Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 211255
Mihara, J.
Timothy Groux appeals from an order involuntarily committing him for an indeterminate term to the custody of the Department of Mental Health (Department) after the trial court found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Appellant contends that his commitment was illegal, because the trial court lacked jurisdiction to proceed when the Department failed to evaluate appellant pursuant to valid protocols. He also challenges the constitutionality of the SVPA, as amended in 2006, on due process, equal protection, ex post facto, and double jeopardy grounds. We reject these contentions and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The underlying facts are not relevant to the issues on appeal, because appellant challenges only the prefiling procedures and the constitutionality of the SVPA.
On February 11, 2008, the People filed a petition seeking to commit appellant as an SVP for an indeterminate term pursuant to the SVPA. At the probable cause hearing on March 21, 2008, the People submitted evaluations by Dr. Mark Scherrer and Dr. David Walsh and the abstract of judgment of appellant’s prior convictions for rape (Pen. Code, § 261.2) and oral copulation of a child under the age of 14 (Pen. Code, § 288a, subd. (c)). Appellant submitted the matter. The trial court found probable cause to believe that appellant met the requirements of section 6604 and set the matter for trial.
On August 22, 2008, appellant waived his trial rights and submitted on the petition. Defense counsel explained that appellant “doesn’t feel he has the skill set necessary to survive on his own on the outside. That he would like to have the support of the hospital at least in the near term.” However, appellant objected to the indeterminate term on due process, equal protection, ex post facto, and double jeopardy grounds. The trial court found appellant to be an SVP and committed him to an indeterminate term.
II. Discussion
A. Jurisdiction
Appellant contends that the trial court lacked jurisdiction to proceed, because the Department failed to evaluate him pursuant to valid protocols. We conclude that any prefiling errors did not deprive the court of jurisdiction, and appellant has failed to demonstrate prejudice.
1. Background
Section 6601, subdivision (b) provides that a person in the custody of the Department of Corrections, who may be an SVP, should be evaluated by the Department. Subdivision (c) of that same section requires the Department to evaluate any such prisoner “in accordance with a standardized assessment protocol, developed and updated by the [Department], to determine whether the person is a sexually violent predator as defined in this article. 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.”
Section 6601, subdivision (d) provides in relevant part: “Pursuant to subdivision (c), the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and practicing psychologist, designated by the Director of Mental Health.... If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for commitment under Section 6602 to the county designated in subdivision (i).”
The Department published the Clinical Evaluator Handbook and Standardized Assessment Protocol (2007) for the purpose of conducting the SVP evaluations prescribed under section 6601. The Office of Administrative Law (OAL) recently concluded that certain provisions of this handbook met the definition of a regulation and that these provisions should have been adopted pursuant to the Administrative Procedures Act (APA) (Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19, p. 13.) A regulation that is adopted in violation of the APA is invalid and is called an “underground regulation.” (Cal. Code Regs., tit. 1, § 250.) While an OAL determination is not binding on this court, it is entitled to deference. (Grier v. Kizer (1990) 219 Cal.App.3d 422, 431, disapproved on another ground in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.)
2. Legal Analysis
We now consider whether the trial court lacked jurisdiction to proceed, because the Department evaluated appellant pursuant to an underground regulation. “In its fundamental sense ‘jurisdiction’ refers to a court’s power over persons and subject matter. Less fundamentally, ‘jurisdiction’ refers to a court’s authority to act with respect to persons and subject matter within its power. Issues relating to jurisdiction in its fundamental sense indeed may be raised at any time. By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver (i.e., the intentional relinquishment of a known right) and forfeiture (i.e., the loss of a right through failure of timely assertion).” (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6, internal citations omitted.)
In People v. Medina (2009) 171 Cal.App.4th 805 (Medina), the defendant argued that the Department had failed to evaluate him pursuant to a valid protocol, and thus the trial court lacked jurisdiction to proceed. (Medina, at p. 811.) The Medina court reasoned that “the superior court was undoubtedly the appropriate court to hear the commitment petition (Welf. & Inst. Code, §§ 6602, 6604), and there is no claim of untimeliness. (See Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1171.)” (Medina, at p. 816.) Thus, the court concluded that the issue was whether “the court acted in excess of its jurisdiction, rather than without fundamental jurisdiction.” (Medina, at p. 816.) The court then held that the appellant forfeited his challenge to the procedures that occurred before the petition was filed, because he admitted the allegations in the petition. (Medina, at p. 817.)
In an analogous case, the court in In re Wright (2005) 128 Cal.App.4th 663 (Wright) reached the same conclusion regarding the trial court’s jurisdiction. In Wright, the two initial evaluators did not agree on whether the defendant should be committed as an SVP. (Wright, at p. 667.) Pursuant to section 6601, subdivision (e), two “independent professionals” were then appointed. (Wright, at p. 667.) The Wright court assumed that one of these individuals did not meet the criteria of section 6601, subdivision (g), which required that he have a doctoral degree in psychology. (Wright, at p. 672.) The court next discussed the effect of the error. (Wright, at pp. 672-675.) The Wright court noted that the SVPA does not require that the evaluations be alleged or appended to the petition, and the People are not required to prove their existence at either the probable cause hearing or at trial. (Wright, at p. 672.) The court then considered “whether [the defendant] was deprived of due process in the instant situation where one of two evaluations supporting a petition was defective, but a trial court found probable cause to proceed to trial on the petition and the individual was committed after receiving a trial on the merits.” (Wright, at p. 673.)
The Wright court began its analysis by discussing the trial court’s jurisdiction. “Illegalities in pretrial commitment proceedings that are not ‘jurisdictional in the fundamental sense,’ are not reversible error per se on an appeal from the subsequent trial. Rather, the ‘defendant [must] show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.’ (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) Lack of fundamental jurisdiction means an entire absence of power to hear or determine the case, such as a lack of the subject matter or the parties. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) This type of fundamental jurisdictional error can be raised at any time, including for the first time on appeal. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) [¶] Irregularities in the preliminary hearing under the Act are not jurisdictional in the fundamental sense and are similarly subject to harmless error review. (People v. Talhelm [2000] 85 Cal.App.4th [400], 405.) Thus, reversal is not necessary unless the individual can show that he or she was denied a fair trial or had otherwise suffered prejudice. (Ibid.)” (Wright, supra, 128 Cal.App.4th at p. 673.)
For the reasons outlined in Medina and Wright, here, the error did not deprive the trial court of jurisdiction in the fundamental sense. Appellant, however, has failed to demonstrate prejudice. He has not established that the content of the evaluations was deficient or that the evaluators would not have found him to meet the criteria of an SVP if the protocol had been adopted pursuant to the APA. Accordingly, we reject his claim.
Relying on People v. Dominguez (2008) 166 Cal.App.4th 858 (Dominguez), appellant argues that the reasoning of Wright is flawed. He argues that “[s]ome pretrial commitment errors are fundamental to the court’s jurisdiction.” Appellant’s reliance on Dominguez is misplaced. In Dominguez, this court observed that the failure to file an information deprives the trial court of jurisdiction. (Dominguez, at p 865.) However, this court held that the trial court had jurisdiction to proceed in Dominguez, because the parties had stipulated that the complaint could be deemed the information. (Dominguez, at pp. 865-866.) Thus, Dominguez is factually distinguishable from the present case. We also note that the failure to file an information is far more significant than the Department’s failure to adopt the standardized assessment protocol as a regulation.
Appellant has next cited to the second issue raised in Dominguez, supra, 166 Cal.App.4th at p. 870 to support his position that “some pretrial commitment errors are fundamental to the court’s jurisdiction.” In Dominguez, this court accepted the People’s concession of error that the defendant had been deprived of due process when the trial court instructed the jury that it could convict the defendant of an offense that was not shown by the evidence at the preliminary hearing. (Dominguez, at p. 866.) The defendant argued that the error was structural and thus reversible per se (Dominguez, at p. 867), while the People countered that the error was harmless, because the verdict indicated that the jury found the defendant guilty under a proper theory. (Dominguez, at pp. 868-869.) This court did not resolve the issue, concluding that either analysis required reversal of the judgment. (Dominguez, at p. 870.) Since this court did not discuss the trial court’s jurisdiction in considering this issue, Dominguez does not assist appellant.
The California Supreme Court has granted review on constitutional challenges to the SVPA, as amended in 2006, in the following cases: People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823; People v. Riffey (2008) 163 Cal.App.4th 474, review granted August 20, 2008, S164711; People v. Johnson (2008) 162 Cal.App.4th 1263, review granted August 13, 2008, S164388; People v. Boyle (2008) 164 Cal.App.4th 1266, review granted October 1, 2008, S166167; and People v. Garcia (2008) 165 Cal.App.4th 1120 review granted October 16, 2008, S166682.
1. Statutory Background
When the SVPA was enacted, it provided for a two-year civil commitment for individuals who were found to be SVPs beyond a reasonable doubt after a trial. (People v. Williams (2003) 31 Cal.4th 757, 764.) The two-year commitment could then be extended after a trial in which the prosecutor carried the same burden of proof. (Former §§ 6604, 6604.1, 6605, subds. (d), (e).)
On November 7, 2006, the voters enacted Proposition 83. This initiative went into effect the following day, and it amended the SVPA to extend the commitment term from two years to indeterminate. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 137.)
Under the amended SVPA, when a court or jury determines beyond a reasonable doubt that a person is an SVP, “the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement....” (§ 6604.) The committed person then “shall have a current examination of his or her mental condition made at least once every year. The annual report 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.” (§ 6605, subd. (a).) The Department must file this report with the court and serve it on both parties. (Ibid.) The committed person may retain an expert to examine him or her or have one appointed by the court if the person is indigent. (Ibid.) This expert shall have access to the committed person’s records. (Ibid.)
Section 6600, subd. (a)(1) defines an SVP as “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.”
When the Department determines that the committed person is no longer an SVP, it authorizes him or her to file a petition for conditional release or unconditional discharge. (§ 6605, subd. (b).) After the court receives a petition for conditional release or unconditional discharge, it must order a show cause hearing. (Ibid.) “If the court at the show cause hearing determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed 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, then the court shall set a hearing on the issue.” (§ 6605, subd. (c).) Each party has the right to experts and a jury at this hearing, and the committed person is “entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” (§ 6605, subd. (d).) The state bears the burden of proving 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.” (Ibid.)
Even if the Department does not authorize a petition, a committed person may petition for conditional release or unconditional discharge under section 6608. In bringing this petition, the committed person is entitled to the assistance of counsel. (§ 6608, subd. (a).) The court may summarily deny this petition if it determines that the petition is frivolous. (Ibid.) When the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is no longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) If the trial court finds 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... for one year.” (§ 6608, subd. (d).) After one year, the trial court shall hold a second hearing to determine if the committed person should be unconditionally released. (Ibid.) If the trial court denies the petition, the committed person must wait one year to file another petition. (§ 6608, subd. (h).) After a section 6608 petition has been denied, either as frivolous or after a hearing, the trial court shall deny any subsequent petitions under section 6608 “unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted.” (§ 6608, subd. (a).)
2. Due Process
Appellant challenges his indeterminate commitment under the SVPA, as amended by Proposition 83, on due process grounds. He argues that the SVPA “provides insufficient means of ensuring release of people who are no longer dangerous due to their mental conditions,” because it fails to provide mandatory periodic hearings and improperly places the burden of proof on him to prove that he is no longer an SVP.
In evaluating a due process claim, the United States Supreme Court has set forth a three-factor test. “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]” (Mathews v. Eldridge (1976) 424 U.S. 319, 335 (Mathews).) The court has applied this test to involuntary civil commitments. (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington).)
Here, the private interest is the loss of liberty. “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]” (Addington, supra, 441 U.S. at p. 425.) However, the state may restrict this interest in appropriate circumstances. (Kansas v. Hendricks (1997) 521 U.S. 346, 356 (Hendricks).)
We first note that the initial commitment hearing satisfies federal due process requirements. At this hearing, the SVPA requires the prosecutor to prove beyond a reasonable doubt that a person meets the definition of an SVP, that is, that he or she has been convicted of a sexually violent offense and has a diagnosed mental disorder that makes the person a danger to others. Appellant has no quarrel with the procedures governing this hearing. He focuses on the risk that a committed person will continue to be involuntarily committed even though he or she is no longer mentally ill and a danger to others. He argues that the lack of periodic judicial review and the shifting of the burden of proof from the state to the committed person greatly increase this risk.
Nothing in the SVPA affects the trier of fact’s finding regarding the qualifying offense at the initial commitment hearing. Since this finding remains valid during the annual reviews or future proceedings, it does not increase the risk of an improper commitment. Turning to the committed person’s mental disorder and dangerousness, one can reasonably infer that this condition will continue for an undetermined period of time. (See Jones v. United States (1983) 463 U.S. 354, 368 [“And because it is impossible to predict how long it will take for any given individual to recover—or indeed whether he will ever recover—Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review for the patient’s suitability for release.”].) At issue in the present case is whether the review procedures are adequate to ensure that the committed person is held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)
Contrary to appellant’s claim, the lack of periodic judicial review does not create an undue risk of erroneous deprivation of a committed person’s liberty interest. The SVPA requires an annual review of the committed person’s mental health status, which is then forwarded to the court and the prosecutor. The committed person is also entitled to an evaluation by an independent expert. When the committed person no longer meets the definition of an SVP, the Director of Mental Health is required to authorize him or her to file a petition for conditional release or unconditional discharge. Since the goal of the mental health system is to treat mentally ill patients so that they may function as healthy individuals in the community, we can infer that medical professionals and the Director of Mental Health are not biased against committed persons or their release. Moreover, the frequency of the medical reviews reduces the risk that the committed person will be confined longer than is necessary. Balanced against these considerations, the value of judicial review every two years is slight. As the United States Supreme Court has noted, “ ‘neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.’ ” (Parham v. J.R. (1979) 442 U.S. 584, 607, quoting In re Roger S. (1977) 19 Cal.3d 921, 942 (Clark, J., dissenting).)
We next consider whether there is a risk of an erroneous determination under the SVPA provisions regarding the burden of proof. When the Department has not authorized the filing of a petition, the committed person, who is entitled to the assistance of counsel, may file a petition for release. If the trial court determines that the petition is frivolous, there is no risk of an erroneous determination. In cases where the court holds a hearing on the petition, the committed person has the burden of proof to show that he or she is no longer an SVP based on a preponderance of evidence. (§ 6608, subd. (i).) Under these circumstances, the lack of evidence rather than the burden of proof will make it difficult for the committed person to prevail. For this reason, the value in shifting the burden of proof to the prosecutor would be slight. Thus, placing the burden of proof on the committed person at this hearing creates little risk of an erroneous deprivation of his or her liberty.
Turning now to the state’s interest, we find that the state has a substantial interest in providing treatment to individuals who suffer from mental illness and in protecting the public from individuals whose mental illness makes them a danger to others. (Addington, supra, 441 U.S. at p. 426.) The state also has a substantial interest in preserving its resources by avoiding the unnecessary relitigation of cases. (See United States v. Wattleton (11th Cir. 2002) 296 F.3d 1184, 1200-1201.)
After applying the balancing test set forth in Mathews, supra, 424 U.S. 319, we conclude that the present statutory scheme has sufficient safeguards to protect the individual’s liberty interest while providing for the state’s significant interests.
3. Equal Protection
Appellant next contends that the amended SVPA violates the equal protection clauses of the federal and state Constitutions, because it makes it more difficult for SVPs to be released compared to those committed pursuant to other civil commitment schemes such as mentally disorder offenders (MDO) (Pen. Code, § 2960 et seq.), those found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.), and those committed under the Lanterman-Petris-Short Act (LPSA) (§ 5350). We conclude that appellant has failed to show that SVPs are similarly situated to these other groups.
Both the federal and state Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley), internal citations and quotation marks omitted.) We review a claim of disparate treatment in civil commitment under the strict scrutiny standard, that is, the state must show the distinctions drawn by the law are necessary to further a compelling state interest. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217.)
Though both SVPs and MDOs are involuntarily committed for treatment, they are not similarly situated for purposes of the law challenged. An SVP is committed for treatment, in part, based on the danger that he or she will engage in sexually violent criminal behavior while an MDO is committed for treatment, in part, based on the substantial danger he or she will physically harm others. Thus, the dangers posed by SVPs and MDOs to the community are different. More importantly, however, “the MDO law targets persons with severe mental disorders that may be kept in remission with treatment (Pen. Code, § 2962, subd. (a)), whereas the SVPA targets persons with mental disorders that may never be successfully treated (Welf. & Inst. Code, § 6606, subd. (b)).” (People v. Hubbart, supra, 88 Cal.App.4th at p. 1222.) As the People point out, the voters who passed Proposition 83 “recognized that SVPs stand apart from other civil committees in their likelihood of reoffense and resistance to treatment.” In an uncodified statement accompanying Proposition 83, the voters declared: “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,... Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b), p. 127.) This distinction is critical, and explains why SVPs and MDOs are not similarly situated for purposes of how long they should be confined and treated, or how they obtain judicial review of their commitments.
Appellant has also failed to show that NGI patients are similarly situated to SVPs for purposes of how long they should be confined or the type of judicial review to which they are entitled. NGI patients, who suffer from various mental disorders, have been acquitted of a wide variety of both violent and nonviolent crimes. After his or her acquittal, no evidentiary hearing is held to determine if the NGI patient is still insane and the NGI patient is automatically committed. In the NGI scheme, the treatment and prospects for recovery vary greatly, and the NGI patient’s mental disorder does not predispose him or her to commit a particular type of crime in the future. (Pen. Code, §§ 1026, 1026.5.) Thus, an NGI patient can petition for release once his or her sanity has been restored. Yet even if an NGI patient immediately petitions for release, his or her hearing cannot be held until the NGI patient has been confined for at least 180 days. (See Pen. Code, § 1026.2, subds. (a), (d).) “In contrast, the SVPA 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.’ (Stats. 1995, ch. 763, § 1, p. 5921.)” (Cooley, supra, 29 Cal.4th at p. 253.) SVPs have a mental disorder “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).) Thus, SVPs generally require long-term treatment. Consequently, before an SVP can be committed, a trier of fact must find beyond a reasonable doubt that the person meets the requirements of the SVPA. Since the NGI statutory scheme applies to a broader and more diverse category of individuals than the SVPA, the two schemes are not similarly situated for equal protection purposes with regard to the length of confinement and treatment and the release procedures.
Similarly, those committed under the LPSA are not similarly situated to SVPs. Persons who are committed under the LPSA include individuals who have not committed any crime, but pose some degree of danger to themselves or others. (§ 5300.5, subd. (b).) In contrast to SVPs, these committees do not necessarily pose a specific risk of sexually violent predatory behavior.
Even assuming that SVPs, MDOs, NGI patients, and LPSA committees are similarly situated for equal protection purposes, the disparate treatment of SVPs meets the strict scrutiny standard. Before the SVPA was amended, the California Supreme Court recognized that the SVPA “narrowly targets ‘a small but extremely dangerous group’ of sexually violent predators....” (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 the voters enacted Proposition 83, they were informed that mentally ill sex offenders are “the least likely to be cured” and have a “very high recidivism rate.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(b), p. 127.) Based on these circumstances, the confinement of SVPs until they are no longer mentally ill and dangerous, and the placement of the burden on the SVP to demonstrate those facts serves the compelling state interests of public protection and mental health treatment.
4. Ex Post Facto and Double Jeopardy
Appellant next argues that the amendments to the SVPA render it punitive, and thus his indeterminate commitment violates state and federal constitutional prohibitions against ex post facto laws.
Both the federal and state Constitutions prohibit ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) Thus, those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts” are unconstitutional. (Collins v. Youngblood (1990) 497 U.S. 37, 43.) The ex post facto clause applies exclusively to penal statutes, and if a commitment statue does not impose punishment, it does not implicate ex post facto protection. (Hendricks, supra, 521 U.S. at pp. 370-371.) We use the same analysis in considering claims arising under the federal and state ex post facto clauses. (People v. Helms (1997) 15 Cal.4th 608, 614.)
In determining whether a proceeding is civil or criminal, we must first ascertain the intent of the voters who enacted Proposition 83. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901.) Appellant focuses on the Official Voter Information Guide as indicative of the voters’ intent to punish SVPs. The guide states: “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.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 31, p. 138.) He also cites language in the argument in favor of Proposition 83, such as, “Proposition 83... will protect out children by keeping child molesters in prison longer” and “means predatory sex criminals will be punished and serve their full sentence in every case,” as indicative of the voters’ punitive intent. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), argument in favor of Prop. 83, p. 46, italics omitted.) In addition, he points out that Proposition 83 requires approval by two-thirds of the membership of each house or by a statute that has been approved by the voters. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 33, p. 138.)
However, other language in Proposition 83 demonstrates that the voters distinguished between those provisions that involved criminal penalties for sexual offenders and those that amended the SVPA. It stated that “[e]xisting laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2(h), p. 127, italics added.) Thus, the voters expressed their intent that the SVPA, as amended by Proposition 83, would strengthen and improve the laws that relate to the commitment and control of SVPs. The SVPA, in turn, provides treatment, not punishment, for SVPs.
Regardless of the voters’ stated intent, a reviewing court may reject it “where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate the [State’s] intention’ to deem it ‘civil,’ [Citation].” (Hendricks, supra, 521 U.S. at p. 361.) Appellant asserts that the SVPA is punitive in effect, because an SVP may be committed for an indeterminate, rather than two-year, term, and the SVP is required to prove he or she no longer meets the requirements for commitment.
In determining whether a commitment is civil or criminal, this court must consider “whether the duration of confinement is ‘linked to the stated purposes of the commitment, namely, to hold the person until his or her mental abnormality no longer causes him to be a threat to others.’ ” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1176, quoting Hendricks, supra, 521 U.S. at p. 363.) Appellant acknowledges that the California Supreme Court held that the former SVPA did not violate the ex post facto clause. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177.) The Hubbart court stated that “each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again proves, beyond a reasonable doubt, that the person is dangerous and mentally impaired. [Citation.] Although committed for two years, the SVP is entitled each year to a new mental examination and to judicial review of the commitment to determine whether his condition has changed such that he no longer poses a danger to the health and safety of others.” (Ibid.) Here, however, the amendments to the SVPA have not altered the potential length of an SVP’s commitment period, which remains dependent on the successful treatment of the SVP’s mental disorder.
Appellant argues that the statutory scheme upheld in Hendricks is distinguishable from that at issue in the present case. He asserts that “[t]he statutory scheme upheld in Hendricks did not require a criminal conviction as a prerequisite for a commitment. (Hendricks, supra, 521 U.S. at p. 362 [‘An absence of the necessary criminal responsibility suggests that the State is not seeking retribution for a past misdeed.’].)” However, as the Hendricks court also noted “the fact that the Act may be ‘tied to criminal activity’ is ‘insufficient to render the statut[e] punitive.’ ” (Hendricks, supra, 521 U.S. at p. 362, quoting United States v. Ursery (1996) 518 U.S. 267.)
Here, though the commitment to a state hospital involves an affirmative restraint, it has not historically been regarded as punishment. As the court explained in Hendricks, “ ‘the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.’ The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. The Court has, in fact, cited the confinement of ‘mentally unstable individuals who present a danger to the public’ as a classic example of nonpunitive detention.” (Hendricks, supra, 521 U.S. at p. 363, internal citations omitted.)
In Hendricks, the court also recognized that “unlike a criminal statute, no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a ‘mental abnormality’ or ‘personality disorder’ rather than on one’s criminal intent.” (Hendricks, supra, 521 U.S. at p. 362.) The same standard holds true of the SVPA, which bases a commitment determination on the diagnosis of a “mental disorder.” (§ 6600, subds. (a)(1), (c).)
The Hendricks court further observed that the absence of a scienter requirement “is evidence that confinement under the statute is not intended to be retributive. [¶] Nor can it be said that the legislature intended the Act to function as a deterrent. Those person committed under the Act are, by definition, suffering from a [diagnosed mental disorder] that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement.” (Hendricks, supra, 521 U.S. at pp. 362-363.) Here, there is nothing in the amended provisions that would function more as a deterrent than the provisions of the former SVPA did.
We next note that the SVPA does not apply to criminal behavior. It applies to a mental condition that may lead to criminal behavior if the person is not confined and treated. The purpose for the confinement is to provide treatment and protection for the public. This purpose was not transmuted into a punitive one with the change of the commitment term from two years to an indeterminate term. “Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.” (Hendricks, supra, 521 U.S. at p. 363.) Since the SVPA continues to provide a means to obtain release once a committed person no longer meets the definition of an SVP, the confinement cannot be deemed excessive treatment.
We also note that “[w]here the State has ‘disavowed any punitive intent’; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted release upon a showing that the individual is no longer dangerous or mentally impaired,” the United States Supreme Court has found no punitive intent. (Hendricks, supra, 521 U.S. at pp. 368-369.) Based on these considerations, we conclude that the amended SVPA is not punitive, and thus appellant’s ex post facto claim fails.
Appellant also contends that the amended SVPA violates the prohibitions against double jeopardy. A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Hendricks, supra, 521 U.S. at p. 369.) Accordingly, since we have found that the amended SVPA is not punitive in nature, appellant’s double jeopardy contention also has no merit.
III. Disposition
The order is affirmed.
WE CONCUR: Premo, Acting P. J. Elia, J.