P. v. Rotroff
Filed 3/20/13 P. v. Rotroff CA6
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
DENIS KEITH ROTROFF,
Defendant and
Appellant.
H033527
(Santa Clara
County
Super. Ct. No. 210929)
In 2009, this court affirmed an October 22, 2008 order committing Denis Keith Rotroff to an indeterminate term as a
("SVP"). (See Welf. &
Inst. Code, § 6600 et seq.)
name="_ftnref1" title="">[1] After Rotroff
petitioned for review, the Supreme Court granted review and subsequently,
following its decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee),
transferred the matter to this court.
The Supreme Court directed this court to vacate our decision and to
reconsider the cause in light of McKee.
The court's order further provided: "In order to avoid an
unnecessary multiplicity of proceedings, the court is additionally directed to
suspend further proceedings pending finality of the proceedings on remand in
McKee . . . . 'Finality
of the proceedings' shall include the finality of any subsequent appeal and any
proceedings in this court."
Following trial on remand and appeal, the
Fourth District, Division One, issued People v. McKee (2012) 207
Cal.App.4th 1325 ("McKee II").
The Supreme Court denied McKee's petition for review (review den. Oct. 10, 2012, S204503). The McKee case on remand is now
final. Accordingly, we now reconsider
this case in light of the Supreme Court's McKee decision.
We
conclude that appellant Rotroff's claims lack merit.
I
Procedural History
Appellant Rotroff
waived a jury trial and submitted the petition to extend his commitment as an
SVP for decision based upon documentary reports. The trial court found, beyond a reasonable
doubt, that appellant was an SVP and ordered him committed for an indeterminate
term. (§ 6604.) On appeal, appellant challenges the
constitutionality of the Sexually Violent Predator Act (SVPA) as amended by
Proposition 83 in 2006.
II
Discussion
A. Single Subject Rule
Appellant maintains that Proposition 83
violated the single subject rule because it "combined too many disparate topics
without a common purpose under a broad and amorphous theme of dealing with sex
offenders." The single subject rule
is expressed in two constitutional provisions, one applicable to statutes and
the other applicable to initiative measures.
California Constitution, article II, section 8, subdivision (d), which
applies to initiatives, provides:
"An initiative measure embracing more than one subject may not be
submitted to the electors or have any effect."
The single subject rule is "a constitutional safeguard adopted to
protect against multifaceted measures of undue scope" and "forbids
joining disparate provisions which appear germane only to topics of excessive
generality such as 'government' or 'public welfare.' " (Brosnahan v. Brown (1982) 32 Cal.3d
236, 253.) "The single subject rule
as applied to the initiative has the dual purpose of avoiding log-rolling and
voter confusion. (Amador Valley Joint
Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208,
231 . . . .)" (Harbor
v. Deukmejian (1987) 43 Cal.3d 1078, 1098.)
It is intended to avoid passage of a measure that combines
"provisions which might not have commanded majority support if considered
separately" and to "minimize the risk of voter confusion and
deception. [Citation.]" (Amador Valley Joint Union High Sch. Dist.
v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231.)
The California Supreme Court has "construed our two single subject
provisions in an accommodating and lenient manner so as not to unduly restrict
the Legislature's or the people's right to package provisions in a single bill
or initiative. [Citations.]" (Californians For An Open Primary v.
McPherson (2006) 38 Cal.4th 735, 764.)
It has "found the single subject rules to have been satisfied so
long as challenged provisions meet the test of being reasonably germane
to a common theme, purpose, or subject.
[Citations.]" (Ibid.,
fn. omitted.)
In Brosnahan v. Brown, supra, 32 Cal.3d 236, 248, it was argued
that Proposition 8, commonly known as "The Victims' Bill of Rights,"
violated the single subject rule because it contained "disparate
provisions covering a variety of 'unrelated' matters such as school safety,
restitution, bail, diminished capacity, and the like." The California Supreme Court concluded that
the proposition met "the 'reasonably germane' standard" because
"[e]ach of its several facets bears a common concern, 'general object' or
'general subject,' promoting the rights of actual or potential crime
victims." (Id. at p.
247.) The court stated: "As
explained in the initiative's preamble, the 10 sections were designed to
strengthen procedural and substantive safeguards for victims in our criminal
justice system. These changes were aimed
at achieving more severe punishment for, and more effective deterrence of,
criminal acts, protecting the public from the premature release into society of
criminal offenders, providing safety from crime to a particularly vulnerable
group of victims, namely school pupils and staff, and assuring restitution for
the victims of criminal acts." (Ibid.) The "readily discernible common
thread" uniting the initiative's provisions was the goal of protecting and
enhancing the rights of crime victims. (Ibid.)
In Manduley v. Superior Court (2002) 27 Cal.4th 537, the Supreme
Court upheld Proposition 21 against various claims that it violated the single
subject rule. (Id. at pp.
573-581.) Its provisions related to
Three Strikes law, criminal gang activity, and the juvenile justice
system. (Id. at pp.
574-575.) The court determined that
"[t]he general object of the initiative is to address the problem of
violent crime committed by juveniles and gangs." (Id. at pp. 575-576.) It decided: "[T]he provisions of
Proposition 21 that change laws regarding gang-related crime and the juvenile
justice system are reasonably germane to each other and to the initiative's
common purpose of addressing violent crime committed by juveniles and
gangs." (Id. at p.
576.) It further determined that
"[r]evising the list of violent and serious felonies to add crimes for
which juveniles and gang members can receive increased penalties is reasonably
germane to the initiative's general purpose of addressing juvenile and
gang-related crime," "[e]ven if some of the crimes added to the list
of violent and serious felonies are more likely to be committed by an
adult who is not a gang member," because "the offenses nonetheless
constitute crimes that commonly are committed by members of street gangs and/or
juvenile offenders" (id. at p. 578).
In this case, the separate provisions of Proposition 83 are
"reasonably germane to a common theme, purpose, or subject" of
protecting the public against the commission of sex offenses. Appellant has not identified any provision
that falls outside this common purpose.
The fact that the measure affected both Welfare and Institutions Code
and Penal Code sections is not determinative.
(See Manduley v. Superior Court, supra, 27 Cal.4th at pp.
574-575.) While appellant complains that
the proposition reflects a "scattered shotgun approach to diverse
topics," he concedes that these topics "relate broadly to sex
offenses." The single subject rule
does not require that each of the provisions of an initiative measure effectively
interlock in a functional relationship.
(Id. at p. 575.)
In addition, we must reject appellant's assertion that the public
probably misunderstood that "SVP proceedings were civil in nature"
since we assume the voters duly considered and comprehended the voter
materials. (Id. at p. 580.) The proposition's official summary prepared
by the Attorney General, which is contained in the Official Voter Information
Guide, explicitly stated up front, underneath the official title: "Changes
current two-year involuntary civil commitment for a sexually violent predator
to an indeterminate commitment, subject to annual review by the Director of
Mental Health and subsequent ability of sexually violent predator to petition
court for sexually violent predator's conditional release or unconditional
discharge." (Voter Information
Guide, Gen. Elec. (Nov. 7, 2006) official title and summary of Prop. 83, p. 42,
italics added.) One of the proposition's
express findings supporting the changes in the SVPA stated in part:
"California is the only state, of the number of states that have enacted
laws allowing involuntary civil commitments for persons identified as
sexually violent predators, which does not provide for indeterminate
commitments." (Voter Information
Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (k), p. 127,
italics added; see Historical & Statutory Notes, 47C West's Ann.
Pen.Code (2008) foll. § 209, pp. 52–53.)
Proposition 83 does not violate the single-subject requirement of
article II, section 8, subdivision (d), of the California Constitution. (See People
v. Kisling (2011) 199 Cal.App.4th 687, 693-694; People v. Keister (2011) 198 Cal.App.4th 442, 451-452.)
B. Constitutional Challenges
to Indeterminate Term of Commitment for SVP's
1. Due Process
Appellant maintains that the revised
SVPA, by providing for an indeterminate term of commitment for persons
determined to be SVP's and placing the burden of proof for release on the
committee, "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." He insists that due process requires
"periodic and mandatory hearings in which the government bears the burden
of proof." He indicates that a
petition under section 6605, which places the burden of proof on the state
(§ 6605, subd. (d)) but requires administrative preauthorization
(§ 6605, subd. (b)), does not satisfy due process. He also argues that a petition for
conditional release or unconditional discharge under section 6608 does not
satisfy due process because, although it had no preauthorization requirement,
it assigns the burden of proof to the SVP committee, it allows the superior
court to summarily dismiss frivolous petitions, and it does not provide for the
appointment of a defense expert if the committee is indigent.
Substantially similar arguments were
raised, and addressed by the California Supreme Court, in McKee. (McKee, supra, 47 Cal.4th
at pp. 1188-1193.) The Supreme Court
reasoned that an initial finding beyond a reasonable doubt that a person meets
the definition of an SVP is "for present constitutional purposes, the
functional equivalent of the NGI acquittal in Jones [v. United States
(1983) 463 U.S. 354 [103 S.Ct. 3043].]"
(Id. at p. 1191.) It concluded that "as in
his initial commitment, must prove by a preponderance of the evidence that he
is no longer an SVP does not violate due process." (Ibid.)
As to the summary denial of a
frivolous petition under section 6608, the Supreme Court stated in
that 'indisputably has no merit.' (
Cal.3d 637, 650 [defining frivolous appeals].) . . . The fact that the statute
gives the court the authority to deny such petitions does not, of itself, serve
as an obstacle to the primary due process goal of ensuring that only those
individuals who continue to meet SVP criteria will remain involuntarily
committed." (McKee, supra, 47 Cal.4th
at p. 1192, fn. omitted.) It recognized
that SVP committees are not precluded "from challenging an erroneous
judicial determination that a petition is frivolous. [Citation.]" (Id.
at p. 1192, fn. 6.)
In McKee, the court recognized that "expert testimony is critical
in an SVP commitment proceeding . . . ." (Id.
at p. 1192.) It determined: "Given that the denial of access to expert
opinion when an indigent individual petitions on his or her own to be released
may pose a significant obstacle to ensuring that only those meeting SVP commitment
criteria remain committed, we construe section 6608, subdivision (a), read in
conjunction with section 6605, subdivision (a), to mandate appointment of an
expert for an indigent SVP who petitions the court for release." (Id.
at p. 1193.)
The Supreme Court observed:
"After Proposition 83, it is still the case that an individual may not be
held in civil commitment when he or
she no longer meets the requisites of such commitment. An SVP may be held, as the United States
Supreme Court stated under similar circumstances, 'as long as he is both
mentally ill and dangerous, but no longer.'
(Foucha v. Louisiana (1992)
504 U.S. 71, 77 [ . . . 112 S.Ct. 1780].)"
(Id. at p. 1193.) It held that the amended SVPA, as construed,
"does not violate the due process clause." (Ibid.) This court is bound by the Supreme Court's
holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
2. Equal Protection
a. Contentions on Appeal
Appellant Rotroff
argues that his indeterminate commitment as an SVP with limited judicial review
of his commitment violates the equal protection clause of the Fourteenth
Amendment because he is being treated more harshly than similarly situated
mentally disordered offenders (MDO's) (see Pen. Code, § 2960 et seq ) and
persons found not guilty of a crime by reasons of insanity (see Pen. Code,
§§ 1026, 1026.2, 1026.5). He compares the indeterminate term of
commitment under the SVPA to the one-year commitment term for MDO's. (See Pen. Code, § 2972, subd. (c); see
also Pen. Code, § 2970.) He points
out that insanity acquittees have a right under Penal Code section 1026.2 to be
heard on an application for release after 180 days of confinement.
bring a petition for conditional release or unconditional discharge under
section 6608 until at least one year from the date of the commitment
order. (§ 6608, subd. (c).) Such a petition may be denied without a
hearing if it is frivolous. (§ 6608,
subd. (a).)
Appellant Rotroff maintains that the disparate treatment of SVP's
"violates the equal protection guarantees of the
justified by a compelling state interest."
He does not argue that there is a compelling state interest at stake but
the state could have used less onerous means of accomplishing its objectives.
b. McKee and McKee II
In McKee, the
California Supreme Court recognized that persons civilly committed as MDO's or
persons whose commitments are extended after being found not guilty by reason
of insanity (NGI's) are subject to short, definite terms of commitment whereas
persons found to be SVP's are committed to an indeterminate term of commitment. (People v. McKee, supra, 47
Cal.4th at pp. 1202, 1207.) It concluded
that SVP's were similarly situated to these other groups of committees. (Id. at pp. 1204, 1207.) The court found "no question that, after
the initial commitment, an SVP is afforded different and less favorable
procedural protections than an MDO."
(Id. at p. 1202.) It found
merit in the contention that NGI's and SVP's are similarly situated for
purposes of equal protection. (Id.
at p. 1207.) The court declared that
where groups are similarly situated and "the state makes the terms of
commitment or recommitment substantially less favorable for one group than the
other, . . . it is required to give some justification for this
differential treatment." (Id.
at p. 1203.)
The Supreme Court
explained: "When a constitutional right, such as the right to liberty from
involuntary confinement, is at stake, the usual judicial deference to
legislative findings gives way to an exercise of independent judgment of the
facts to ascertain whether the legislative body ' "has drawn
reasonable inferences based on substantial evidence." ' [Citations.] . . . Therefore, the legislative
findings recited in the ballot initiative do not by themselves justify the
differential treatment of SVP's." (Id.
at pp. 1206-1207, italics added.)
The Supreme Court then
concluded in McKee that "neither the People nor the courts below
properly understood" the People's burden of justifying the differential
treatment of SVP's and the People should be given the opportunity to meet that
burden. (Id. at pp.
1207-1208.) The court remanded the
matter to the trial court "to determine whether the People, applying the
equal protection principles articulated in [In re Moye (1978) 22 Cal.3d
457] and related cases discussed in [its] opinion, can demonstrate the
constitutional justification for imposing on SVP's a greater burden than is
imposed on MDO's and NGI's in order to obtain release from commitment."
omitted.) It stated: "On remand, the government will have an
opportunity to justify Proposition 83's indefinite commitment provisions, at
least as applied to McKee, and demonstrate that they are based on a reasonable
perception of the unique dangers that SVP's pose rather than a special stigma
that SVP's may bear in the eyes of California's electorate." (Id. at p. 1210, fn. omitted.) The trial court must "determine not
whether the statute is wise, but whether it is constitutional." (Id. at p. 1211, fn. omitted.)
On remand,
"[f]ollowing a 21–day evidentiary hearing, the trial court concluded the
People met their burden to justify the disparate treatment of SVP's under the
standards set forth in McKee."
(McKee II, supra, 207 Cal.App.4th at p. 1330.) On appeal to the Fourth District, Division
One, McKee contended that "the trial court erred by finding the People met
that burden." (Ibid.) The appellate court concluded "the trial
court correctly found the People presented substantial evidence to support a
reasonable perception by the electorate that SVP's present a substantially
greater danger to society than do MDO's or NGI's, and therefore the disparate
treatment of SVP's under the Act is necessary to further the People's
compelling interests of public safety and humane treatment of the mentally
disordered." (Id. at pp.
1330-1331.)
Appellant Rotroff
contends that McKee II does not properly resolve his equal protection
claims because the appellate court (1) failed to conduct a proper de novo
review and (2) misapplied the strict scrutiny test. He urges this court to reject the conclusions
of McKee II.
McKee II
clearly stated that it was conducting a de novo review: "McKee asserts,
and we agree, that we review de novo the trial court's determination whether
the Act, as amended by Proposition 83, violates his equal protection
rights. We independently determine
whether the People presented substantial, factual evidence to support a
reasonable perception that SVP's pose a unique and/or greater danger to society
than do MDO's and NGI's, thereby justifying the disparate treatment of SVP's
under the Act. Although the trial court
heard the testimony of many witnesses and received in evidence many exhibits,
the instant constitutional question involved mixed questions of law and fact
that are predominantly legal, if not purely legal questions, which are subject
to de novo review. [Citations.] Furthermore, because in this case the trial
court presumably did not decide any disputed historical facts, but determined
only whether the People presented sufficient evidence to support a reasonable
perception that SVP's pose a greater danger to society, we are in as good a
position as the trial court to make that determination. Therefore, we apply an independent standard
in reviewing the trial court's order rejecting McKee's equal protection
claim." (McKee II, supra,
207 Cal.App.4th at p. 1338.)
Appellant claims that,
although the appellate court in McKee II stated it was conducting a de
novo review, it failed to do so. He
asserts that the appellate court erred by determining "whether the People
presented substantial evidence to support a reasonable inference or perception
that the Act's disparate treatment of SVP's is necessary to further compelling
state interests. [Citations.]" (207 Cal.App.4th at p. 1339.) Appellant also claims that although
"early in the opinion, the McKee II court took note of the evidence
presented by both sides, its actual analysis concerned only the prosecution's
evidence."
McKee II's
description of its review is entirely consistent with an independent, de novo
review of the evidence and the Supreme Court's opinion and directions in McKee. (See McKee, supra, 47 Cal.4th
at pp. 1206-1211.) Our careful review of
McKee II does not demonstrate that the appellate court failed to
independently consider all the evidence presented by the parties, including
McKee's evidence. As the Supreme Court
in McKee emphasized, "mere disagreement among experts will not
suffice to overturn the Proposition 83 amendments." (Id. at p. 1210.)
As to the strict
scrutiny standard of review, appellant Rotroff asserts that the appellate court
in McKee II misapplied the standard and the evidence did not "show
a compelling state interest that makes it necessary to impose upon SVP's a
burden of proof and a term of commitment different from that which applies to
MDO's and NGI's." The appellate
decision does not support these claims.
In McKee II,
the appellate court examined evidence in three areas: recidivism, the greater
trauma of victims of sexual offenses, and the diagnostic and treatment
differences. (McKee II, supra,
207 Cal.App.4th at pp. 1340-1347.) With respect to recidivism, the appellate
court concluded that the Static–99 evidence supported "by itself, a
reasonable inference or perception that SVP's pose a higher risk of
sexual reoffending than do MDO's or NGI's." (Id. at p. 1342.) That evidence included Department of Mental
Health data "showing a significant difference between the Static–99 scores
of SVP's and those of MDO's/NGI's."
(Id. at p. 1341.)
"The average Static–99 score for all SVP's civilly committed since
the passage of the amended Act in 2006 [was] 6.19," which "place[d]
SVP's in the 'high' risk category for sexual reoffense." (Ibid.) In contrast, the average Static–99 score for
MDO's at Patton State Hospital subject to sex offender registration
requirements in 2010 was only 3.6, which placed them "in the
'moderate-low' risk category for sexual reoffense." (Ibid.) The average Static–99 score for all patients
discharged from Atascadero State Hospital since January 1, 2010 and subject to
sex offender registration requirements, a group including MDO's and NGI's, was
4.6, which placed them "in the 'moderate-high' risk category for sexual
reoffense." (Id. at pp.
1341-1342.)
In McKee II,
the appellate court further concluded that there was "substantial evidence
supporting the reasonable perception that the nature of the trauma caused by
sex offenses is generally more intense or severe than the trauma caused by
nonsex offenses and is sometimes unique to sex offenses." (Id. at p. 1343.) It discussed the evidence supporting its
conclusion. (Id. at pp.
1342-1343.)
McKee II also
determined that there was "substantial evidence to support a reasonable
perception by the electorate that SVP's have significantly different diagnoses
from those of MDO's and NGI's, and that their respective treatment plans,
compliance, and success rates are likewise significantly different." (Id. at p. 1347.) The distinctions made SVP's more difficult to
treat and less likely to participate in treatment. (Ibid.) SVP's were "less likely to acknowledge
there is anything wrong with them, and more likely to be deceptive and
manipulative." (Ibid.)
The evidence discussed
in McKee II indicated that "[o]nly 2 percent of MDO's and NGI's
suffer from pedophilia or other paraphilias" whereas "nearly 90
percent of SVP's are diagnosed with pedophilia or other paraphilias." (McKee II, supra, 207
Cal.App.4th at p. 1344.) "Dr. David
Fennell, a psychiatrist and chief of forensics at Atascadero State Hospital,
testified that about 90 percent of MDO and NGI patients suffer from a psychotic
mental disorder" but "only 1 to 3 percent of SVP's suffer from a
psychosis." (McKee II, supra,
207 Cal.App.4th at p. 1344.)
There was also
evidence that "[p]araphilia typically remains stable or constant
throughout a patient's lifetime." (Id.
at p. 1345.) "Although there may be
an 'aging out' effect where patients' behavior or acting out on their fantasies
is decreased as they age, that does not mean their urges and fantasies are
similarly decreased. Patients with
paraphilia generally have a specific intent in selecting victims (e.g., boys
age seven to 10 years) and carefully plan and execute their offenses (e.g., by
'grooming' their victims before committing the offense). In contrast, patients with severe mental
illnesses generally are not that organized and commit impulsive or
opportunistic offenses." (Ibid.)
The appellate court in
McKee II reviewed the evidence of significant differences in the treatment
of severely mentally ill patients and patients with paraphilia. "Patients with severe mental illnesses
generally are first treated with psychotropic medications and then with
psychosocial support or intervention (e.g., therapy regarding communication
skills, social skills, and problem solving).
Their amenability to and compliance with treatment usually is very
good. Most severely mentally ill
patients are compliant with their medications and participate in treatment most
of the time. In comparison, the
treatment plans for patients with paraphilia generally involve psychosocial
intervention-like treatment. Medications
may decrease their sexual arousal, but not their deviant sexual interests. Treatment of paraphilia patients takes longer
than for other patients because paraphilia is so pervasive, affecting their
thoughts, beliefs, and interactions. . . . Also, a higher percentage of SVP's
(i.e., 10 to 15 percent) have antisocial or borderline personality disorders
(i.e., involving pathological lying and instability, etc.) than do severely
mentally ill patients, making their treatment more difficult. Also, unlike severely mentally ill patients,
'not very many' SVP's are ready to work and participate in treatment." (Id. at p. 1346.)
Dr. Fennell also provided
testimony regarding the differences between treatment plans for SVP's and those
for MDO's and NGI's. (Id. at p.
1345.) "MDO's, most of whom are
housed at Atascadero, are overwhelmingly treated with psychotropic medications,
resulting in their stabilization and amenability to psychosocial support
treatment. About two-thirds of MDO's and
NGI's comply with their treatment programs, typically resulting in their
decertification after about three years."
(Id. at pp. 1344-1345.) In
contrast, "SVP's treatment plans are not based on medications, but rather
on giving them the tools to limit their risk of sexually
reoffending." (Id. at p.
1345.) "The shortest time in which
an SVP has completed treatment is two and one-half years. Many other SVP's took up to five years to
complete treatment." (Ibid.) But "only about 25 percent of SVP's
participate in treatment." (Ibid.)
McKee II
concluded "the People on remand met their burden to present substantial
evidence, including medical and scientific evidence, justifying the amended
Act's disparate treatment of SVP's (e.g., by imposing indeterminate terms of
civil commitment and placing on them the burden to prove they should be
released). (McKee, supra,
47 Cal.4th at p. 1207.)" (McKee
II, 207 Cal.App.4th at p. 1347.) It
held that the SVPA as amended did not "violate McKee's constitutional
equal protection rights." (Id.
at p. 1348.) Appellant Rotroff has not
demonstrated that the appellate court's conclusions were incorrect.
We briefly address
Rotroff's assertion that McKee II erred by not analyzing whether the
state had proved that its disparate treatment of SVP's "constituted the
least restrictive means possible."
The appellate court in McKee II was unpersuaded that "the
equal protection clause requires that disparate treatment of similarly situated
classes be not only necessary to further a compelling state interest, but also
accomplished through the least restrictive means available." (McKee II, supra, 207
Cal.App.4th at pp. 1348-1349.) It did
not believe that "the electorate that passed Proposition 83 in 2006 was
required to adopt the least restrictive means available (e.g., a two-year or
other determinate term of civil commitment) in disparately treating SVP's and
furthering the compelling state interests of public safety and humane treatment
of the mentally disordered." (Id.
at p. 1349.)
While we agree that
the availability of equally efficacious but less burdensome means of
accomplishing a compelling state interest is a consideration in strict scrutiny
analysis,
the appellate court clearly understood that the strict scrutiny test required
the government to "show both a compelling state interest justifying the
disparate treatment and that the disparate treatment is necessary to
further that compelling state interest.
[Citations.]" (Ibid.) Narrow tailoring to serve a compelling state
interest does not require exhaustion of every conceivable alternative. (See Grutter v. Bollinger (2003) 539
U.S. 306, 339 [123 S.Ct. 2325].)
We presently have no indication
that some determinate term would equally or as effectively serve the compelling
state interests at stake and appellant Rotroff has not made any such
claim. Given the evidence presented in McKee
II that the vast majority of SVP's are diagnosed with pedophilia or other
paraphilias, a paraphilia ordinarily persists throughout a patient's lifetime,
treatment is not focused on medication, and most SVP's do not participate in
treatment (McKee II, supra, 207 Cal.App.4th at pp. 1344-1345), we
have no basis for concluding that an indeterminate term is not necessary to
further the compelling state interest in providing treatment to SVP's and
protecting the public or that there is any less burdensome alternative to
effectuate those interests.
name="_ftnref7" title="">[7] (See Hubbart v. Superior Court (1999)
19 Cal.4th 1138, 1153, fn. 20.)
In light of the
Supreme Court's clearly expressed intent to avoid an unnecessary multiplicity
of proceedings, the Supreme Court's denial of review in McKee II, and
our conclusions regarding the asserted flaws in McKee II, we find the equal protection claims advanced by
appellant are without merit and do not require a remand for a further
evidentiary hearing.
3. Ex Post
Facto and Double Jeopardy Prohibitions
Appellant contends that his indeterminate commitment under the SVPA is
punitive in purpose or effect and, therefore, violates the federal
constitutional prohibitions against ex post facto laws and double
jeopardy. He maintains that
consideration of the factors set forth in Kennedy
v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169 [83 S.Ct. 554] compels the
conclusion that the changes made to the SVPA by Proposition 83 are punitive in
effect.
The double jeopardy clause of "[t]he Fifth Amendment to the United
States Constitution, which applies to the states through the Fourteenth
Amendment (Benton v. Maryland (1969)
395 U.S. 784, 793-796 [89 S.Ct. 2056 . . .]), protects defendants
from repeated prosecution for the same offense [citations], by providing that
no person shall 'be subject for the same offense to be twice put in jeopardy of
life or limb. . . .' " (
678.) It "protects only against the
imposition of multiple criminal
punishments for the same offense, Helvering
v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see
also [U. S. ex rel. Marcus v. Hess
(1943) 317 U.S. 537,] 548-549, 63 S.Ct., at 386-387 ('Only' 'criminal
punishment' 'subject[s] the defendant to "jeopardy" within the
constitutional meaning'); Breed v. Jones,
421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ('In the
constitutional sense, jeopardy describes the risk that is traditionally
associated with a criminal prosecution') . . . ." (Hudson
v. U.S. (1997) 522 U.S. 93, 99 [118 S.Ct. 488].) "The Ex Post Facto Clause, which
' "forbids the application of any new punitive measure to a crime
already consummated," ' has been interpreted to pertain exclusively
to penal statutes. [Citation.]'' (Kansas
v. Hendricks (1997) 521 U.S. 346, 370 [117 S.Ct. 2072].) A judicial determination that a law is not
punitive "removes an essential prerequisite" for both double jeopardy
and ex post facto claims. (
In McKee, supra, 47 Cal.4th
1172, the Supreme Court concluded: "[T]he nonpunitive objectives of the
Act—treatment for the individual committed and protection of the public—remain
the same after Proposition 83. Moreover,
under the Act after Proposition 83, as before, a person is committed only for
as long as he meets the SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83 amendments at
issue here cannot be regarded to have changed the essentially nonpunitive
purpose of the Act." (
After considering "the seven-factor test articulated in
U.S. 144, 168-169 . . . 83 S.Ct. 554"
(McKee, supra, 47 Cal.4th at p.
1195), the Supreme Court held that "the Proposition 83 amendments do not
make the Act punitive and accordingly do not violate the ex post facto
clause." (Ibid.) This court is governed
by the Supreme Court's holding. (
supra, 57 Cal.2d at p. 455.) Its determination is also dispositive of
appellant Rotroff's double jeopardy claim.
C. First
Amendment Right of Petition
Appellant claims that the SVPA
violates his right under the first
amendment to the U.S. Constitution to petition the government for redress
of grievances because the act as amended limits his access to the courts and
does not provide "a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts." He points to section 6605, subdivision (b),
which requires administrative authorization before an SVP committee may
petition for conditional release or unconditional discharge under that
provision. He maintains that this
statutory limitation is "analogous to the regulation in
unconstitutional.
Section 6605's administrative authorization requirement is not
equivalent to the administrative regulation held unconstitutional in
S.Ct. 640]. The petitioner in Ex parte Hull was a state prisoner.
A prison official had refused to notarize Hull's petition for writ of
habeas corpus and accept it for mailing and prison guards had confiscated the
petition after Hull had delivered the papers to his father for mailing outside
the prison. (Id. at pp. 547-548.) Hull
was eventually able to pass a document to the Supreme Court through his
father. (Id. at p. 548.) In response
to the Supreme Court's order to show cause why leave to file a petition for
writ of habeas corpus should not be granted, the state prison warden invoked a
regulation that provided:
" 'All legal documents, briefs, petitions, motions, habeas
corpus proceedings and appeals will first have to be submitted to the
institutional welfare office and if favorably acted upon be then referred to
Perry A. Maynard, legal investigator to the Parole Board, Lansing, Michigan. Documents submitted to Perry A[.] Maynard, if
in his opinion are properly drawn, will be directed to the court designated or
will be referred back to the inmate.' " (Id.
at pp. 548-549.)
The Supreme Court in Hull
held that the prison regulation was invalid because "the state and its
officers may not abridge or impair petitioner's right to apply to a federal
court for a writ of habeas corpus."
(Id. at p. 549.) The court stated: "Whether a petition
for writ of habeas corpus addressed to a federal court is properly drawn and
what allegations it must contain are questions for that court alone to
determine. [Citations.]" (Ibid.) In the present case, no administrative
regulation limits a committed person's right to apply for habeas corpus relief
in federal or state court. (See
§ 7250 [any person who has been committed to a state hospital for the
mentally disordered is entitled to a writ of habeas corpus upon proper
application].)
Appellant has provided no authority to suggest that the constitutional
right to petition government restricts the power to legislate. The scope of any statutory right to petition
under section 6605 or section 6608 is delineated by the legislating body.
We also observe that, although the statutory right to petition under
section 6605, subdivision (b), is conditional, section 6608, subdivision (a),
provides a right to petition that is not dependent upon administrative
authorization. Appellant Rotroff
maintains that the right to petition under section 6608 does not offer
"meaningful access to the courts" because it does not provide for
appointment of a medical expert that a petitioner would need to prove the
petition. This claim has been completely
eliminated by McKee's interpretation
of section 6608 as including the right to "appointment of an expert for an
indigent SVP who petitions the court for release." (McKee,
supra, 47 Cal.4th at p. 1193.)
Appellant Rotroff also
complains that section 6608, subdivision (a), permits courts to summarily deny
frivolous petitions filed under that section.
He has cited no authority for the proposition that the constitutional
right to petition forces courts to hear and decide frivolous petitions.
The Supreme Court held in Bounds v. Smith (1977) 430 U.S. 817, 828 [97 S.Ct. 1491] that "the fundamental constitutional
right of access to the courts requires prison authorities to assist inmates in
the preparation and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons trained in the
law." (Lewis v. Casey (1996) 518 U.S. 343, 354 [116 S.Ct. 2174].) "The right that Bounds
acknowledged was the (already well-established) right of access to the
courts. E.g., Bounds, 430 U.S., at
817, 821, 828, 97 S.Ct., at 1492-1493, 1494, 1498. In the cases to which Bounds traced
its roots, [the Supreme Court] had protected that right by prohibiting state
prison officials from actively interfering with inmates' attempts to prepare
legal documents, e.g., Johnson v. Avery, 393 U.S. 483, 484, 489-490, 89
S.Ct. 747, 748, 750-751, 21 L.Ed.2d 718 (1969), or file them, e.g., Ex parte
Hull, 312 U.S. 546, 547-549, 61 S.Ct. 640, 640-642, 85 L.Ed. 1034 (1941)
. . . ." (
In his concurring opinion
in Bounds, Justice Powell stated:
"The decision today recognizes that a prison inmate has a constitutional
right of access to the courts to assert such procedural and substantive rights
as may be available to him under state and federal law. It does not purport to pass on the kinds of
claims that the Constitution requires state or federal courts to
hear." (Bounds v. Smith, supra,
430 U.S. at p. 833.)
In Lewis v. Casey, supra,
518 U.S. 343, the U.S. Supreme Court indicated that an actual injury was a
"constitutional perquisite" for claiming a violation of the right to
court access (id. at pp. 351-352) and
an inmate was required to "demonstrate that a nonfrivolous
impeded" (id. at p. 353, fns.
omitted). The court noted that
"[d]epriving someone of a frivolous claim . . . deprives him of nothing at
all." (Id. at p. 353, fn. 3.)
In Christopher v. Harbury (2002) 536 U.S. 403 [122 S.Ct. 2179], a
widow brought a complaint alleging that official deception concerning her late
husband, who had been held and tortured in another country, had denied her
"access to the courts by leaving her without information, or reason to
seek information, with which she could have brought a lawsuit that might have
saved her husband's life." (
access cases "rest on the recognition that the right [to court access] is
ancillary to the underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court." (Id.
at p. 415.) It then said: "We
indicated as much in our most recent case on denial of access,
actions to remove roadblocks to future litigation, the named plaintiff must
identify a 'nonfrivolous,' 'arguable' underlying claim [citation] and we have
been given no reason to treat backward-looking access claims any differently in
this respect." (
In the different context
of defamation, the U.S. Supreme Court has considered "whether the Petition
Clause of the First Amendment provides absolute immunity to a defendant charged
with expressing libelous and damaging falsehoods in letters to the President of
the United States." (
480 [105 S.Ct. 2787].) In determining
that the petition clause did not provide absolute immunity from damages for
libel, the Supreme Court observed that its "decisions interpreting the
Petition Clause in contexts other than defamation" did not "indicate
that the right to petition is absolute."
(Id. at p. 484.) It noted, "[f]or example, filing a
complaint in court is a form of petitioning activity; but 'baseless litigation
is not immunized by the First Amendment right to petition.' Bill
Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161,
2170, 76 L.Ed.2d 277 (1983); accord, California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609,
613, 30 L.Ed.2d 642 (1972)." (
The SVPA as amended by Proposition 83 does not deny appellant the right
of meaningful access to the courts.
DISPOSITION
The order of commitment filed October 22, 2008 is affirmed.
_______________________________
ELIA,
J.
WE CONCUR:
___________________________
RUSHING, P. J.
___________________________
PREMO, J.
All further statutory references are to Welfare and Institutions Code
unless otherwise specified.
take judicial notice of the Voter Information Guide prepared by the Secretary
of State for the November 7, 2006 election insofar as it concerns Proposition
83. (Evid. Code, §§ 452, 459.)
