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P. v. Wolfenbarger

P. v. Wolfenbarger

P. v. Wolfenbarger

Filed 8/21/09 P. v. Wolfenbarger CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. MH002003)

A jury found defendant Jim Dean Wolfenbarger to be a Sexually Violent Predator (SVP). (Welf. & Inst. Code, 6600, et seq.; further unspecified section references are to this code.) The trial court committed him to the Department of Mental Health (Department) for an indeterminate term, and defendant timely appealed.

Defendant raises a number of legal contentions that have been rejected by other cases, some of which are now pending before the California Supreme Court. We reject each of his contentions and affirm the judgment.


Although defendant does not challenge the sufficiency of the evidence or raise evidentiary challenges as such, to provide context for his claims, we summarize the trial evidence.

Dr. Robert Owen, a psychologist specializing in SVP cases, testified that, based on a review of defendants records and his 2002 and 2008 interviews with defendant, defendant has a paraphilia not otherwise specified with sexual interest in nonconsenting persons and also alcohol abuse. Defendant was likely to reoffend.

Dr. Owens description of defendants criminal history was consistent with that of the other testifying doctors, as follows. In 1982, defendant used a knife to force a 34-year-old female taxi driver to a remote area, where he sodomized and raped her. The victim had hemorrhoids and reported that defendant was kind of turned on by sodomizing her when he learned it was painful. In 1987, less than two weeks after being released from prison, defendant tried to kidnap a 16-year-old girl. Less than a month after that kidnap attempt, defendant saw two children waiting at a bus stop and tried to pull them into his truck; the 10-year-old boy got away, but defendant managed to take the 6-year-old girl to an isolated area where he rubbed his penis against her vagina and made her fellate him until he ejaculated into her mouth.

Defendant had claimed to have undergone a religious conversion in 1996, but in Dr. Owens 2002 interview, defendant denied molesting the 6-year-old or trying to kidnap the 16-year-old, showing the conversion was a sham. In any event, there was no relationship between religious conversion and reoffense. Defendant admitted to Dr. Owen that while in prison for the 1982 rape he would masturbate while thinking about rape and child molestation, and that he became angry when released: He told Dr. Owen I wanted sex, thats how I was going to get it.

Dr. Jeremy Coles, another psychologist specializing in sex offenders, reviewed defendants records and had interviewed him three times. In his opinion, defendant had Paraphilia not otherwise specified with nonconsenting children and adults. Dr. Coles, like Dr. Owen, was of the opinion that defendant was likely to reoffend, and that religious conversion did not affect recidivism rates.

Defendant testified the 1982 rape was during a blackout induced by alcohol. He also had been drinking when he tried to kidnap and sexually assault the 16-year-old. He was drunk when he grabbed the 6-year-old girl, but claimed he never tried to kidnap the 10-year-old boy. He claimed he thought the 6-year-old girl was in high school when he kidnapped her, but once he reached a secluded spot realized she was younger. Although he had no sexual feelings towards children, This crime was basically me masturbating. I tried to close my eyes and tried to picture her as an adult, you know, even tried to have her say adult things, which didnt work. The whole thing was really unappealing, but it was basically masturbation. At the end I did have her orally copulate me. I remember it was basically an attempt to keep evidence from getting all over.

Dr. Beryl Davis is also a psychologist specializing in sex offenders. She, too, reviewed defendants records and interviewed him. She had reviewed his relapse prevention plan and thought it was very good, and defendant was sincere in his commitment to implementing it. She, too, opined that religion will not prevent a reoffense, but testified it can provide part of a support system that will help prevent reoffense. She conceded that the Static-99 risk-assessment tool that had been used by Drs. Owen and Cole showed defendant was at high-risk for reoffense, but testified that current research has cast doubt on the accuracy of that tool. She did not believe paraphilia not otherwise specified was a valid or useful diagnosis, it was a wastebasket diagnosis that was controversial. She did not believe defendant was likely to reoffend.

Dr. Raymond Anderson, a psychologist who had specialized for over 40 years in sex offenders, assessed defendant in 2006 and had met with him briefly during this trial. He did not believe the Static-99 risk assessment tool was appropriate for use with SVPs because it was a poor predictor of recidivism and had been created with stale and flawed data. He also believed the paraphilia not otherwise specified diagnosis was largely meaningless, and was controversial, and even though Dr. Anderson did believe there is a narrower preferential rape disorder, defendant did not suffer from it. He opined that defendants risk of reoffense was very low, more likely on the lesser side than on the greater side of three percent. He thought defendants relapse prevention plan was very impressive and contained all the components in it that would be necessary for defendant to rejoin society.

Dr. Jay Adams is a psychologist with training and expertise in sex offenders. She testified defendants relapse prevention plan was of high quality and [reflected] a lot of [soul] searching. She did not agree with the paraphilia diagnosis because rape paraphilia is a very specific condition that involves repetitive, highly organized or ritualized crimes. She did not think defendant was likely to reoffend.

Three Jehovahs Witnesses testified, including defendants mother and a cousin, to the effect that defendant had a place to live and the congregation would provide support for him as part of his relapse prevention plan. Defendant testified about that plan and stated he would not reoffend because he has taken responsibility for his devastating acts[.]


I. Instructional Error Claim

Defendant contends the trial court should have instructed the jury that in order to find him an SVP, it had to find he had a substantial inability to control or serious difficulty in controlling sexually criminal behavior.

Defendant concedes that the California Supreme Court has rejected this argument. (People v. Williams (2003) 31 Cal.4th 757 (Williams).) He contends he raises the issue to preserve it for federal review and because Williams was wrongly decided. We are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject the contention of instructional error.

II. Administrative Procedures Act Claim

The District Attorney filed the SVP recommitment petition on December 8, 2006. The reports of Drs. Owen and Coles were attached to the petition, and each gives the opinion that defendant is an SVP.

Defendant filed an unsuccessful motion to dismiss the petition, but not on the grounds now raised.

Defendant contends these reports were prepared according to invalid guidelines issued by the Department. A published case has noted that the Office of Administrative Law (OAL) issued a ruling concluding the Department crafted its assessment protocol without complying with the Administrative Procedures Act (APA), and that the protocols were being revised to comply with that determination. (People v. Medina (2009) 171 Cal.App.4th 805, 814-815 (Medina).) For purposes of this appeal we will accept defendants premise of an APA violation, therefore, we deny defendants request for judicial notice of the OAL determination, as it is unnecessary to our decision.

Defendant contends that because the reports attached to the petition were prepared under those procedurally invalid protocols, the judgment must be reversed. We disagree.

The reports prepared prior to the filing of an SVP petition serve as and only as a procedural safeguard to prevent meritless petitions from reaching trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063; see People v. SuperiorCourt (Preciado) (2001) 87 Cal.App.4th 1122, 1130 (Preciado).)

The People need not prove such reports at either the probable cause hearing or at trial; once the petition is filed, the People need only prove the person meets the statutory SVP criteria. (Preciado, supra, 87 Cal.App.4th at p. 1130.)

Similarly, the sole purpose of the probable cause hearing is to weed out factually groundless SVP petitions. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235, 247 (Cooley); People v. Hayes (2006) 137 Cal.App.4th 34, 43-44 (Hayes).) The hearing is analogous to a preliminary hearing in a criminal case[.] (Cooley, supra, 29 Cal.4th at p. 247.) It is an adversarial hearing (People v. Munoz (2005) 129 Cal.App.4th 421, 429), where the judge must review all necessary elements of an SVP determination and conclude there is probable cause as to each element. (Cooley, supra, 29 Cal.4th at pp. 246247.) Once that determination is made, the matter proceeds to trial (Hayes, supra, 137 Cal.App.4th at p. 44), where the prosecution has the burden of proving that the defendant is an SVP. (Medina, supra, 171 Cal.App.4th at p. 814 [determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process].)

Consequently, challenges to a probable cause finding in an SVP proceeding are like challenges to a preliminary hearing finding in a criminal case. (Hayes, supra, 137 Cal.App.4th at p. 51.) Irregularities are not jurisdictional (People v. Talhelm (2000) 85 Cal.App.4th 400, 405), and reversal is required if and only if the defendant can show he was deprived of a fair trial or otherwise suffered prejudice as a result of the error. (Medina, supra, 171 Cal.App.4th at pp. 818-820; Hayes, supra, 137 Cal.App.4th at p. 50, relying on People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529530.)

Defendant does not challenge the sufficiency of the evidence at the probable cause hearing or at trial. He claims that the reports are invalid because they were prepared according to invalid procedures. But the reports serve only to prevent meritless petitions from reaching trial. In this case, a trial has been held and defendant was found to be an SVP. Therefore, he has failed to establish any prejudice. (See In re Wright (2005) 128 Cal.App.4th 663, 672-674 [although one probable cause evaluation was invalid because the author lacked proper credentials, no prejudice shown because counsel represented Wright at trial and Wright presented his own expert witness and cross-examined the Peoples witnesses. These facts show that Wright received a fair trial]; People v. Butler (1998) 68 Cal.App.4th 421, 435 [trial courts error in failing to conduct evidentiary hearing at probable cause stage of SVP proceeding held to be harmless after jury trial].)

In the reply brief, defendant claims he was convicted based on improper expert testimony, and argues that where the reports are invalid, the doctors opinions, both in the reports and testified-to at trial, are also invalid and incompetent because both are rendered pursuant to the improperly promulgated standard assessment protocol. We reject this contention. First, defendant did not raise this claim of prejudice in the opening brief, thereby depriving the People of the opportunity to respond, and therefore he has forfeited the claim. (Kahn v. Wilson (1898) 120 Cal. 643, 644; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.) Second, defendant did not challenge the expertise of the doctors at trial, and the fact that the protocols they used to prepare preliminary reports had been adopted in a procedurally flawed manner does not mean that those guidelines would undermine their professional opinions. Defendant did not voir dire Drs. Owen or Coles to challenge their expertise, and in cross-examination Dr. Owen testified that although he uses the Departments guidelines, If its a guideline thats inappropriate for an evaluation I dont follow it. Therefore defendant has not shown that Department guidelines tainted the opinions rendered at trial. (Cf. People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 [flaws in SVP evaluators reports material only if they affected the evaluators ultimate conclusion].)

Accordingly, we conclude that any error did not prejudice defendants jury trial on the issue of whether he was an SVP.


Defendant contends the revisions to the SVP statutes embodied in Proposition 83, adopted at the November 7, 2006, General Election and popularly known as Jessicas Law, are invalid for several different reasons. Although defendant did not lodge these objections in the trial court, the Attorney General does not argue he has forfeited them, and we elect to reach the merits of his claims.

We are aware that the California Supreme Court has granted review in a number of cases to resolve these and similar claims. (E.g., People v. McKee, review granted July 9, 2008, S162823 [lead case]; People v. Riffey, review granted Aug. 20, 2008, S164711; People v. Boyle, review granted Oct. 1, 2008, S166167; People v. Johnson, review granted Aug. 13, 2008, S164388; People v. Garcia, review granted Oct. 16, 2008, S166682; People v. Force, review granted April 15, 2009, S170831.)

First, we provide this general background:

Under the SVPA, until it was amended in 2006, a person determined to be an SVP was committed to the custody of the Department of Mental Health for a period of two years and was not kept in actual custody for longer than two years unless a new petition to extend the commitment was filed. . . .

On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 [SB 1128]. (Stats. 2006, ch. 337.) [SB 1128] was urgency legislation that went into effect immediately. [Id., 62.] Among other things, it amended provisions of the SVPA to provide the initial commitment

. . . was for an indeterminate term. [Id., 55.] . . .

. . . . . . . . . .

At the November 7, 2006 General Election, the voters approved Proposition 83, an initiative measure. [Citation.] Proposition 83 was known as The Sexual Predator Punishment and Control Act: Jessicas Law. [Citation.] Among other things, Proposition 83 requires that SVPs be committed by the court to a state mental hospital for an undetermined period of time rather than the renewable two-year commitment provided for under existing law. [Citinganalysis in ballot pamphlet.]

Proposition 83 amended . . . section 6604 in the same manner as did [SB 1128], changing the term of commitment to an indeterminate term and deleting all references to extended commitments in that section. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.)

A. Due Process Claim

Defendant contends his indeterminate commitment under the amended SVPA violates due process because there is no longer any provision for periodic hearings to determine the propriety of continued commitment and because he has the burden to prove that he is no longer an SVP. We disagree.

A defendant in an SVP proceeding is entitled to due process protections, but challenging the statute on due process grounds carries a heavy burden. Courts have a duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. (People v. Otto (2001) 26 Cal.4th 200, 209-210.)

Defendant begins with the premise that a civil commitment is proper where, and only where, in addition to a finding of dangerousness, there is a finding that the person has a mental problem impairing the persons ability to control his or her behavior, citing Kansas v. Hendricks (1997) 521 U.S. 346 [138 L.Ed.2d 501] (Hendricks). He then reasons that a commitment can last only as long as the mental problem lasts, and contends there is no appropriate mechanism to reevaluate that issue. We disagree with this contention.

The Department must prepare an annual report on each SVP, and if the report concludes a person is no longer an SVP, a discharge petition is filed by the Department, and the person is entitled to a hearing at which the state would carry the burden to prove his continued SVP status beyond a reasonable doubt.

( 6605, subds. (a), (b), (d).) But an SVP can petition for discharge (or conditional release) whether or not the Department supports the petition. ( 6608.) The SVP may retain, or if he or she is indigent and so requests, the court may appoint, an expert, whose report could be used to support a discharge petition. ( 6605, subd. (a).) And a petitioner is entitled to counsel to press her or his claims. ( 6608, subd. (a).)

The initial commitment hearing establishes, beyond a reasonable doubt, that the person is an SVP. It is not unfair to require the SVP to prove there has been a change in her or his condition. It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment. (Jones v. United States (1983) 463 U.S. 354, 366 [77 L.Ed.2d 694, 706]; see People v. Sword (1994) 29 Cal.App.4th 614, 622-624 [imposing burden on NGI did not violate due process]; People v. Beck (1996) 47 Cal.App.4th 1676, 1684 (Beck).) And at a discharge hearing, the defendant need only meet the lowest burden of proof, preponderance of the evidence. ( 6608, subds. (a), (i).)

Thus, viable mechanisms exist which preclude the possibility that a person who is no longer an SVP will languish under an indeterminate commitment. Accordingly, we reject defendants due process claim.

B. Equal Protection

Defendant contends that the amended SVP statutes violate equal protection because persons committed under the Mentally Disordered Offender Act (MDOs) (Pen. Code, 2960 et seq.) and persons committed because they were found not guilty by reason of insanity (NGIs) (Pen. Code, 1026 et seq.) are not subject to indeterminate commitments and can obtain judicial review of their commitments. We disagree.

Taking the last point first, we have already explained that SVPs have a mechanism for judicial review, one that provides for the appointment of counsel, an expert witness, and a hearing. To the extent defendants brief may be read to raise the claim that casting the burden of proof on him at such hearing violates equal protection, he lacks standing to make such claim at this time. At the hearing in this case the People had the burden of proof. (See People v. Garcia (1999) 21 Cal.4th 1, 11-12 [defendant lacked standing to assert hypothetical equal protection claims of other felons].)

To the extent defendant claims SVPs have no right to compel a hearing on the merits regarding their committed status, he fails to flesh out the claim with analysis or authority, but appears to be making an oblique reference to a trial courts power to dismiss frivolous petitions without a hearing. Putting aside the inadequate briefing, the claim lacks merit. The trial court must determine if [the petition] is based upon frivolous grounds, and, if so, shall deny the petition without a hearing. ( 6608, subd. (a).) As used in this statute, frivolous imports the same standard as that used to determine if a pleading or appeal is frivolous, that is, taken solely for an improper motive such as harassment or delay, or based on grounds that any reasonable attorney would find totally without merit. (People v. Collins (2003) 110 Cal.App.4th 340, 349-350.) A trial courts determination not to hold a hearing because the petition is frivolous is subject to review by a higher court. (Id. at pp. 351-352 [reversing trial courts determination that Collinss petition was frivolous].)

Defendant does not have the right to an evidentiary hearing on a petition that is frivolous. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, fn. 4 [right to petition provides little or no protection for baseless litigation or sham or fraudulent actions], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5; see also generally, Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, esp. pp. 60-61 [upholding vexatious litigant statutes, in part providing for review of trial courts determination].) In the context of a habeas corpus proceeding, a type of petition for redress entitled to explicit constitutional protection, it is permissible to summarily deny a petition that does not clearly state facts showing entitlement to relief. (See In re Swain (1949) 34 Cal.2d 300, 303-304.) We see no reason why an SVP should be entitled to a futile hearing on a frivolous petition, when other pleaders must state a colorable claim for relief.

As for the claim that MDOs and NGIs are not subject to indeterminate commitments, that, of itself, does not establish an equal protection violation. While equal protection requires that persons similarly situated be similarly treated (see People v. Buffington (1999) 74 Cal.App.4th 1149, 1155 (Buffington)), [t]he state may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of power. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217 (Hubbart II).)

The first question in an equal protection analysis is whether the groups being compared are similarly situated, because if they are not similarly situated, the challenge fails at the threshold. (Buffington, supra, 74 Cal.App.4th at p. 1155; see Grossmont Union High School Dist. v. State Dept. of Education (2008) 169 Cal.App.4th 869, 892 [The essence of an equal protection claim is that two groups, similarly situated with respect to the law in question, are treated differently].)

Cases construing the pre-Proposition 83 version of the SVP statutes considered and rejected claims that SVPs were similar to MDOs or NGIs, with respect to the definition of mental disorder, evidence required for commitment, and provision of treatment. (Hubbart II, supra, 88 Cal.App.4th at pp. 1216-1222; Buffington, supra, 74 Cal.App.4th at pp. 1155-1164.) Defendant provides no reasoned analysis explaining why, for purposes of lengths of commitment or review mechanisms, SVPs are similarly situated to either group.

He asserts that SVP defendants and MDO defendants are both committed for treatment because they represent a danger to the public because of a mental disorder. Defendant paints with too broad a brush. [T]he MDO law targets persons with severe mental disorders that may be kept in remission with treatment [citation], whereas the SVPA targets personswith mental disorders that may never be successfully treated[.] (Hubbart II, supra, 88 Cal.App.4th at p. 1222.) Thispoint was emphasized by the People in adopting Proposition 83, which includes the finding that 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. (Historical and Statutory Notes, 47C Wests Ann. Pen. Code (2008) foll. 209, p. 52.) The higher recidivism rate of sex offenders makes them unlike MDOs, therefore we conclude they are not similarly situated. As we said in rejecting an analogous claim, The MDO Act considers, at least in part, past evaluation and treatment, while the SVPA considers only the likelihood of future sexually violent criminal behavior without commitment. [Citations.] Prisoners who suffer from conditions that may with treatment be kept in remission are the target of the MDO Act, whereas the SVPA covers prisoners whose conditions pose a risk of future sexually violent criminal behavior and who may never be completely treated. [Citations.] Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes. (Buffington, supra, 74 Cal.App.4th at pp. 1162-1163; see Beck, supra, 47 Cal.App.4th at pp. 1686-1687 [NGIs not similarly situated to MDOs or civil committees].)

Defendant makes no specific argument explaining why SVPs and NGIs are similarly situated. An NGI is committed upon the jurys verdict. (Pen. Code, 1026, subd. (a).) A hearing cannot be held on an application for release until he or she has been confined or placed on outpatient status for at least 180 days. (Pen. Code, 1026.2, subds. (a) & (d).) In contrast, an SVP is not committed until a trier of fact finds beyond a reasonable doubt that the person is an SVP. Then, as we have explained, the SVP has the right to judicial review of a nonfrivolouspetition for discharge (or conditional release). Further, an NGIs commitment is partly dependent on the maximum term of imprisonment that could have been imposed if the person had been found guilty. (Pen. Code, 1026.5, subd. (a)(1).) If found to represent a substantial danger of physical harm to others by reason of a mental disorder, an NGI can be recommitted for two years, akin to the former SVP commitment period. (Pen. Code, 1026.5, subd. (b)(8).) But an SVPs indeterminate commitment is not linked in any way to past crimes, but to his present danger, and when an SVP no longer meets the statutory definition, she or he can petition for release.

Given the lack of cogent analysis from defendant explaining how NGIs are similarly situated to SVPs, except for the broad fact that both have mental problems, we reject his claim that SVPs and NGIs are similarly situated.

Because defendant has not articulated how he is similarly situated to either an MDO or an NGI, he has not met the threshold showing required to make out an equal protection violation. (Buffington, supra, 74 Cal.App.4th at p. 1155.)

C. Ex Post Facto

Defendant contends that because the Proposition 83 amendments expose him to an indefinite term, they increased his punishment and violate ex post facto principles.

The short answer is that an SVP proceeding is a civil proceeding, therefore it is not punitive. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1179 (Hubbart I); People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)

We recognize that an ostensibly civil proceeding could have punitive characteristics. (See Hendricks, supra, 521 U.S. at p. 361 [138 L.Ed.2d at pp. 514-515] [but we ordinarily defer to the legislatures stated intent and party showing otherwise must present the clearest proof that the statutory scheme [is] so punitive either in purpose or effect as to negate [the States] intention to deem it civil].)

Hendricks rejected a claim that Kansass SVP law violated ex post facto and double jeopardy principles, because the law did not inflict punishment, although Kansas SVPs could be subject to repeated commitments, potentially for life. The court listed a number of factors, including the lack of purpose to exact retribution or deter other sex offenders, who by definition are unable or unwilling to control their urges, and the absence of a need to show scienter, and concluded that the fact the procedure had some attributes of a criminal trial, such as the burden of proof beyond a reasonable doubt, did not show it was a punitive proceeding. (Id. at pp. 361-365 [138 L.Ed.2d at pp. 515-517].) The court held that incapacitation may be a legitimate end of the civil law, especially when that concern is coupled with the States ancillary goal of providing treatment to those offenders, if such is possible. (Id. at pp. 365-366 [138 L.Ed.2d at p. 517].)

Following Hendricks, the California Supreme Court found Californias original SVP statutes were not punitive because they cannot be meaningfully distinguished for ex post facto purposes from the Kansas scheme[.] (Hubbart I, supra, 19 Cal.4th at p. 1175; accord People v. Yartz (2005) 37 Cal.4th 529, 536 [an SVPA commitment proceeding is a special proceeding of a civil nature].) Concerning the length of an individuals commitment in particular, Hubbart noted, nothing in Hendricks purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejecting Hendrickss claim that the scheme imposed punishment because confinement was potentially indefinite, the court made clear 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. (Hubbart I, supra, 19 Cal.4th at p. 1176.) Under Proposition 83, the length of a defendants commitment is directly linked to its purpose, and an SVP who can demonstrate a change in condition to the point that she or he no longer meets the statutory SVP criteria will be released.

Proposition 83 states in part that 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. (Bourquez, supra, 156 Cal.App.4th at p. 1282.) Proposition 83 changed punishment and control of sex offenders. Partof Proposition 83 was punitivesuch as increasing the sentences for some sex crimesbut none of those changes have been applied to defendant. The only parts of Proposition 83 applied to defendant are the changes regarding control of sex offenders, notably the change providing for indeterminate civil commitments. The fact that some provisions of Proposition 83 increased the punishment imposed on sexual offendersprovisions not applied to defendantdoes not mean the purpose behind all of its provisions was punitive.

Defendant has not shown the amended SVP statutes are punitive in effect. The fact commitments are now of indeterminate duration does not make them punitive, the 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 [138 L.Ed.2d at p. 516].)

Because we conclude defendant has not shown that the amended SVPA is punitive, we reject his ex post facto claim.


The judgment is affirmed.

BLEASE , Acting P. J.

We concur:



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Description A jury found defendant Jim Dean Wolfenbarger to be a Sexually Violent Predator (SVP). (Welf. & Inst. Code, 6600, et seq.; further unspecified section references are to this code.) The trial court committed him to the Department of Mental Health (Department) for an indeterminate term, and defendant timely appealed. Defendant raises a number of legal contentions that have been rejected by other cases, some of which are now pending before the California Supreme Court. Court reject each of his contentions and affirm the judgment.
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