Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell, Judge, Super.Ct.No. FSBSS029072
Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Following a jury’s finding that defendant was a sexually violent predator (Welf. & Inst. Code, § 6600 et seq.), the trial court granted the People’s motion to commit defendant for an indefinite term, and did so. Defendant appeals, bringing a number of constitutional challenges to the Sexual Violent Predator Act (hereinafter, the SVPA). We reject his contentions and affirm.
All future references are to the Welfare and Institutions Code unless otherwise indicated.
The facts surrounding defendant’s crimes are irrelevant to this appeal.
I.
Issues and Discussion
1. Overview of Applicable Laws
Before 2006, the SVPA provided for the involuntary civil commitment for a two-year term of confinement and treatment of a person whom a jury had determined, beyond a reasonable doubt, was a Sexually Violent Predator (hereinafter SVP), i.e., someone who has committed violent sexual offenses against multiple victims and is likely to engage in sexually violent behavior in the future due to a diagnosed mental disorder. (§ 6601, subd. (b); former §§ 6603, 6604, subd. (d).) A commitment could not be extended beyond the two-year period without the filing of a new petition and a new jury determining beyond a reasonable doubt that the patient was currently an SVP. (Former §§ 6604, 6604.1, 6605, subds. (d) & (e).)
An SVP must 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).) An SVP must have committed a predatory sexually violent offense, i.e., the victim is “‘a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.’ [Citation.]” (People v. Hurtado (2002) 28 Cal.4th 1179, 1182, 1186-1187.)
In 2006, the SVPA was amended to replace the two-year term with an indeterminate term. (People v. Shields (2007) 155 Cal.App.4th 559, 562-563 (Shields).) However, section 6605, subdivision (a) continues to require a current examination of a patient at least once a year and a report on whether he or she remains an SVP and whether conditional release to a less restrictive alternative or an unconditional release is in the best interests of the patient and conditions can be imposed that would adequately protect the community. (Shields, supra, at pp. 562-563.) Copies of the report must be filed with the trial court and served on the patient and the People. (Ibid.) If the patient wishes, he or she may be examined by an independent expert who is either retained by the patient or appointed by the court. (§ 6605, subd. (a).) If the Department of Mental Health (hereinafter, Mental Health) determines, as a result of the examination, that the patient is no longer an SVP, or that conditional release is in the patient’s best interests and can be crafted in such a way to protect the public, it must authorize the patient to file a petition for judicial review. (§ 6605, subd. (b).) If the court finds probable cause for release, the patient is entitled to a de novo trial on his or her current status as a SVP. (§ 6605, subds. (b) & (c).) At that trial, the People have the burden of proving beyond a reasonable doubt that the patient is an SVP. (§ 6605, subd. (d).) If the People meet that burden, the patient is again committed for an indeterminate term—if not, the patient must be unconditionally released. (§ 6605, subd. (e).)
Additionally, if Mental Health has reason to believe that a patient is no longer an SVP, it must seek judicial review of his or her commitment by way of a petition for a writ of habeas corpus. (§ 6605, subd. (f).) If the court determines that the patient is no longer an SVP, the patient must be unconditionally released. (Ibid.)
In addition, if Mental Health determines that the patient’s mental condition has changed so that it is not likely he or she will commit predatory sexual violence while under treatment and supervision in the community, the director must forward a copy of the report to the patient’s attorney and the court that committed the patient. (§ 6607, subd. (a).) The court must then set a hearing, at which the patient has the burden of proof by a preponderance of the evidence. (§§ 6607, subd. (b), 6608, subd. (i).)
As before the 2006 amendments, a patient, who has been confined for at least one year, may also petition for either conditional or unconditional release, without the recommendation or concurrence of the director of Mental Health. (§ 6608, subds. (a) & (c).) The patient has the right to the assistance of counsel in doing so. (§ 6608, subd. (a).) The court may deny the petition without a hearing if the patient previously filed a petition without the concurrence of Mental Health and the court finds that the petition is frivolous or fails to show a change in the patient’s condition. (§ 6608, subd. (a).) If the petition contains facts showing a change and is not frivolous, the court must hold a hearing to determine if it is likely that the patient will engage in sexually violent criminal behavior due to a diagnosed mental disorder if under supervision and treatment in the community. (§ 6608, subd. (d).) The burden of proof by a preponderance is on the patient. (§ 6608, subd. (i).) If the court concludes the patient should be conditionally released, it is ordered for one year, and a subsequent hearing is held to determine if unconditional release is appropriate. (§ 6608, subd. (d).) A patient who is denied unconditional release may be placed on outpatient status. (§ 6608, subd. (g).)
This burden existed before the amendments to the SVPA with which defendant takes issue.
The relevant amendments to the SVPA were designed to eliminate the existing automatic review of cases where there was no evidence of change in the status of the patient. (See Shields, supra, 155 Cal.App.4th at p. 564.)
2. Equal Protection
Defendant points out that “[t]he M[entally ]D[isordered ]O[ffender] (hereinafter, MDO) commitment scheme provides for an annual re-commitment proceeding at which the state must prove beyond a reasonable doubt that a detainee continues to meet the MDO commitment criteria. [Citation.] A detainee may demand a trial by jury. [¶] The N[ot ]G[uilty by] [Reason of] I[nsanity] (herein, NGI) scheme is almost identical. While the statute allows civil detainees to be held initially for a term equivalent to that for the criminal offense they committed, once the initial term has expired, the commitment must be renewed every two years. [Citation.] At recommitment proceedings, the detainee is entitled to a jury trial and the state must prove its case beyond a reasonable doubt.” Defendant claims that the differences in treatment of MDOs, NGIs and SVPs violates equal protection.
An MDO is one who has “an illness or disease or condition that substantially impairs the person’s thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely.” (Pen. Code, § 2962, subd. (a).) An MDO must have committed: (A) Voluntary manslaughter; (B) Mayhem; (C) Kidnapping in violation of [Penal Code] Section 207; (D) Any robbery wherein it was charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of [Penal Code] Section 12022, in the commission of that robbery; (E) Carjacking, as defined in subdivision (a) of [Penal Code] Section 215, if it is charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of [Penal Code] Section 12022, in the commission of the carjacking; (F) Rape, as defined in paragraph (2) or (6) of subdivision (a) of [Penal Code] Section 261 or paragraph (1) or (4) of subdivision (a) of [Penal Code] Section 262; (G) Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (H) Oral Copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (I) Lewd acts on a child under the age of 14 years in violation of [Penal Code] Section 288; (J) Continuous sexual abuse in violation of [Penal Code] Section 288.5; (K) The offense described in subdivision (a) of [Penal Code] Section 289 where the act was accomplished against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (L) Arson in violation of subdivision (a) of [Penal Code] Section 451, or arson in violation of any other provision of [Penal Code] Section 451 or in violation of [Penal Code] Section 455 where the act posed a substantial danger of physical harm to others; (M) Any felony in which the defendant used a firearm which use was charged and proved as provided in [Penal Code] Section[s] 12022.5, 12022.53, or 12022.55; (N) A violation of [Penal Code] Section 12308; (O) Attempted murder; (P) A crime not enumerated in subparagraphs (A) to (O), inclusive, in which the prisoner used force or violence, or caused serious bodily injury as defined in paragraph (4) of subdivision (f) of [Penal Code] Section 243; (Q) A crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force of violence would be used. For purposes of this subparagraph, substantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury.” (Pen. Code, § 2962, subd. (e).)
“The constitutional guaranty of equal protection of the laws means . . . that persons similarly situated with respect to the purpose of the law must be similarly treated under the law.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155, italics added.) Defendant contends that SVPs, MDOs and NGIs are similarly situated because the laws governing them are to protect the public from those that are both mentally ill and potentially violent and there is substantial overlap between the commitment schemes, especially MDOs and SVPs. However, while MDOs and SVPs may be similarly situated for purposes of the laws defining the mental disorder necessary to detain them, they are not similarly situated for purposes of the laws relating to treatment. (Id. at p. 1156.) Defendant does not assert how SVPs are similarly situated to MDOs and NGIs for purposes of the laws governing the length of their commitments and how and under what conditions judicial review of their commitments can be obtained. In fact, “the MDO law targets persons with severe mental disorders that may be kept in remission with treatment [citation], whereas the SVPA targets people with mental disorders that may never be successfully treated. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) Additionally, the initiative measure that in part provided the 2006 amendments to the SVPA stated that “[s]ex offenders have very high recidivism rates. . . . [They] are the least likely to be cured and the most likely to reoffend . . . .” (Historical and Statutory Notes, 47C West’s Ann. Pen. Code) foll. § 209, p. 52.) Indeed, the SVPA “narrowly targets a ‘small but extremely dangerous group of [persons]’ [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) No particular crime is required for NGIs, nor need they have a mental illness that predisposes them to commit particular crimes in the future. An NGI may have a mental illness that is of short duration and/or one that is not likely to reoccur. SVPs, on the other hand, require long term treatment (Westerheide v. State (Fla. 2002) 831 So.2d 93, 112) which is often not successful. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127; People v. Hubbart, supra, 88 Cal.App.4th at p. 1222.) While MDOs must have committed certain criminal acts, they need not have a mental illness that caused them to commit their crimes—their mental illness need only have been an aggravating factor in the commission of their crimes. (Pen. Code, § 2962, subds. (b) & (e).) MDOs can have a mental illness that is readily treated with medication, so that the risk to the community is minimal so long as they are medication compliant. SVP’s, on the other hand, because they commit predatory sexually violent crimes, pose a much greater threat to the public. (People v. Hurtado, supra, 28 Cal.4th at pp. 1187-1188.) NGIs are committed without an evidentiary hearing to determine if they are still insane at the time of their commitment. An SVP must pose a danger of future risk of reoffending. (§ 6600, subd. (a)(1).) Even upon demand by an NGI, he or she cannot obtain a hearing after commitment for 180 days. (Pen. Code, § 1026.2, subd. (d).) In contrast, an SVP cannot be committed without a finding beyond a reasonable doubt that he or she is an SVP. SVPs pose the threat of future sexually violent criminal behavior—MDOs of future physical harm. Therefore, defendant has not carried his burden of showing that SVPs, MDOs and NGIs are similarly situated. (See People v. Hubbart, supra, 88 Cal.App.4th at p. 1216.)
See footnote 2, ante, at page 2.
3. Due Process
“Due process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S.Ct. 2593].) We must consider the private interest that is affected by the state action, the risk of an erroneous deprivation of the interest through procedures used and the probable value, if any, of additional or other procedural safeguards, and the state’s interest and the burdens that additional or other procedural requirements would create. (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S.Ct. 893].) Here, the private interest is the deprivation of liberty, which requires due process, but is not absolute. (Jones v. United States (1983) 463 U.S. 354, 361 [103 S.Ct. 3043] (Jones); Kansas v. Hendricks (1997) 521 U.S. 346, 356 [117 S.Ct. 2072].) The state has a strong interest in protecting society from persons who are dangerous to others because of a mental disease and is, therefore, able to involuntarily commit such persons. (Id. at p. 363.) It also has a legitimate interest in avoiding the unnecessary relitigation of issues. (United States v. Wattleton (2002) 296 F.3d 1184, 1200, 1201 (Wattleton).)
Defendant contends the shifting of the burden of proof from the People to the patient under the 2006 amendments to the SVPA runs afoul of the federal requirement that the People have the burden of proof by clear and convincing evidence and the state requirement of proof beyond a reasonable doubt in order to civilly commit a person and is in conflict with the holding of the United States Supreme Court in Foucha v. Louisiana (1992) 504 U.S. 71 (Foucha) and Addington v. Texas (1979) 441 U.S. 418 (Addington). We disagree.
As to the burdens for civil commitment, it must be remembered that the stricter standard of proof beyond a reasonable doubt was imposed on the People during the initial determination of defendant’s status as an SVP. None of the cases defendant cites holds that this determination must be made at particular intervals in the future. Additionally, as we have already pointed out, the SVPA, after its 2006 amendments, requires at least annual reviews of the patient’s status and provides for a petitioning procedure for the patient without the concurrence of Mental Health. When Mental Health has authorized a petition, the patient’s burden of proof is small, i.e., to show probable cause to believe that his or her 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. (§ 6605, subd. (c).) From that point on, the burden of proof beyond a reasonable doubt rests with the People. (§ 6605, subd. (d).) For patients petitioning without the concurrence of Mental Health, the burden is, of course, greater, but the success of such a petition is dependent more on the existence of facts supporting the necessary change in his or her mental status rather than the method by which the patient must demonstrate it. There is nothing improper in giving preclusive effect to the original finding that a patient is an SVP (see Jones, supra, 463 U.S. 354), absent proof of change in his or her condition. Additionally, it is not unreasonable to place the burden upon the patient, who may be uniquely in a position to know when his or her status has changed.
A statutory scheme that does not provide for automatic judicial review of the status of patients, but does provide for regular evaluations by staff doctors was upheld against due process challenges in Hickey v. Morris (9th Cir. 1983) 722 F.2d 543, 549; United States v. Phelps (9th Cir. 1992) 955 F.2d 1258, 1267, 1268; United States v. Wallace (1988) 845 F.2d 1471, 1474, 1475; United States v. Weed (10th Cir. 2004) 389 F.3d 1060, 1070; United States v. Wattleton (11th Cir. 2002) 296 F.3d 1184, 1201, 1202; United States v. LaFromboise (8th Cir. 1988) 836 F.2d 1149, 1152.
In Foucha, the defendant was retained at his metal hospital because the psychiatrists who examined him could not certify that he would not be a danger to himself or others due to an untreatable personality defect, however, he did not have a mental illness. (Foucha, supra, 504 U.S. at pp. 74-75.) Thus, defendant did not carry his burden of showing that he was not dangerous, despite not having a mental illness. The United States Supreme Court declared this burden to be a violation of due process because a state may not continue to confine a person unless it shows by clear and convincing evidence that that person is currently mentally ill and dangerous. (Id. at pp. 77, 80.) The Court added, “Under the state statute, [defendant] is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on [defendant] to prove that he is not dangerous. [The evidence at the hearing comprised] . . . a refusal to certify that [defendant] would not be dangerous.” (Id. at pp. 81-82.) Defendant here claims the amended SVPA is “effectively identical” to the scheme condemned in Foucha. We disagree. Foucha held that dangerousness alone does not justify continuation of commitment for a defendant who is not mentally ill. It also recognized the distinction made in Jones between civil commitments and NGI proceedings, recognizing that a determination that a defendant was mentally ill and dangerous at the time of his crime supported a current commitment. (Id. at p. 76.)
In Jones, the High Court upheld a law requiring an NGI defendant who sought release to prove by a preponderance of the evidence that he was no longer mentally ill or dangerous. (Id. at p. 370.) In People v. Sword (1994) 29 Cal.App.4th 614, 621, 624, this court upheld, against a due process challenge, placing the burden of proof by a preponderance on an NGI defendant in each part of restoration of sanity proceedings.
Addington, also cited by defendant, held that proof of clear and convincing evidence that the patient is currently mentally ill and hospitalization was necessary to protect the welfare of the patient and others was required for an initial civil involuntary commitment. (Addington, supra, 441 U.S. at pp. 419-422.) However, as the Foucha court noted, the requirements of Addington do not apply to those who violate the law. (Foucha, supra, 504 U.S. at p. 76.)
4. Differences in Treatment of Patients Mental Health Concludes Are Entitled to Conditional or Unconditional Release and Those Who Are Not
Defendant contends federal and state equal protection is violated because patients whom Mental Health concludes are not entitled to conditional or unconditional release do not receive jury trials, during which the People have the burden of proof, as do those Mental Health concludes are. Defendant merely asserts that because all SVPs meet the same criteria (that which qualifies them as SVPs) they are, therefore, similarly situated. We disagree. Those whom Mental Health concludes are entitled to release have been determined, by experts who are treating them, to be different for purposes of both their interests and the protection of the public to be not similarly situated.
Defendant asserts that the state has no conceivable legitimate interest for treating these two groups differently. However, the state has a legitimate interest in avoiding both unnecessary relitigation of issues (see Wattleton, supra, 296 F.3d 1184 at pp. 1200-1201) and the costs of evaluations and court procedures. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.) The absence of the right to jury trial and the shifting of the burden to patients who do not have Mental Health’s “stamp of approval” is a legitimate means of discouraging unnecessary relitigation by those for whom significant change in mental status has not occurred.
Defendant’s reliance on the Baxstrom v. Herold (1966) 383 U.S. 107, 114 fn. 5 [86 S.Ct. 764] (Baxstrom) is misplaced. Therein, a defendant who had been convicted of a crime and sentenced to prison was declared to be insane by a prison physician and transferred to a particular mental hospital run by the Department of Corrections which housed mentally ill prisoners. (Id. at p. 108.) He was afforded no hearing before this transfer. When the prison term he was serving expired, he was transferred to the Department of Mental Hygiene, but was kept in the same mental hospital. (Id. at pp. 108-109.) Again, this was done without a hearing. Subsequently, and while still in that hospital, he filed two petitions for writs of habeas corpus. (Id. at p. 109.) Based upon the testimony of a psychiatrist that defendant remained mentally ill, the first writ was dismissed. (Ibid.) In a second petition for writ of habeas corpus, defendant contended that he was sane and should be released, or, if he remained insane, he should be committed to a civil hospital. (Ibid.) At the hearing on the petition, the defendant was unable, due to the facts that he was confined and was indigent, to produce psychiatric testimony to rebut the testimony of the psychiatrist in the first writ petition. (Ibid.) The Supreme Court held that the defendant “was denied equal protection . . . by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York. [He] was further denied equal protection . . . by his civil commitment to an institution maintained by the Department of Corrections beyond the expiration of his prison term without a judicial determination that he is dangerously mentally ill such as that afforded to all so committed except those . . . nearing the expiration of a penal sentence.” (Id. at pp. 110-111, italics added.) In response to the argument that the state may treat the criminally insane differently than the civilly insane, the High Court held, “Classification of mentally ill persons as either insane or dangerously insane . . . has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.” (Id. at pp. 111-112.) Of course, this opinion preceded the declaration in Jones that the procedures for civil commitments may differ from those of criminal commitments. Moreover, the law in question treated differently those defendants who had been committed to a particular mental hospital for criminals. Finally, the procedures declaring a person to be a sexually violent predator have all the procedural safeguards accorded to every other mentally ill person.
The Baxstrom court went on, “The statutory procedure . . . denied [defendant] . . . equal protection in another respect as well. Under [it,] the judge need only satisfy himself that the person ‘may require care and treatment in an institution for the mentally ill.’ Having made such a finding, the decision whether to commit that person to a hospital maintained by the Department of Corrections or to a civil hospital is completely in the hands of administrative officials. [¶] In this case, the administrative decision to retain [defendant] in [the particular hospital to which he had been committed] was made before any hearing was afforded to [defendant] and was made despite the otherwise unanimous conclusion by testifying psychiatrists . . . that there was no reason why [defendant] could not be transferred to a civil institution. [¶] Except for persons committed to [the particular hospital where defendant was committed] upon expiration of sentence . . . all others civilly committed to hospitals maintained by the Department of Correction are committed only after judicial proceedings have been held in which it is determined that the person is so dangerously mentally ill that his presence in a civil hospital is dangerous to the safety of other patients . . . employees . . . or . . . the community.” (Id. at pp.112-113, fn. 3.) Although defendant uses this language while claiming it supports a condemnation of the power Mental Health has in determining which SVPs should be released, and, who therefore, have more procedural rights than those it does not, he misreads the narrow application of the language. The availability of conditional or unconditional release to all SVPs, regardless of the concurrence of Mental Health, ensures that the Department’s determination is not without review, unlike that in Baxstrom. Clearly, contrary to defendant’s contention, Baxstrom is not “squarely on point.”
II.
Disposition
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.