P. v. Shepherd

Filed 5/28/08 P. v. Shepherd CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

----

Committed to the State Department of Mental Health (the department) for an indeterminate term as a sexually violent predator (SVP), defendant Benjamin Joseph Shepherd appeals. He contends the recent amendments to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,^[1] 6600 et seq.) that provide for indeterminate commitments violate constitutional principles of due process and equal protection. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128). (Stats. 2006, ch. 337.) Senate Bill 1128 was urgency legislation that went into effect immediately. (Stats. 2006, ch. 337, 62.) Among other things, it amended provisions of the SVPA to provide the initial commitment set forth in Welfare and Institutions Code section 6604 was for an indeterminate term. (Stats. 2006, ch. 337, 55.) (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.)

At the November 7, 2006 General Election, the voters approved Proposition 83, an initiative measure. (Deerings Ann. Welf. & Inst. Code (2007 supp.) appen. foll. 6604, p. 43.) Proposition 83 was known as The Sexual Predator Punishment and Control Act: Jessicas Law. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) 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. (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, p. 44.) (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1281.)

In January 2007, following these amendments to the SVPA, the Shasta County District Attorney filed a petition to commit defendant as an SVP. In February, the court found probable cause to believe defendant was subject to commitment as an SVP, and the matter was eventually set for trial in July 2007. Before trial, defendant moved for a determination that his indeterminate commitment pursuant to the amended SVPA would violate due process and equal protection. The court denied the motion. The jury subsequently found defendant was an SVP, and the trial court committed him to the department for an indeterminate term. Defendant filed a timely notice of appeal.

DISCUSSION

I

The SVPA

The SVPA allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) Under the version of the SVPA in effect before the enactment of Senate Bill No. 1128 and the passage of Proposition 83, if the government proved beyond a reasonable doubt in an initial commitment proceeding that a person was an SVP, then the court had to commit the person to the department for two years, and the person could not be kept in actual custody for longer than two years unless a new petition to extend the commitment was filed. (Former 6604; Albertson v. Superior Court (2001) 25 Cal.4th 796, 802, fn. 6; Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1280.) The procedures for an initial commitment also appl[ied] to an extended commitment to the extent possible. (People v. Ward (2002) 97 Cal.App.4th 631, 634.) Thus, to extend a persons commitment as an SVP, the government had to prove beyond a reasonable doubt that the person remained an SVP. The term of any extended commitment was two years from the end of the previous commitment. (Former  6604.1, subd. (a).)

In the wake of Senate Bill No. 1128 and Proposition 83, the SVPA still provides that in an initial commitment proceeding the government must prove beyond a reasonable doubt that the person whose commitment is sought is an SVP. (See 6604.) Now, however, if the court or jury makes that finding, the court must commit the person to the department for an indeterminate term, rather than a two-year term. (Ibid.)

Because the term of commitment is indeterminate, the government no longer has to prove at regular intervals, beyond a reasonable doubt, that the person remains an SVP. Instead, the department must examine the persons mental condition at least once a year and must report annually on whether the person remains an SVP. ( 6605, subd. (a).) If the department determines the person is no longer an SVP, the director of the department must authorize the person to petition the court for unconditional discharge. ( 6605, subd. (b).) If, on consideration of such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must conduct a hearing, at which the government has to prove beyond a reasonable doubt that the person is still an SVP. (Id., subds. (c) & (d).) If the government meets that burden, the person must (once again) be committed for an indeterminate term. (Id., subd. (e).) If the government does not meet its burden, then the person must be discharged. (Ibid.)

The only other avenue for release from confinement under the amended SVPA is a petition under section 6608. This statute remains substantially the same as before the enactment of Senate Bill No. 1128 and the passage of Proposition 83. Under this statute, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the department. ( 6608, subd. (a).) Such a petition may also be instituted by the director under section 6607. In any hearing under section 6608, however, the petitioner has the burden of proof by a preponderance of the evidence. ( 6608, subd. (i).)

With these aspects of the law in mind, we turn to defendants arguments on appeal.

II

Due Process

Defendant contends his indeterminate commitment under the amended SVPA violates the due process clause of the Fourteenth Amendment to the United States Constitution because the provisions of the amended law create a substantial risk that a detainee who no longer qualifies as a sexually violent predator will remain confined in custody. We disagree.

Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. [Citation.] A defendant 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.)

Defendants contention that indeterminate commitment violates due process rests on what he considers to be the inadequate mechanisms for judicial review of SVP confinement provided by sections 6605 and 6608. Defendant argues that under section 6605 the state . . . can prevent any hearing from ever being held in which it has the burden of proving beyond a reasonable doubt that the defendant [is still an SVP] by simply not authorizing the filing of a petition [for discharge]. Further, in his view section 6608 provides an inadequate alternative to section 6605 because the detainee has the burden of proof when he seeks release under section 6608. Relying on Addington v. Texas (1979) 441 U.S. 418 [60 L.Ed.2d 323], defendant contends it violates due process to put the burden of proof on him.

Defendants reliance on Addington is misplaced. Addington involved the question of what standard of proof is required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. (Addington v. Texas, supra, 441 U.S. at pp. 419-420 [60 L.Ed.2d at p. 327].) The trial court in Addington had instructed the jury to use a clear, unequivocal and convincing evidence standard, over the committed persons argument that proof beyond a reasonable doubt was required. (Id. at p. 421 [60 L.Ed.2d at p. 328].) The Texas Supreme Court held that the preponderance of the evidence standard was sufficient. (Id. at p. 422 [60 L.Ed.2d at pp. 328-329].) The United States Supreme Court concluded that the individuals interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. (Id. at p. 427 [60 L.Ed.2d at p. 332].) At the same time, however, the court determined that the reasonable doubt standard is not required and proof by clear and convincing evidence is sufficient. (Id. at pp. 431-433 [60 L.Ed.2d at pp. 334-335].)

The due process requirements of Addington were satisfied here when the court instructed the jury deciding whether defendant should be committed as an SVP in the first place that the People were required to prove the allegations of their complaint beyond a reasonable doubt. Nothing in Addington suggests that any future proceedings to determine whether defendant should remain confined because he remains an SVP must also meet the requirements of Addington, with the government bearing the burden of proof by clear and convincing evidence.

Defendant asserts that a hearing held pursuant to section 6608 is more akin to an initial civil commitment proceeding than a hearing to determine if the commitment should be extended because an indeterminate commitment could continue for decades, but the SVP detainees civil commitment is lawful only if he suffers from a current medical condition. We find no merit in this assertion. The change from fixed, two-year commitments to indeterminate commitments was prompted by the perceived need to protect society and the [legal] system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person. (Historical and Statutory Notes, 47A Wests Ann. Pen. Code (2008 supp.) foll. 209, p. 463.) Because the adjudication that results in the initial commitment establishes, beyond a reasonable doubt, that the person is an SVP and therefore a proper candidate for civil commitment under the SVPA, it is not unfair or unreasonable to give that adjudication preclusive effect, absent proof of some change in the committed persons mental condition. Moreover, where the committed person is the one asserting that change, contrary to the extant determination of the department, it is not unfair or unreasonable to require the committed person to carry the burden of proving his or her own assertion.

For the foregoing reasons, we find no merit in defendants assertion that his indeterminate commitment under the amended SVPA violates due process.

III

Equal Protection

Defendant contends subjecting SVPs like him to the amended SVPA violates the equal protection clause of the Fourteenth Amendment because persons committed under the Mentally Disordered Offender (MDO) Act (Pen. Code, 2960 et seq.) and persons committed because they were found not guilty by reason of insanity (NGI) (id, 1026 et seq.) are not subject to indeterminate commitments and can more readily obtain judicial review of their commitments. We conclude no equal protection violation has been shown.

The constitutional guaranty of equal protection of the laws means simply that persons similarly situated with respect to the purpose of the law must be similarly treated under the law. [Citations.] If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] The question is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged. (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)

Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.] [Citation.] The 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.)

Strict scrutiny is the correct standard of review in California for disparate involuntary civil commitment schemes because liberty is a fundamental interest. (People v. Buffington, supra, 74 Cal.App.4th at p. 1156.)

We begin with defendants comparison of the amended SVPA to the MDO Act. The MDO Act and the SVPA are often compared for equal protection purposes because both deal with prisoners who have completed their sentences and who may be subject to involuntary confinement for mental health treatment. (People v. Buffington, supra, 74 Cal.App.4th at p. 1156, fn. 3.)

Defendant argues that while SVPs are subject to indeterminate commitments with the SVP detainee having the burden of proving his fitness for relief unless the state elects to grant the SVP detainee permission to file a petition pursuant to section 6605, commitments under the MDO Act are for a period of one year and [t]he MDO Act . . . grants the committee the right to periodic review of his confinement in which the state has the burden of proof. In defendants view, [t]here is no compelling state interest supporting this distinction.

The first question is whether persons committed under the SVPA are similarly situated to persons committed under the MDO Act 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. Defendant does not address that question, arguing instead that SVPs and MDOs are similarly situated, period. In other words, defendant appears to assert that SVPs and MDOs are similarly situated for purposes of any equal protection claim.

This assertion is erroneous. For example, in Buffington this court concluded that SVPs are similarly situated to MDOs for purposes of the laws defining the mental disorder necessary to detain them (People v. Buffington, supra, 74 Cal.App.4th at p. 1156), but are not similarly situated to MDOs for purposes of the laws relating to treatment (id. at pp. 1162-1664).

Defendant fails to offer any argument as to why SVPs are similarly situated to MDOs 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. On the other hand, the People argue the two groups are not similarly situated because: (1) commitment under the MDO Act is directly related to the crime for which the [MDO] was incarcerated; and (2) MDOs are more amenable to treatment than SVPs. We do not see how the first difference bears any reasonable relationship to how long they should be confined and treated and how review of their commitments should be secured. The second difference, however, is relevant. One court has noted that the MDO law targets persons with severe mental disorders that may be kept in remission with treatment [citation], whereas the SVPA targets persons with mental disorders that may never be successfully treated. (People v. Hubbart, supra, 88 Cal.App.4th at p. 1222.) Moreover, as the People note, the voters who passed Proposition 83 recognized that SVPs stand apart from other civil committees in their likelihood of reoffense and resistance to treatment. Subdivision (b) of the FINDINGS AND DECLARATIONS section of the initiative measure specifically notes that [s]ex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend . . . . (Historical and Statutory Notes, 47A Wests Ann. Pen. Code (2008 supp.) foll. 209, p. 462.)

Given these differences between SVPs and MDOs, and in the absence of any argument from defendant on the point, we conclude that SVPs and MDOs are not similarly situated with regard to the laws governing the length of their commitments and how and under what conditions judicial review of their commitments can be obtained. Thus, this equal protection challenge fails at the threshold.^[2] (People v. Buffington, supra, 74 Cal.App.4th at p. 1162.)

We turn now to defendants equal protection argument based on the different treatment of SVPs and NGI acquittees. A person committed to a state hospital following an NGI determination can apply for release on the ground sanity has been restored (Pen. Code, 1026.2, subd. (a)), just like an SVP can petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the department under section 6608. Moreover, the NGI acquittee seeking release has the burden of proof by a preponderance of the evidence (Pen. Code, 1026.2, subd. (k)), just like the SVP seeking release or discharge under section 6608 does ( 6608, subd. (i)). Nonetheless, defendant asserts an equal protection violation because, unlike an SVP, an insanity acquittee has the right to a hearing on a petition for release within 180 days following . . . initial commitment.

As an initial matter, defendant is mistaken about the relevant time period. If an insanity acquittee applies for release on the ground his or her sanity has been restored, no hearing can be held on that application until the person committed has been confined or placed on outpatient status for a period of not less than 180 days from the date of the order of commitment. (Pen. Code, 1026.2, subd. (d).) Thus, an insanity acquittee does not have a right to a hearing within 180 days as defendant contends.

That leaves us with defendants assertion that an insanity acquittee has the right to a hearing on his or her application for release. (See People v. Soiu (2003) 106 Cal.App.4th 1191, 1196.) In contrast, defendant contends, SVP defendants . . . do not have any right to compel a hearing on the merits regarding their committed status.

We do not agree with defendants latter contention, inasmuch as section 6608 gives SVPs the right to a hearing, except where the court decides the petition for release or discharge is based on frivolous grounds, in which case the court must deny the petition. ( 6608, subd. (a).) In any event, as before, the initial question to be answered is whether NGI acquittees are similarly situated to SVPs for purposes of the laws governing how and under what conditions judicial review of their commitments can be obtained. On this point, it is important to note that a person who is found not guilty because he or she was insane at the time of the crime is automatically committed without an evidentiary hearing to determine if the person is still insane at the time of commitment. (See Pen. Code, 1026, subd. (a).) Even if the person immediately applies for release on the ground his or her sanity has been restored, a hearing cannot be held on that application until he or she has been confined for at least 180 days. (See 1026.2, subds. (a) & (d); People v. McKee, supra, 160 Cal.App.4th at pp. 1550-1551.) In contrast, a person cannot be committed under the SVPA until a trier of fact finds beyond a reasonable doubt that the person is an SVP.

As with his argument comparing SVPs to MDOs, defendant fails to offer any cogent argument as to why SVPs are similarly situated to NGI acquittees with regard to the laws governing how and under what conditions judicial review of their commitments can be obtained. Given the disparate manner in which SVPs and NGI acquittees are committed in the first place, and the lack of any argument from defendant on the point, we conclude that defendant has failed to demonstrate that SVPs and NGI acquittees are similarly situated for purposes of the laws governing judicial review of their commitments. In the absence of such a showing, defendants equal protection claim fails at the threshold.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SIMS , Acting P.J.

RAYE , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[2] Our conclusion on this point is consistent with the reasoning of Division One of the Fourth Appellate District in People v. McKee (2008) 160 Cal.App.4th 1517, 1547-1550 and People v. Johnson (May 14, 2008, D050751) ___ Cal.Appp.4th ___ [08 D.A.R. 6954, 6959-6960].