P. v. Olvera

Filed 8/26/08 P. v. Olvera CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant challenges his commitment as a sexually violent predator (SVP) to the Department of Mental Health (DMH) for an indeterminate term. We affirm.

Background

On June 6, 2005, before appellant's commitment expiration date of August 28, 2005, the People filed a petition to extend appellant's SVP commitment, pursuant to the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6604 et seq.,[1] until August 28, 2007. The petition included two clinical evaluations dated April 23, 2005, and March 2, 2005, in which psychologists concluded that appellant met the criteria as a sexually violent predator.

On July 20, 2005, appellant appeared with counsel, waived time and waived his presence at the probable cause hearing, and requested that he be transported back to Atascadero State Hospital. On October 5, 2005, the court held a probable cause hearing. Counsel submitted the matter on the doctors' reports and the court found that there was probable cause for continued detention. On March 20, 2006, defense counsel filed a motion to continue the trial date. On May 15, 2006, defense counsel filed a motion to dismiss the petition. The motion argued that "the appropriate findings were not made at the hearing on probable cause" and that "there was insufficient evidence that the respondent was convicted of [Welfare and Institutions Code section] 6600, et. seq. qualifying priors." On June 22, 2006, with appellant present, the parties stipulated to the court holding a new probable cause hearing "with the further understanding that that does not amount to the pending petition being dismissed." On July 20, 2006, the court held another probable cause hearing. After hearing testimony and argument, the court found probable cause for continued detention.

At the conclusion of appellant's second probable cause hearing, the parties discussed the setting of a date for trial. The prosecutor suggested that appellant should waive time. Defense counsel said, "I don't think it's required." The court addressed appellant saying, "But you understand, Mr. Olvera, that you're past the commitment date point? But you've agreed to that up to this point? . . . The commitments are only two years in length." Appellant answered, "Yes. I'm aware that it expired. I know about that." The matter was continued to August 24, 2006, for trial setting. On that date, the mater was set for pre-trial conference on October 19, 2006, and November 13, 2006, for jury trial.

The Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVPs. (See Stats. 2006, ch. 337,  55, 56, 62, pp. 2180-2182.) In the November 2006 general election, voters approved Proposition 83, which also provided for indeterminate terms of commitment for SVPs and went into effect on November 8, 2006. (Prop. 83,  27, 28; see Cal. Const., art. II,  10, subd. (a).) Appellant's jury trial on the petition commenced November 13, 2006.

The evidence at trial showed that in 1983 appellant was convicted of two counts of committing a lewd act on a child in violation of Penal Code section 288. In 1984, appellant was convicted of the same offense. Dr. Christopher North testified that appellant suffered from pedophilia, was sexually attracted to prepubescent females, and had a personality disorder with antisocial and paranoid features. He said that appellant's disorder was not in remission, that "sexual disorders tend to be chronic life long disorders," and that appellant was "just as dangerous now as he was when he went into the hospital." Dr. North acknowledged that, during two periods of parole, appellant had not had any incidents that involved touching children. Dr. Shoba Sreenivasan testified that appellant had a sexual interest in prepubescent children. She considered him to be in a high risk category for re-offending. Other witnesses testified to incidents between appellant and children when he worked as a school nurse and on occasions when he photographed young people.

Dr. Theodore Donaldson testified that appellant did not fit the criteria for a sexually violent predator. He did not think that appellant could be diagnosed as a pedophile. He distinguished a child molester from a pedophile and said that "Very few child molesters actually have a preference for children; that's why most of the times it's just opportunistic." As for whether appellant had serious difficulty controlling his behavior, Dr. Donaldson testified that because appellant "hasn't acted on it in 23 years, so there would be absolutely no way to conclude that he has any degree of impairment in his ability to control behavior."

Appellant testified that he was 51 years old and had served two years in the Army and two years in the Air Force Reserve. He held an "Associate of Biblical Studies degree" that he had obtained while incarcerated. He had worked as a free lance photographer and some of his photographs had appeared in local publications. He said that even at the time of his convictions in 1983, he "didn't have fantasies or urges to have sexual conduct with kids." He testified that he had been depressed about a failed relationship with a woman that he had wanted to marry, he had been unemployed and drinking a lot, and had committed "crimes of opportunity" as a result of "anger and frustration." He denied having any current sexual urges toward or fantasies about children.

Closing arguments focused for the most part on the qualifications of the expert witnesses and the reasonableness of their conclusions.

On November 20, 2006, the jury found that appellant was an SVP. After the jurors were excused, the trial court advised appellant of his right to appeal and then said, "And the other thing I need to do is just go ahead and commit Mr. Olvera to the State Department of Mental Health for at this time point it would be an indeterminate commitment." Defense counsel said, "I don't believe that's the case, Your Honor. . . . There was not an amended petition in this matter. It was a petition for two years. I don't think that has changed; there's been no amendment prior to trial. I submit the petition governs the Court's ability to sentence, absent any amendment." The trial court gave the parties the opportunity to brief the issue of the length of the SVP commitment.

On November 21, 2006, the People filed a request that appellant's commitment be deemed indeterminate. Citing the recent changes in SVP law, the People argued that "Because respondent was given a full and fair trial at which he was motivated to fully litigate the allegation that he was an SVP, there is nothing fundamentally unfair about the prospective application of SB 1128 to his case." In appellant's opposition, he argued that "petitioner is bound by the terms of his pleadings on file in the within matter and can not seek to pray for new and different relief once the matter has proceeded to jury trial on the previous petition." He argued that "the lack of amendment of the pleadings impeded the Respondent's interest in being informed of the nature, grounds, and consequences of the SVP proceeding."

On December 15, 2006, the court heard argument on the People's motion. Defense counsel argued that "it would be a due process violation" to impose an indeterminate commitment "in that at no time was the petition alleged from any other period other than two years." Counsel argued, "I can tell the Court that perhaps had this been a petition for an indeterminate term, that this may have been different. I can only secondguess myself and say perhaps I would have tried the case differently." The court said that all of appellant's "due process and procedural rights" were protected and that defense counsel must have known that, because of the change in the law, there was "a very strong possibility, if not probability that the new indeterminate commitment would be might be imposed." The court committed appellant to the Department of Mental Health for an indeterminate commitment.

Discussion[2]

The SVPA

The SVPA, 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.) A person's 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.) 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).)

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).) Under the SVPA, 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) (2002) 27 Cal.4th 888, 922.) The SVPA 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 SVPA "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 defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)

Pursuant to the amendments described above, 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 SVP's right to petition for release). [Citations.]" (People v. Shields (2007) 155 Cal.App.4th 559, 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 6604's requirement that a person's 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).)

The 2006 amendments added new provisions to section 6605 regarding the DMH's obligations: "(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 person's 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.)

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 court's 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 person's 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, 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 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." If the court or jury finds in the committed person's 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 DMH's 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 treatment 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 person's 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).)

Because in 2006 the Legislature and California voters amended section 6604 to make an SVP's 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.)

Jurisdiction

Appellant contends, "The trial court lacked jurisdiction to extend appellant's commitment." As described above, prior to the 2006 amendment of section 6604, an SVP was committed to a two-year term, and the People were required to obtain a new order determining the person to be an SVP for each successive two-year commitment. In 2006, 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, supra, 155 Cal.App.4th at p. 562.) The SVP statute, as amended in 2006, does not contain an express statutory provision authorizing recommitment of a person previously committed to a two-year term of confinement as an SVP. ( 6601, subd. (a)(2), 6604, 6604.1.) Appellant argues, "The trial court's jurisdiction to extend appellant's commitment was derived solely from sections 6604 and 6604.1. In SB 1128, the Legislature deleted all provisions relating to the extension of SVP commitments after the two-year term had expired. In doing so, the Legislature deprived the court of jurisdiction to conduct hearings on petitions to extend commitments and to order that appellant's commitment be extended." Appellant acknowledges that two cases, Shields, supra, and Bourquez v. Superior Court, supra, "have held . . . contrary to appellant's position here. Appellant asserts that those cases are wrongly decided." The court in Shields stated that the clear intent of the 2006 statutory amendment was "to enhance-not restrict-confinement of persons determined to be SVPs." (Shields, supra, 155 Cal.App.4th at p. 563.) For the reasons stated in Shields, we reject appellant's assertion that the trial court did not have jurisdiction to commit him as an SVP.

Retroactivity

Appellant contends, "The trial court erred in applying the revisions to the SVPA retroactively to appellant's case." He argues, "Because the revisions to the statute were not in effect at the time the petition was filed, the trial court's application of the revised SVPA to appellant's case constituted an unlawful retroactive application of the statute."

Appellant acknowledges thatBourquez, supra, 156 Cal.App.4th at pages 1283-1289,and People v. Carroll (2007) 158 Cal.App.4th 503, 508-510, 512-515, hold "contrary to appellant's position on this issue." However, he argues, "In applying this analysis to appellant, it cannot be ignored that his previous commitment expired [as] of a year before the passage of Proposition 83. In effect, the delay in resolving his case resulted in a windfall to the prosecution, and his two-year exposure as of the date his commitment expired in August 2005 has grown to a life term." Appellant does not contend that he did not request or consent to the delays in his case in the trial court, and those delays do not undermine the analysis of the retroactivity issue in Bourquez and Carroll, which we follow here.

Due Process

Appellant contends that his commitment as an SVP violates due process.[3] "[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 [99 S.Ct. 1804].)

Appellant contends, "Appellant's indeterminate commitment under the revised act violates the due process clause of the Fourteenth Amendment because the revised statute fails to provide for mandatory periodic hearings on the issue of whether continued commitment is warranted." Appellant cites Foucha v. Louisiana (1992) 504 U.S. 71 (112 S.Ct. 1780). In Foucha, the court considered the constitutionality of a Louisiana statute providing for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were dangerous, but not mentally ill. The trial court found 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 that he was in "good shape" mentally. (Id. at p. 75.) There was further testimony that antisocial personality disorder is a "disorder for which there is no effective treatment." (Id. at p. 82.) The court struck down the law, concluding that it violated due process because the acquittee no longer met the dual constitutional prerequisites of dangerousness and mental illness.

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, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) Foucha also acknowledged its holding in Jones v. United States (1983) 463 U.S. 354 (103 S.Ct. 3043), 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. (Id., 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,supra, 504 U.S. at p. 79.) Because at appellant's SVP commitment trial his mental illness and dangerousness were proved beyond a reasonable doubt, Foucha does not support appellant's 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.

Appellant contends, "Appellant's indeterminate commitment under the revised statute violates the due process clause of the Fourteenth Amendment because the revised statute improperly placed the burden of proof on the appellant to prove he should be released." We read Foucha as prohibiting continued confinement of persons who are no longer mentally ill. Foucha does not specifically address the burden of proof required at future release hearings, and thus does not support appellant's due process challenge of section 6608's 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. 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 appellant currently is mentally ill and dangerous. We conclude that the SVPA, as amended in 2006, does not violate appellant's federal constitutional right to due process.

Appellant argues that "the indefinite commitment imposed under the revised SVPA improperly and irrationally presumes that once a person is diagnosed with a qualifying mental disorder that such disorder will continue indefinitely." He argues, "The revised SVPA creates an unacceptable risk that an SVP detainee who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process." Appellant cites Foucha and O'Connor v. Donaldson (1975) 422 U.S. 563 (95 S.Ct. 2486).

In O'Connor, the defendant, a former mental patient, brought an action for damages alleging that his involuntary civil commitment constituted a violation of his constitutional right to liberty. He had been civilly committed to confinement in a Florida state hospital, and held against his will for 15 years, on the ground he was suffering from paranoid schizophrenia. (O'Connor, supra, 422 U.S. at pp. 564-565.) He had received no treatment for his illness during confinement, and no claim was ever made that he posed a danger to society. The jury found he was neither dangerous to himself nor dangerous to others. (Id. at p. 573.) Upholding an award of damages, the O'Connor court held as a matter of due process that it was unconstitutional for a state to continue to confine a harmless, mentally ill person. The court said that "there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom." (Id. at p. 575.)

We consider the initial commitment hearing itself to provide a significant level of due process protection, requiring a finding beyond a reasonable doubt that appellant had qualifying criminal conduct and is both mentally ill and dangerous. The required periodic reviews of appellant's mental health status and the petition for release procedures minimize the risk of erroneous deprivation. This is sufficient to comport with due process.

Ex Post Facto and Double Jeopardy

Appellant contends, "Appellant's indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature and violates the ex post facto clause." Appellant further contends, "Appellant's indeterminate commitment violates the double jeopardy clause of the Fifth Amendment." Appellant argues, "[A]ppellant was already tried, convicted, and sentenced to state prison for his sexual offenses. Thus, any further punishment for these same offenses is a clear violation of the Double Jeopardy clause."

Appellant acknowledges that the United States Supreme Court has rejected such a challenge to both the Kansas Sexually Violent Predator Act and Alaska's sex offender registration law because these laws were civil, not criminal, and therefore not punitive. (Kansas v. Hendricks (1997) 521 U. S. 346, 361-363 [117 S.Ct. 2072], Smith v. Doe (2003) 538 U. S. 84, 101-102 [123 S.Ct. 1140].) Appellant argues, however, that the "punitive purpose of the indefinite commitment period in the revised California statute is evident from the scope of the reforms embodied in both SB 1128 and Proposition 83."

A commitment under the SVPA is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179 [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [110 S.Ct. 2715] [ex post facto clause prohibits only those laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts"].) The analysis in this case is not dependent on the term of civil commitment, but on the intent and effect of the statute authorizing it. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171.) Hubbart observed that, "the critical factor is whether the duration of confinement is '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.' [Citation.]" (Id. at p. 1176.)

Appellant argues that the broad scope of Senate Bill 1128, and subsequently Proposition 83, was intended to increase punishment of sexual offenders and, therefore, the SVPA has now become punitive in purpose. Any Penal Code amendments made by Senate Bill 1128 or Proposition 83 increasing the punishment for various sex offenses have little, if any, relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVPs. The indeterminate term under California's SVPA is "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." (Kansas v. Hendricks, supra, 521 U.S. at p. 363.) This is "a legitimate nonpunitive governmental objective and has been historically so regarded." (Ibid.) There is nothing in the legislative history that suggests Senate Bill 1128 or Proposition 83 were intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. Therefore, it violates neither the ex post facto clause nor the double jeopardy clause.

Equal Protection

Appellant contends, "Appellant's indeterminate commitment with limited judicial review of his custodial status violates the equal protection clause of the Fourteenth Amendment." He argues that similarly situated groups to SVPs include "those committed under Penal Code section 2960, et. seq., the Mentally Disordered Offender Act ('MDOA')" and "individuals committed to the custody of the Department of Mental Health because they were found not guilty of a crime by reason of insanity."

Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised here. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart, supra, 88 Cal.App.4th at pp. 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants are not similarly situated, thus no equal protection violation].) Additionally, the Ninth Circuit has held that California's statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir.2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].) We agree with the cited authority and reject appellant's equal protection claim.

Cruel and Unusual Punishment

Appellant contends, "Appellant's indeterminate commitment violates the prohibition against cruel and unusual punishment under the California Constitution and the Eight and Fourteenth Amendments to the federal Constitution." This is premised on the argument that an SVP commitment imposes criminal penalties. However, a commitment under the SVPA is not punitive in purpose or effect. (Hubbart v. Superior Court,supra, 19 Cal.4th at pp. 1175-1179; see also Kansas v. Hendricks, supra, 521 U.S. at pp. 362, 369 [confinement pursuant to similar Kansas Act not punitive].) Thus, constitutional proscriptions against cruel and unusual punishment do not apply. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.) Furthermore, an SVPA commitment is a civil commitment for treatment and the protection of society. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1171-1174; Kansas v. Hendricks, supra, 521 U.S. at pp. 361-363.) The civil commitment is not based on an individual's status as a sex offender. Conviction of an enumerated sexually violent offense "shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination." ( 6600, subd. (a)(3).) It must also be established that the person 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." (Ibid.) We conclude that the SVPA does not inflict cruel and/or unusual punishment based on an individual's status as a sex offender. Appellant was found eligible for commitment to the Department of Mental Health not simply because of his past predicate offenses, but because the jury found he suffered from a current mental disorder and was currently likely to reoffend as a predator. Thus, appellant's cruel and unusual punishment argument fails.[4]

First Amendment

Appellant contends, "The limitations placed on appellant's right to petition the court for release under the revised version of the SVPA violates his First Amendment right to petition the courts for redress of grievances." Although acknowledging that section 6608, subdivision (a) gives the SVP detainee the right to counsel when petitioning the court for release, appellant argues that the failure to include a provision for the appointment of a medical expert denies the detainee "the tools he needs to make the access meaningful." However, although section 6608 does not expressly provide for the appointment of an expert, section 6605, subdivision (a) requires the department to report on a committed SVP's mental condition annually. That statute also provides that "[t]he 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." (Ibid.) Thus, if the department concludes in its annual report that the committed person remains an SVP, that person can request the appointment of his or her own expert to review that determination. If the appointed expert concludes otherwise, then the expert's testimony could be used to support a petition for discharge under section 6608.

Appellant further argues, an "SVP detainee does not receive meaningful access to the courts when the State can perpetually incarcerate him without ever being required to prove during a hearing on the merits in court the necessity for the continued incarceration." The burden placed on SVPs to prove the allegations of their petition by a preponderance of evidence does not limit access to the courts in any way; this is the standard imposed in the majority of civil actions. Furthermore, a committed person always has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.)

Single Subject Rule

Appellant contends, "Proposition 83 violated the single subject rule applicable to ballot initiatives." Article II, section 8, subdivision (d), of the California Constitution provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

An initiative does not violate the single-subject requirement if all of its parts are reasonably germane to each other and to the general objective of the initiative. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157.) Proposition 83 addressed a number of civil and criminal statutes, all related to the punishment and control of sexual predators. The proposition (1) expanded the definition of specified sex offenses; (2) increased the penalties for certain sex offenses; (3) prohibited probation for listed sex offenses; (4) eliminated custody credits for some sex offenses; (5) extended the parole period for particular sex offenses; (6) required monitoring by global positioning satellites for registered sex offenders; (7) barred registered offenders from living within 2,000 feet of a school or park; and (8) made the changes discussed here to the SVPA. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83.) The initiative measure was known as "The Sexual Predator Punishment and Control Act: Jessica's Law." (Carroll, supra, 158 Cal.App.4th at p. 509, fn. 3; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006).) The stated purpose of Proposition 83 was to " 'strengthen and improve the laws that punish and control sexual offenders.' " (Bourquez, supra, 156 Cal.App.4th at p. 1282; see Historical and Statutory Notes, 73D West's Ann. Welf. & Inst. Code (2008 supp.) foll. 6604, p. 134; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006).) We believe that all of the component parts of Proposition 83 bear a reasonable relationship to this purpose.

Appellant argues, "Proposition 83 fails the above test because it combined too many disparate topics without a common purpose under a broad and amorphous theme of dealing with sex offenders. In this regard, the proposition included provisions modifying civil, criminal and regulatory matters." However, as the California Supreme Court has explained, "the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose." (Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140 which combined in single measure such disparate subjects as term and budgetary limitations and pension restrictions].) In addition, the rule does not require that the collateral parts of an initiative be equivalent, for example, all civil, all criminal, all substantive, or all procedural. Nor does it mandate that the collateral parts be tied directly in application, for example, found in a single statute or applicable in a single proceeding. The only requirement is that the provisions work together to further the initiative's stated purpose. (See, e.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 and Brosnahan v. Brown (1982) 32 Cal.3d 236, 247.)

The SVP component of Proposition 83 may be civil in nature, but it is not unrelated to the criminal justice purpose stated as the goal of the initiative. The necessary reasonable and common-sense relationship is present. Proposition 83 does not violate the single subject rule.[5]

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] At our request, this court has received further briefing from the parties on the applicability of People v. Johnson (2008) 162 Cal.App.4th 1263 (review granted Aug. 13, 2008, S164388). With considerable foresight, appellant has included a discussion of People v. Riffey (2008) 163 Cal.App.4th 474 (pet. rev. filed June 30, 2008). Many of the constitutional questions presented in this appeal are now pending before the California Supreme Court for review. (See People v. McKee (2008) 160 Cal.App.4th 1517 [review granted July 9, 2008, S162823].)

[3] In determining whether this controversy is ripe for review, we look to Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, in which our Supreme Court said, " '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.]" (Id. at p. 171, italics omitted, quoting Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 149.) Because appellant is, in effect, making a facial challenge to the provisions of section 6608, the further development of facts would not aid in deciding the issues. If this court were to delay consideration of appellant's constitutional challenges until a future section 6608 petition for release was denied, appellant would suffer undue hardship in the event his instant challenges were subsequently determined to be meritorious. We conclude that both factors supported this court's review of appellant's due process and equal protection constitutional contentions. We consider appellant's challenges here to be fit for judicial decision.

[4] Some current SVPs might be considered to have had a better chance of release if California had retained the indeterminate sentencing scheme for sexual offenses. (See, for example, In re Rodriguez (1975) 14 Cal.3d 639.)

[5] Appellant also contends, "Appellant suffered prejudice as the result of the above errors; if this court finds that the court had jurisdiction to extend appellant's commitment, the judgment should be modified to reflect a two-year commitment." Because we find no error, we do not reach this contention.