preponderance of the evidence."
Section 6608 applies to those SVPs who seek "conditional release or unconditional discharge without the recommendation or concurrence of the [DMH]." (subd. (a).) "In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence." (§ 6608, subd. (i).)
In contrast, section 6605 states that "If the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of [an SVP], or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that 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." (§ 6605, subd. (b).) Section 6605, subd. (d) states, "The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed person's 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."
Ward asserts that the "legitimate purpose of the law is to confine only those individuals who are both mentally ill and dangerous" and that "all SVP detainees meet the same basic criteria," such that "they are all similarly situated with respect to each other." However, the law's legitimate purpose is to confine only those individuals who are mentally ill and dangerous within the meaning of the Act; therefore, the two groups Ward identifies — i.e., SVPs who receive the Director's authorization to file a petition for conditional or unconditional release and those who do not — are not similarly situated for purposes of the Act.
The question is not whether the two groups are similarly situated for all purposes, but rather, whether they are similarly situated for purposes of the challenged law. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.)
Under section 6605, SVPs who receive the Director's authorization to file a petition for release receive such authorization only because the Department has concluded, based on the annual review, that they no longer meet the requirements of the SVPA, or that conditional release is appropriate, or because the Department otherwise "has reason to believe" that they are no longer SVPs. The mental health experts in the Department make these determinations based on diagnostic criteria set forth in the statute. There is thus reason to believe that individuals who receive the Director's authorization to file a petition are either no longer both mentally ill and dangerous, or are suitable for conditional release because they would not pose a danger while under supervision and treatment. On the other hand, SVPs who do not receive the Director's authorization to file a petition for release have not demonstrated a material change in their status with regard to mental illness or dangerousness since the time of their initial commitments.
The Legislature reasonably authorized the Department to determine whether a person continues to meet the SVP criteria. The Department is required to provide programming "which shall afford [an SVP] with treatment for his or her diagnosed mental disorder" that is "consistent with current institutional standards for the treatment of sex offenders." (§ 6606, subds. (a) and (c).) The Department must develop a "structured treatment protocol" that "specif[ies] measures that will be used to assess treatment progress and changes with respect to the individual's risk of reoffense." (§ 6606, subd. (c).) The Department is required to conduct annual examinations of each SVP's mental condition in order to consider "whether the committed person currently meets the definition of a sexually violent predator." (§ 6605, subd. (a).) These provisions, in addition to the other gatekeeping functions assigned to the Department's mental health experts ensure that only those persons who meet the SVP criteria are initially committed under the Act, are consistent with the significance attached to medical professionals' expertise in this area, and that reliance is reasonable and necessary to fulfill the statute's goals.
For example, inmates who the Director of Corrections refers for evaluation as to whether a petition should be filed pursuant to the SVPA are evaluated by the Department, or, more specifically, "by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health." (§ 6601, subd. (d).) The evaluation is to be conducted "in accordance with a standardized assessment protocol developed and updated by the [Department]. . . . The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) Only in a situation in which one, but not both, of the initial two evaluators concludes that the person meets the SVP criteria are two independent professionals selected examine the individual. (§ 6601, subd. (e).)
If, as Ward contends, the purpose of the law is "to confine only those who are both mentally ill and dangerous" within the meaning of the Act, then those individuals who have demonstrated to mental health experts that they no longer meet the criteria under the Act are not similarly situated to individuals who demonstrate to mental health experts that they remain mentally ill and dangerous within the meaning of the Act.
II.
Ward contends his indeterminate commitment under the amended Act violates his Fourteenth Amendment right to due process and his right to due process under the California constitution. Specifically, Ward complains that the statute requires that he bear the burden to prove his right to release by a preponderance of the evidence at any release hearing based on a petition not authorized by the Director. He maintains that due process requires that the state carry the burden of proof in all commitment proceedings, including a proceeding to continue his detention as an SVP.
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." (Addington v. Texas (1979) 441 U.S. 418, 425.) "Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed." (Foucha v. Louisiana (1992) 504 U.S. 71, 79 (Foucha).)
For an initial civil commitment, due process requires that the state prove by clear and convincing evidence both that the person is mentally ill and that the commitment is required for his or her own welfare or for the protection of others. (Kansas v. Hendricks (1997) 521 U.S. 346, 358; Addington, supra, 441 U.S. at pp. 426 427, 432 433.) Once the person has been committed, due process permits the state to hold the person only as long as he or she is both mentally ill and dangerous, but no longer. (Foucha, supra, 504 U.S. at pp. 71-78 (Foucha) [continuing to hold dangerous person who is no longer mentally ill violates due process]; Jones v. United States (1983) 463 U.S. 354, 368, 370 (Jones) ["acquittee is entitled to release when he has recovered his sanity or is no longer dangerous"].)
According to Ward, the Act improperly places the burden on him to prove that he should be released, rather than placing the burden of proof on the state to prove that he is still an SVP. Ward bases his argument primarily on Foucha, supra, 504 U.S. 71. In Foucha, the United States Supreme Court considered the constitutionality of a Louisiana statute that provided for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were determined to be dangerous, but not mentally ill. The trial court had determined that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis, and the state was "not claim[ing] that Foucha is now mentally ill." (Id. at p. 75, 80.) The court found that "a law like Louisiana's, which permits the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others," violated the Due Process clause. (Foucha, supra, 504 U.S. at p. 83.)
Foucha prohibits the continued confinement of insanity acquittees who are no longer mentally ill, particularly in a situation in which the state has not proven, by clear and convincing evidence, that the individual poses a danger to the community. Foucha does not address the burden of proof that would apply at future release hearings, after the state had already established beyond a reasonable doubt that the individual is mentally ill and poses a danger, and thus does not support appellant's due process challenge to section 6608's provision that places the burden on him to prove by a preponderance of the evidence that he is entitled to release because he no longer meets the SVP criteria.
In Jones, supra, 463 U.S. at pages 357, 366-368, the insanity acquittee bore the burden of proving, by a preponderance of the evidence, that he was no longer mentally ill or dangerous. The Jones court observed, "The statute provides several ways of obtaining release. Within 50 days of commitment the acquittee is entitled to a judicial hearing to determine his eligibility for release, at which he has the burden of proving by a preponderance of the evidence that he is no longer mentally ill or dangerous. [Citation]. If he fails to meet this burden at the 50-day hearing, the committed acquittee subsequently may be released, with court approval, upon certification of his recovery by the hospital chief of service. [Citation.] Alternatively, the acquittee is entitled to a judicial hearing every six months at which he may establish by a preponderance of the evidence that he is entitled to release." (Jones, supra, 463 U.S. at pp. 356-357, fn. omitted.) The Jones court thus implicitly approved a review procedure similar to the one at issue here.
The initial commitment hearing under the amended Act provides a significant level of due process protection by requiring a finding beyond a reasonable doubt that the individual meets the SVP criteria. The required periodic reviews of a committed individual's mental health status and the procedures that permit these individuals to petition for release minimize the risk of an erroneous deprivation of liberty. We conclude that requiring Ward to bear the burden to prove his right to release, by a preponderance of the evidence, at a hearing on any subsequent petition for release filed without the Director's authorization, does not violate Ward's constitutional right to due process.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. NARES, J.