Citation 47 Cal. 4th 1172, 223 P.3d 566, 104 Cal. Rptr. 3d 427
People v. McKee
Filed 1/28/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S162823
v.
Ct.App. 4/1 D050554
RICHARD MCKEE,
San Diego County
Defendant and Appellant.
Super. Ct. No. MH97752
Proposition 83, passed by the voters in November of 2006, modified the terms by
which sexually violent predators (SVP‟s) can be released from civil commitment under
the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.).
In essence, it changes the commitment from a two-year term, renewable only if the
People prove to a jury beyond a reasonable doubt that the individual still meets the
definition of an SVP, to an indefinite commitment from which the individual can be
released if he proves by a preponderance of the evidence that he no longer is an SVP.
Defendant, who is subject to indeterminate commitment pursuant to Proposition
83, challenges the law on several constitutional grounds: that it violates the due process
and equal protection clauses of the Fourteenth Amendment of the United States
Constitution and that it violates the ex post facto clause, article I, section 10 of the United
States Constitution. Like the Court of Appeal, we conclude that defendant‟s due process
and ex post facto challenges are without merit. As for the equal protection challenge, we
conclude that the state has not yet carried its burden of demonstrating why SVP‟s, but not
1
any other ex-felons subject to civil commitment, such as mentally disordered offenders,
are subject to indefinite commitment. As explained below, we remand to the trial court
to permit the People the opportunity to justify the differential treatment in accord with
established equal protection principles. (See In re Moye (1978) 22 Cal.3d 457.)
I.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2004, a petition was filed to establish Richard McKee as an SVP
within the meaning of the Act. The petition alleged McKee was “a person who has been
convicted of a sexually violent offense against two or more victims for which he was
sentenced and who has a diagnosed mental disorder that makes him a danger to the health
and safety of others, in that it is likely he will engage in sexually violent predatory
criminal behavior.” It alleged he had been convicted of two counts of committing lewd
and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One
victim was an 11-year-old girl and the other was an eight-year-old girl.1 The petition
requested that McKee be committed to the custody of the State Department of Mental
Health (DMH) for a period of two years.
On February 16, 2007, McKee demurred to the petition on the ground that the Act,
as amended on November 7, 2006, by the voters‟ passage of Proposition 83, was
unconstitutional. The trial court overruled the demurrer.
On March 5, 2007, an amended petition was filed restating the original petition‟s
factual allegations and requesting that McKee be committed to an indeterminate term
pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a
verdict finding McKee was an SVP within the meaning of the Act. On March 13, the
1
At trial, the evidence showed McKee had been convicted in 1991 for committing
lewd acts against an 11-year-old babysitter and in 1998 for committing lewd acts against
his eight-year-old niece.
2
trial court issued an order committing McKee to the custody of the DMH for an
indeterminate term pursuant to the Act.
McKee timely filed a notice of appeal. The court rejected McKee‟s claims that the
indeterminate commitment instituted by Proposition 83 violated federal or state due
process, ex post facto or equal protection provisions. The court also rejected McKee‟s
challenge to the sufficiency of the evidence and to the adequacy of the jury instructions.
We granted review, and subsequently limited the issues to whether the Act as amended
by Proposition 83 violated McKee‟s constitutional rights under the due process, equal
2
protection, and ex post facto clauses.
II.
THE SVP ACT AND PROPOSITION 83
The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the
involuntary civil commitment for a two-year term of confinement and treatment of
persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603,
subd. (d), 6604),3 are found beyond a reasonable doubt to be an SVP (former § 6604).
(People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19
Cal.4th 1138, 1143, 1147 (Hubbart).) A person‟s commitment could not be extended
beyond that two-year term unless a new petition was filed requesting a successive two-
year commitment.4 (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29
2
McKee does not contend that the amended Act was not intended to apply to
someone in his situation, who was committed as an SVP after the passage of Proposition
83. This is therefore not a case in which Proposition 83 is being imposed retroactively.
(See People v. Litmon (2008) 162 Cal.App.4th 383, 411-412 [concluding Prop. 83 does
not retroactively apply to indefinitely extend the two-year commitment of an SVP
imposed prior to the Act‟s amendment].)
3
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
4
Former section 6604 provided in pertinent part: “[T]he person shall not be kept in
actual custody longer than two years unless a subsequent extended commitment is
(footnote continued on next page)
3
Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial would be
conducted at which the People again had the burden to prove beyond a reasonable doubt
that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e).) As was
stated in People v. Munoz (2005) 129 Cal.App.4th 421, 429: “[A]n SVP extension
hearing is not a review hearing. . . . An SVP extension hearing is a new and independent
proceeding at which . . . the [People] must prove the [committed person] meets the [SVP]
criteria, including that he or she has a currently diagnosed mental disorder that renders
the person dangerous.”
As originally enacted, an SVP was defined as “a person who has been convicted of
a sexually violent offense against two or more victims for which he or she received a
determinate sentence and who has a diagnosed mental disorder that makes the person a
danger to the health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” (Former § 6600, subd. (a).) A “sexually violent
offense” included a Penal Code section 288 lewd act on a child under age 14. (Former
§ 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) Under the Act, a person is
“likely” to engage in sexually violent criminal behavior (i.e., reoffend) if he or she
“presents a substantial danger, that is, a serious and well-founded risk, that he or she will
commit such crimes if free in the community.” (People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 922.)
The Act was “designed to ensure that the committed person does not „remain
confined any longer than he suffers from a mental abnormality rendering him unable to
(footnote continued from previous page)
obtained from the court incident to the filing of a new petition for commitment under this
article or unless the term of commitment changes pursuant to subdivision (e) of Section
6605.”
4
control his dangerousness.‟ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1177.) The
Act therefore provides “two ways a defendant can obtain review of his or her current
mental condition to determine if civil confinement is still necessary. [First,] [s]ection
6608 permits a defendant to petition for conditional release to a community treatment
program. . . . [Second,] [s]ection 6605 [requires] an annual review of a defendant‟s
mental status that may lead to unconditional release.” (People v. Cheek (2001) 25
Cal.4th 894, 898, fn. omitted.)
On November 7, 2006, California voters passed Proposition 83, entitled “The
Sexual Predator Punishment and Control Act: Jessica‟s Law” amending the Act effective
November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the
problems posed by sex offenders. It increases penalties for sex offenses, both by altering
the definition of some sex offenses and by providing longer penalties for some offenses
as well as modifying probation and parole provisions: it requires a GPS tracking device
for felons subject to such registration for the remainder of their lives; it prohibits a
registered sex offender from living within 2,000 feet of schools and parks; and it changes
the SVP Act by reducing the number of sexually violent offenses that qualify an offender
for SVP status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7,
2006) analysis by the Legislative Analyst of Prop. 83, pp. 43-44.) Proposition 83 also
changes an SVP commitment from a two-year term to an indefinite commitment. It is
this latter provision with which this case is concerned and which will be described in
more detail below.
Pursuant to Proposition 83, section 6604, which had prescribed a two-year term
for SVP‟s, now provides in relevant part: “If the court or jury determines that the person
is a sexually violent predator, the person shall be committed for an indeterminate term to
the custody of the DMH for appropriate treatment and confinement . . . .” (Italics added.)
Proposition 83 did not change section 6604‟s requirement that a person‟s initial
5
commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition
83, section 6605 continues to require current examinations of a committed SVP at least
once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to
section 6605 regarding the DMH‟s obligations: Pursuant to section 6605, subdivision (a),
the DMH now files an annual report in conjunction with its examination of SVP‟s that
“shall include consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional release to a less
restrictive alternative or an unconditional release is in the best interest of the person and
conditions can be imposed that would adequately protect the community.” Subdivision
(b) now provides that “[i]f the [DMH] determines that either: (1) the person‟s condition
has so changed that the person no longer meets the definition of a sexually violent
predator, or (2) conditional release to a less restrictive alternative is in the best interest of
the person and conditions can be imposed that adequately protect the community, the
director shall authorize the person to petition the court for conditional release to a less
restrictive alternative or for an unconditional discharge.” (§ 6605, subd. (b).) If the state
opposes the director‟s petition, then, as under the pre-Proposition 83 statute, it must prove
beyond a reasonable doubt that the person still meets the definition of an SVP.
In the event the DMH does not authorize the committed person to file a petition
for release pursuant to section 6605, the person nevertheless may file, as was the case
with the pre-Proposition 83 Act, a petition for conditional release for one year and
subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).)
Section 6608, subdivision (i), which was also unamended by the Act, provides: “In any
hearing authorized by this section, the petitioner shall have the burden of proof by a
preponderance of the evidence.” (Italics added.) After a trial court denies a section 6608
petition, “the person may not file a new application until one year has elapsed from the
date of the denial.” (§ 6608, subd. (h).)
6
In short, under Proposition 83, an individual SVP‟s commitment term is
indeterminate, rather than for a two-year term as in the previous version of the Act. An
SVP can only be released conditionally or unconditionally if the DMH authorizes a
petition for release and the state does not oppose it or fails to prove beyond a reasonable
doubt that the individual still meets the definition of an SVP, or if the individual,
petitioning the court on his own, is able to bear the burden of proving by a preponderance
of the evidence that he is no longer an SVP. In other words, the method of petitioning the
court for release and proving fitness to be released, which under the former Act had been
the way an SVP could cut short his two-year commitment, now becomes the only means
of being released from an indefinite commitment when the DMH does not support
release.5
III.
DISCUSSION
A. Due Process Claim
McKee contends his indefinite involuntary commitment as an SVP under the Act
violates his federal constitutional right to due process of law. There is no question that
civil commitment itself is constitutional so long as it is accompanied by the appropriate
5
Proposition 83‟s findings state: “The People find and declare each of the
following: [¶] . . . [¶] (k) 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. California
automatically allows for a jury trial every two years irrespective of whether there is any
evidence to suggest or prove that the committed person is no longer a sexually violent
predator. As such, this act allows California to protect the civil rights of those persons
committed as a sexually violent predator while at the same time protect society and the
system from unnecessary or frivolous jury trial actions where there is no competent
evidence to suggest a change in the committed person.” (Voter Information Guide, Gen.
Elec. (Nov. 7, 2006) text of Prop. 83, § 2, p. 127; see Historical & Statutory Notes, 47C
West‟s Ann. Pen. Code (2008) foll. § 209, pp. 52-53.)
7
constitutional protections. “States have in certain narrow circumstances provided for the
forcible civil detainment of people who are unable to control their behavior and who
thereby pose a danger to the public health and safety. [Citations.] . . . It . . . cannot be
said that the involuntary civil confinement of a limited subclass of dangerous persons is
contrary to our understanding of ordered liberty.” (Kansas v. Hendricks (1997) 521 U.S.
346, 356-357 (Hendricks).) In order to properly justify a civil commitment, “[a] finding
of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to
justify indefinite involuntary commitment. We have sustained civil commitment statutes
when they have coupled proof of dangerousness with the proof of some additional factor,
such as a „mental illness‟ or „mental abnormality.‟ [Citations.]” (Id. at p. 358.)
McKee contends that it is the fact that his commitment is now indefinite, and that
it is his burden to show by a preponderance of the evidence that he is no longer an SVP,
that violates his federal due process rights. In making this argument, he relies in large
part on Addington v. Texas (1979) 441 U.S. 418 (Addington).) In Addington, the court
held unconstitutional a civil involuntary commitment statute that authorized an indefinite
commitment when the state proved by a preponderance of the evidence that the
individual was mentally incompetent. (Id. at pp. 419-422.) As Addington explained:
“The state has a legitimate interest under its parens patriae powers in providing care to
its citizens who are unable because of emotional disorders to care for themselves; the
state also has authority under its police power to protect the community from the
dangerous tendencies of some who are mentally ill. Under the Texas Mental Health
Code, however, the State has no interest in confining individuals involuntarily if they are
not mentally ill or if they do not pose some danger to themselves or others.” (Addington,
supra, 441 U.S. at p. 426.) The Addington court assessed the risk of improperly
subjecting an individual to civil commitment: “At one time or another every person
exhibits some abnormal behavior which might be perceived by some as symptomatic of a
8
mental or emotional disorder, but which is in fact within a range of conduct that is
generally acceptable. Obviously, such behavior is no basis for compelled treatment and
surely none for confinement. However, there is the possible risk that a factfinder might
decide to commit an individual based solely on a few isolated instances of unusual
conduct. Loss of liberty calls for a showing that the individual suffers from something
more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of
proof is one way to impress the factfinder with the importance of the decision and
thereby perhaps to reduce the chances that inappropriate commitments will be ordered.
[¶] The individual should not be asked to share equally with society the risk of error when
the possible injury to the individual is significantly greater than any possible harm to the
state.” (Id. at pp. 426-427.)
The Addington court therefore concluded that “the individual‟s 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.” (Addington, supra, 441 U.S. at p. 427.) It held that due
process required proof by clear and convincing evidence at the appellant‟s initial civil
commitment hearing. (Id. at p. 433.)
McKee argues Addington requires the state to prove by at least clear and
convincing evidence in not only the first commitment hearing but periodically at
subsequent commitment hearings as well, and that therefore section 6608, subdivision (i)
violates due process by imposing on the petitioner the burden of proving by a
preponderance of the evidence that he is entitled to release. As explained below, the
United States Supreme Court case law decided after Addington leads to the conclusion
that the clear and convincing evidence standard does not apply to subsequent
commitment proceedings for SVP‟s.
9
The primary case relied on by the People is Jones v. United States (1983) 463 U.S.
354 (Jones). Jones considered a District of Columbia statute that governed civil
commitment of those who had been adjudged not guilty by reason of insanity of criminal
charges (NGI‟s). Under that statutory scheme, a defendant was required to prove his
affirmative defense of insanity by a preponderance of the evidence. (Id. at p. 356, fn. 1.)
After his acquittal by reason of insanity, another statute provided for his immediate
commitment, with a hearing required within 50 days to determine whether he was eligible
for release. At the hearing, he had “the burden of proving by a preponderance of the
evidence that he [was] no longer mentally ill or dangerous. [Citation.]” (Id. at p. 357.)
If he did not meet that burden at the 50-day hearing, he was “entitled [by statute] to a
judicial hearing every six months at which he may establish by a preponderance of the
evidence that he is entitled to release. [Citation.]” (Id. at p. 358, fn. omitted.)
The court rejected a due process challenge to the statute. Congress had
determined “that a criminal defendant found not guilty by reason of insanity in the
District of Columbia should be committed indefinitely to a mental institution for
treatment and the protection of society. [Citations.]” (Jones, supra, 463 U.S. at pp. 361-
362.) An NGI determination “establishe[d] two facts: (i) the defendant committed an act
that constitutes a criminal offense, and (ii) he committed the act because of mental
illness.” (Id. at p. 363.) Jones stated: “Congress has determined that these findings
constitute an adequate basis for hospitalizing the acquittee as a dangerous and mentally ill
person. [Citations.] We cannot say that it was unreasonable and therefore
unconstitutional for Congress to make this determination. [¶] The fact that a person has
been found, beyond a reasonable doubt, to have committed a criminal act certainly
indicates dangerousness. [Citation.] Indeed, this concrete evidence [of commission of a
criminal act] generally may be at least as persuasive as any predictions about
10
dangerousness that might be made in a civil-commitment proceeding.” (Id. at p. 364, fns.
omitted.)
Distinguishing Addington, the court explained that in equating NGI commitment
with the ordinary civil commitment at issue in Addington, “petitioner ignores important
differences between the class of potential civil-commitment candidates and the class of
insanity acquittees that justify differing standards of proof. The Addington Court
expressed particular concern that members of the public could be confined on the basis of
„some abnormal behavior which might be perceived by some as symptomatic of a mental
or emotional disorder, but which is in fact within a range of conduct that is generally
acceptable.‟ [Citations.] . . . But since automatic commitment under [the District of
Columbia‟s NGI commitment statute] follows only if the acquittee himself advances
insanity as a defense and proves that his criminal act was a product of his mental illness,
there is good reason for diminished concern as to the risk of error. More important, the
proof that he committed a criminal act as a result of mental illness eliminates the risk that
he is being committed for mere „idiosyncratic behavior[.]‟ [Citation.]” (Jones, supra,
463 U.S. at p. 367, fns. omitted.) Jones therefore concluded that “concerns critical to our
decision in Addington are diminished or absent in the case of insanity acquittees.
Accordingly, there is no reason for adopting the same standard of proof in both cases. . . .
The preponderance of the evidence standard comports with due process for commitment
of insanity acquittees.” (Jones, supra, 463 U.S. at pp. 367-368.)
Although McKee was not found not guilty by reason of insanity, he has been
found beyond a reasonable doubt in his initial commitment to meet the definition of an
SVP. That finding is, for present constitutional purposes, the functional equivalent of the
NGI acquittal in Jones. As in Jones, McKee has already been found not only to have
previously committed the requisite criminal acts but was found beyond a reasonable
doubt to have “a diagnosed mental disorder that makes the person a danger to the health
11
and safety of others in that it is likely that he or she will engage in sexually violent
criminal behavior.” (§ 6600, subd. (a).) Therefore, as in Jones, the danger recognized in
Addington “that members of the public could be confined on the basis of „some abnormal
behavior which might be perceived by some as symptomatic of a mental or emotional
disorder, but which is in fact within a range of conduct that is generally acceptable‟ ” or
“for mere „idiosyncratic behavior‟ ” (Jones, supra, 463 U.S. at p. 367) is greatly
diminished. Accordingly, as in Jones, the requirement that McKee, after his initial
commitment, must prove by a preponderance of the evidence that he is no longer an SVP
does not violate due process.
McKee seeks to distinguish Jones, arguing that in the latter case, an individual was
entitled to a hearing every six months, whereas there is no such entitlement for the SVP
after Proposition 83. In fact, section 6608, subdivision (h) permits an SVP to file a new
petition for release as early as a year after the previous petition was denied. The statute
does permit the court to deny a hearing if the petition is frivolous. Section 6608,
subdivision (a) provides in pertinent part: “If a person has previously filed a petition for
conditional release without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the petition was frivolous
or that the committed person‟s condition had not so changed that he or she would not be a
danger to others in that it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the community, then the
court shall deny the subsequent petition unless it contains facts upon which a court could
find that the condition of the committed person had so changed that a hearing was
warranted. Upon receipt of a first or subsequent petition from a committed person
without the concurrence of the director, the court shall endeavor whenever possible to
review the petition and determine if it is based upon frivolous grounds and, if so, shall
deny the petition without a hearing.”
12
McKee contends that the court‟s discretion to deny a petition without a hearing as
frivolous denies due process. We disagree. A frivolous petition is one that “indisputably
has no merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [defining frivolous
appeals].) McKee cites no authority for the proposition that due process is violated by
not granting such petitions a hearing. 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.6
McKee further contends that his lack of access to mental health experts to
challenge his continuing commitment violates due process. As he points out, although
section 6605, subdivision (d) mandates the appointment of experts when the DMH
authorizes an indigent inmate to petition for release, section 6608, subdivision (a) merely
provides that petitioner has the right to counsel, with no mention of experts, when he
petitions without the DMH‟s approval.
McKee is correct that expert testimony is critical in an SVP commitment
proceeding, in which the primary issue is not, as in a criminal trial, whether the individual
committed certain acts, but rather involves a prediction about the individual‟s future
behavior. If the state involuntarily commits someone on the basis of expert opinion about
future dangerousness, places the burden on that person to disprove future dangerousness,
and then makes it difficult for him to access to his own expert because of his indigence to
6
Of course, nothing we say here precludes an individual from challenging an
erroneous judicial determination that a petition is frivolous. (See People v. Collins
(2003) 110 Cal.App.4th 340, 350 [“if the defendant‟s position has some merit on the
issue of whether he or she may qualify for conditional release, the statute requires that the
court provide the defendant a hearing on the matter”].)
13
challenge his continuing commitment, that schema would indeed raise a serious due
process concern.
We do not believe, however, that the statute needs to be interpreted in this narrow
manner. It is true that section 6608, subdivision (a), unlike section 6605, subdivision (d),
does not explicitly provide for experts when an SVP petitions the court for release. But
section 6605, subdivision (a) states that in conjunction with the DMH‟s examination of
an SVP‟s mental condition, which must occur “at least once every year,” an SVP who is
indigent may request and the court may appoint “a qualified expert or professional person
to examine him or her.” Although section 6605, subdivision (a) does not explicitly
provide for the appointment of the expert in conjunction with a section 6608 petition,
such appointment may be reasonably inferred. As is clear from the context, the annual
examination authorized by section 6605, subdivision (a), occurs not solely or even
primarily for the purpose of assessing the SVP‟s treatment needs, but mainly for
determining whether involuntary commitment is still required, or whether the SVP has
sufficiently changed as a result of treatment to be released. There is no indication that the
Legislature that authorized these expert appointments on behalf of an indigent SVP
believed that such experts should be disallowed from testifying at an SVP‟s section 6608
hearing, nor that an SVP‟s indigence should serve as an obstacle to such testimony. On
the contrary, the statute appears to encourage state-funded qualified expert appointed for
a petitioner‟s benefit so as to ensure that the commitment lasts no longer than is
necessary.
We construe statutes when reasonable to avoid difficult constitutional issues. (See
In re Smith (2008) 42 Cal.4th 1251, 1269.) 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
14
dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.) 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.
Construing the amended Act in the above manner, we conclude it does not violate
the due process clause.
B. Ex Post Facto Claim
McKee also contends his indefinite commitment under the terms of Proposition 83
violated the federal constitutional prohibition against ex post facto laws because it is
punitive and was applied to his conduct prior to its enactment. We disagree.
Article I, section 10 of the United States Constitution provides: “No state shall . . .
pass any . . . ex post facto law . . . .” The ex post facto clause prohibits only those laws
that “retroactively alter the definition of crimes or increase the punishment for criminal
acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43.)
In Hubbart, supra, 19 Cal.4th 1138, we made clear, in considering an ex post facto
challenge to the pre-Proposition 83 version of the Act, that the Legislature had
“disavowed any „punitive purpose[],‟ and declared its intent to establish „civil
commitment‟ proceedings in order to provide „treatment‟ to mentally disordered
individuals who cannot control sexually violent criminal behavior. [Citations.] The
Legislature also made clear that, despite their criminal record, persons eligible for
commitment and treatment as SVP‟s are to be viewed „not as criminals, but as sick
persons.‟ [Citation.] Consistent with these remarks, the [Act] was placed in the Welfare
and Institutions Code, surrounded on each side by other schemes concerned with the care
and treatment of various mentally ill and disabled groups.” (Hubbart, at p. 1171.)
15
In concluding that our Act is not punitive, and therefore not within the scope of the
ex post facto clause, we relied on the United States Supreme Court‟s similar conclusion
in Hendricks with respect to Kansas‟ Sexually Violent Predator Act. As the court stated:
“Far from any punitive objective, the confinement‟s 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. [Citation.] If, at any time, the
confined person is adjudged „safe to be at large,‟ he is statutorily entitled to immediate
release. [Citation.]” (Hendricks, supra, 521 U.S. at pp. 363-364, italics added.)
We therefore concluded the Act was not punitive because “[v]iewed as a whole,
the SVPA is also designed to ensure that the committed person does not „remain confined
any longer than he suffers from a mental abnormality rendering him unable to control his
dangerousness.‟ ” (Hubbart, supra, 19 Cal.4th at p. 1177, citing Hendricks, supra, 521
U.S. at p. 364.) It is true that, in elaborating on this statement, we pointed to the fact that
“each period of commitment is strictly limited and cannot be extended unless the state
files a new petition and again proves, beyond a reasonable doubt, that the person is
dangerous and mentally impaired. (§ 6604.)” (Hubbart, supra, 19 Cal.4th at p. 1177.)
But nothing in Hubbart suggests that these requirements are indispensable to shielding
the Act from an ex post facto challenge. In fact, the 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.
McKee also argues that Proposition 83, taken as a whole, including increased
provisions regarding the punishment for those convicted of sexually related offenses,
evinces a punitive purpose. Obviously, the portion of Proposition 83 that concerns
16
increased punishment for sex offenses is punitive. But the fact that the amendments to
the civil commitment statute are part of the same legislative enactment as amendments to
the Penal Code does not render the former amendments punitive.
McKee also argues the seven-factor test articulated in Kennedy v. Mendoza-
Martinez (1963) 372 U.S. 144, 168-169, applies to invalidate the Proposition 83
amendments at issue here. As the United States Supreme Court has explained, the
Mendoza-Martinez factors provide “a useful framework. These factors, which migrated
into our ex post facto case law from double jeopardy jurisprudence, have their earlier
origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder
and the Ex Post Facto Clauses. Because the Mendoza-Martinez factors are designed to
apply in various constitutional contexts, we have said they are „neither exhaustive nor
dispositive‟ [citations], but are „useful guideposts‟ [citation]. The factors most relevant to
our analysis are whether, in its necessary operation, the regulatory scheme: has been
regarded in our history and traditions as a punishment; imposes an affirmative disability
or restraint; promotes the traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect to this purpose.” (Smith v. Doe (2003)
538 U.S. 84, 97.)7
7
The Smith v. Doe court, which addressed whether the imposition of a registration
requirement for sex offenders fell within the scope of the ex post facto clause, explained
that “[t]he two remaining Mendoza-Martinez factors — whether the regulation comes
into play only on a finding of scienter and whether the behavior to which it applies is
already a crime — are of little weight in this case. The regulatory scheme applies only to
past conduct, which was, and is, a crime. This is a necessary beginning point, for
recidivism is the statutory concern. The obligations the statute imposes are the
responsibility of registration, a duty not predicated upon some present or repeated
violation.” (Smith v. Doe, supra, 538 U.S. at p. 105.) In the case of the SVP Act at issue
here, although the trigger for eligibility is a certain type of past criminal conduct, the
commitment cannot be effectuated without a determination of a current mental disorder
(footnote continued on next page)
17
Although one of the five factors — affirmative restraints on liberty — is present
here, as it is with all involuntary civil commitments, the other four factors go against
McKee: (1) civil commitment has historically been imposed nonpunitively on those
whose inability to control their behavior poses a danger to the public (see Hendricks,
supra, 521 U.S. at p. 357); (2) as discussed above, the amendments to the SVP Act under
consideration here do not alter the Act‟s nonpunitive purpose of treatment and public
protection; (3) the civil commitment has a rational connection with those purposes; and
(4) even with indefinite commitment and alterations in the burden and standard of proof,
the commitment authorized by the Act is not excessive and is designed to last only as
long as that person meets the definition of an SVP. We therefore conclude that the
Proposition 83 amendments do not make the Act punitive and accordingly do not violate
the ex post facto clause.
C. Equal Protection Clause
McKee contends his involuntary commitment as an SVP under the Act, as
amended by Proposition 83 in 2006, violated his federal constitutional right to equal
protection under the law because it treats SVP‟s significantly less favorably than those
similarly situated individuals civilly committed under other statutes. We conclude his
claim has some merit and will require remand for further proceedings.
In re Moye, supra, 22 Cal.3d 457 (Moye) is highly relevant to assessing McKee‟s
claim and will be discussed at length. Moye followed In re Franklin (1972) 7 Cal.3d
126, in which the court held that a person who has been found not guilty by reason of
(footnote continued from previous page)
and future dangerousness. The above two Mendoza-Martinez factors therefore do not
count in McKee‟s favor.
18
insanity can be civilly committed for at least the maximum term of the underlying
offense, and may only be released from commitment during that term if he proves by a
preponderance of the evidence that he is no longer a danger to the health and safety of
himself or others. (Id. at p. 148.) As Moye summarized, we explained in Franklin “that
by reason of the prior judicial determination of insanity, „persons acquitted by reason of
insanity fall within a special class, thereby providing a rational basis for differences in the
treatment afforded them. . . . [¶] . . . “The special interest which the public has acquired
in the confinement and release of people in this exceptional class results from the fact
that there has been a judicial determination that they have already endangered the public
safety and their own as a result of their mental conditions as distinguished from people
civilly committed because of only potential danger.” ‟ ” (Moye, supra, at pp. 462-463.)
The question presented in Moye, however, was whether the commitment can continue
under the same rules after that maximum term, requiring an individual to prove by a
preponderance of evidence that he was no longer in need of such commitment. (Moye,
supra, 22 Cal.3d at p. 460.)
This court concluded that such extension of the commitment would violate equal
protection. The court compared NGI commitment to commitment under the former
Mentally Disordered Sex Offender (MDSO) Act, the forerunner of the SVP Act, although
unlike SVP‟s, those committed under the MDSO Act were civilly committed in lieu of a
prison term, rather than after that term. As we observed: MDSO‟s “comprise a class of
individuals quite similar to those, such as petitioner, who have been acquitted of a
criminal offense by reason of insanity. Both classes, for example, involve persons who
initially have been found to have committed a criminal act, but whose mental condition
warrants a period of confinement for treatment in a state institution, in lieu of criminal
punishment.” (Moye, supra, 22 Cal.3d at p. 463.) Although MDSO‟s had been initially
subject to indefinite commitment, our own decisions cast doubt on the validity of such
19
commitments and “the Legislature has subsequently enacted new provisions which limit
the duration of all MDSO commitments . . . [to] the „longest term of imprisonment which
could have been imposed for the offense or offenses of which the defendant was
convicted . . . .” (Id. at p. 464.) The Legislature then added former section 6316.2, which
provided “for a special extended commitment of one year beyond the maximum term of
imprisonment following jury trial if it is found that the patient suffers from a mental
disorder and, as a result thereof, „is predisposed to the commission of sexual offenses to
such a degree that he presents a serious threat of substantial harm to the health and safety
of others.‟ (§ 6316.2, subd. (a)(2).) Additional one-year commitments were available,
following similar annual hearings. (Id., subd. (h).)” (Moye, supra, 22 Cal.3d at p. 464.)
The burden of proof in these hearings was on the People to prove the individual suffers
from a mental disorder that predisposes him to commit sexual offenses that represented
danger to the public. (Ibid.)
Thus, comparing the NGI and MDSO statutory schemes, we stated: “The
foregoing provisions demonstrate the marked differences between the statutory
commitment and release procedures applicable to MDSOs on the one hand and persons
committed under section 1026 on the other. Yet, as we have noted the preconditions to
both commitments are similar: the initial commitment follows commission of a criminal
act and is based upon a finding of a mental disorder which might present a danger to
others. The MDSO can be confined for only a limited period, measured by the maximum
term for the underlying offense, unless thereafter the People (or other committing
authority) can establish grounds for an extended commitment. In contrast, persons in
petitioner‟s class face indefinite, lifetime confinement unless they can prove that their
sanity has been restored.” (Moye, supra, 22 Cal.3d at pp. 464-465.)
The Moye court then reviewed other California civil commitment statutes,
including the Lanterman-Petris-Short Act (LPS Act), commitment for juvenile offenders,
20
and those deemed incompetent to stand trial, each of which had rules for recommitment
similar to the MDSO Act. The court concluded: “In summary, our research reveals that
commitments under section 1026 represent the sole instance of a potential lifetime
confinement, imposed without regard to the nature of the underlying offense or the
maximum punishment prescribed for it, and without the additional protection of periodic
review and recommitment hearings. Thus, disparity of treatment seems clearly to exist.”
(Moye, supra, 22 Cal.3d at p. 465.)
The court then reasoned: “Because petitioner‟s personal liberty is at stake, the
People concede that the applicable standard for measuring the validity of the statutory
scheme now before us requires application of the strict scrutiny standard of equal
protection analysis. Accordingly, the state must establish both that it has a „compelling
interest‟ which justifies the challenged procedure and that the distinctions drawn by the
procedure are necessary to further that interest. [Citation.] At the very least, persons
similarly situated must receive like treatment under the law. [Citation.] As we have
noted, by reason of their commission of a prior criminal act and the finding of a mental
disorder justifying the initial commitment, persons committed as MDSOs are „similarly
situated‟ with persons like petitioner.” (Moye, supra, 22 Cal.3d at pp. 465-466.)
The court then rejected the People‟s attempts to justify the differences in treatment
between NGI and MDSO commitments. “The People suggest that MDSOs suffer from a
more „limited‟ form of mental disorder (predisposition toward commission of sexual
offenses) when compared with persons found to be insane under [Penal Code] section
1026. It seems quite clear, however, that both classes of persons present equally
substantial risks of harm. By statutory definition, an MDSO is a person „who by reason
of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses
to such a degree that he is dangerous to the health and safety of others.‟ (Welf. & Inst.
Code, § 6300, italics added.) Yet, despite their potential dangerousness, MDSOs must be
21
released from confinement when the maximum term for their underlying offense has
expired, unless the People can establish grounds for an extended commitment. (Id.,
§ 6316.2.) We believe that constitutional demands of equal protection require a similar
shifting of the burden of proof in favor of persons acquitted as insane, in order to retain
them in confinement beyond the maximum term prescribed for the offense they
committed while insane.” (Moye, supra, 22 Cal.3d at p. 466.)
The court then concluded: “Specifically, we hold that principles of equal
protection require . . . that persons committed to a state institution following acquittal of a
criminal offense on the ground of their insanity cannot be retained in institutional
confinement beyond the maximum term of punishment for the underlying offense of
which, but for their insanity, they would have been convicted.” (Moye, supra, 22 Cal.3d
at p. 467.) The court further concluded that “[t]o the extent practicable, and in the
absence of further legislation on the subject, the procedure for the extended commitment
of persons committed [under the NGI statute] should conform to the procedures specified
in section 6316.2 of the Welfare and Institutions Code.” (Ibid.) Although the court did
not mention it, section 6316.2, subdivision (e) then provided that MDSO‟s “shall be
entitled to the rights guaranteed under the Federal and State Constitutions for criminal
proceedings,” which includes imposing on the People the burden of proving beyond a
reasonable doubt that the individual continues to meet the definition of an MDSO. (Stats.
1977, ch. 164, § 3, p. 635; see In re Winship (1970) 391 U.S. 358, 364 [proof beyond a
reasonable doubt constitutionally required for criminal trials]; see also People v. Burnick
(1975) 14 Cal.3d 306, 332 [proof beyond a reasonable doubt required for MDSO‟s].)
Decisions by this court and the United States Supreme Court before and since
Moye have used the equal protection clause to police civil commitment statutes to ensure
that a particular group of civil committees is not unfairly or arbitrarily subjected to
greater burdens. (See Baxtrom v. Herold (1966) 383 U.S. 107 [when the state seeks to
22
civilly commit a person after expiration of prison term, equal protection is violated when
it does not afford a jury trial as for other civil committees]; Jackson v. Indiana (1972)
406 U.S. 715 [the state may not indefinitely commit an individual deemed incompetent to
stand trial, denying procedural protections afforded other civil committees]; Humphrey v.
Cady (1974) 405 U.S. 504, 509 [habeas corpus petitioner stated prima facie case that
Wisconsin statute that civilly committed sex offenders violated equal protection by not
providing jury trial available under the general civil commitment statute]; Foucha v.
Louisiana, supra, 504 U.S. at pp. 84-85 [subjecting someone no longer insane to special
civil commitment regime for insanity acquittees rather than to the general civil
commitment statute violates equal protection]; In re Gary W. (1971) 5 Cal.3d 296, 307-
308 [those committed by the former Youth Authority and subsequently civilly committed
when they reach the age of 21 must pursuant to the equal protection clause be granted a
jury trial afforded others civilly committed]; Conservatorship of Hofferber (1980) 28
Cal.3d 161, 178-179 (Hofferber) [equal protection requires the determination that a
conservatorship under the LPS Act for an individual initially determined to be
incompetent to stand trial be made by a jury beyond a reasonable doubt when it is
claimed the individual has a dangerous mental disorder].)
Most recently in In re Smith, supra, 42 Cal.4th 1251 (Smith), we concluded that a
substantial equal protection issue was raised when a person imprisoned for a conviction
overturned on appeal was treated as an SVP rather than forcing the state to meet the more
stringent civil commitment requirements of the LPS Act. We therefore interpreted an
ambiguous section of the SVP Act providing that SVP petitions are not to be dismissed
because of “a good-faith mistake of fact or law” as not applying to such a person in order
to avoid the equal protection issue. (Id. at p. 1255.) In arriving at our conclusion, we
summarized the relevant principles for applying equal protection analysis to civil
commitment statutes: “(1) generally speaking, no individual or group when being civilly
23
committed may be denied substantive or procedural protections that are provided to the
population as a whole; (2) on the other hand, the Legislature may make reasonable
distinctions between its civil commitment statutes based on a showing that the persons
are not similarly situated, meaning that those who are reasonably determined to represent
a greater danger may be treated differently from the general population; (3) in particular,
those who are criminally convicted, and those indicted on criminal charges but
incompetent to stand trial, may be distinguished, at least initially, from the general
population for civil commitment purposes, because their criminal acts demonstrate that
they potentially pose a greater danger to society than those not in the criminal justice
system.” (Id. at pp. 1266-1267.)
Our statement of these principles in Smith followed an extensive discussion of
Hofferber. In Hofferber, we found that those charged with criminal acts determined to be
incompetent to stand trial could be subject to civil commitment under the LPS Act even
though the state was not initially required to prove such persons were “gravely disabled”
(§ 5008, subd. (h)(1)(A)) within the meaning of that act. (Hofferber, supra, 28 Cal.3d at
pp. 170-174.) “[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 state power.”
(Id. at p. 172, italics added.) For this reason, we concluded, “some separate treatment of
permanently incompetent criminal defendants formally charged with violent felonies is
justified. Allegedly they have engaged in violence so critical that serious criminal
charges were believed appropriate. Magistrates or grand juries have found substantial
evidence that the alleged conduct actually was committed as alleged. Those
determinations of probable cause establish strong grounds to believe that, by concrete
24
acts, the incompetent defendants already have seriously imperiled public safety and thus
are particularly dangerous.” (Id. at p. 173.)
In Smith, we concluded that the reasonably perceived greater danger of SVP‟s
justifies their being treated differently from those subject to the LPS Act, the general civil
commitment statute, who cannot be subject to long-term commitment based on
psychiatric opinion alone. “Individuals in prison with felony convictions have yet to
demonstrate their capacity or willingness to keep their conduct within the bounds of the
law and to break old criminal habits, and the Legislature could legitimately conclude that
such felons who have prior sexually violent offenses represent a particular danger to
society that justifies a separate system of civil commitment.” (Smith, supra, 42 Cal.4th at
p. 1268.) It is reasonable to suppose that those who have been adjudicated to have
committed criminal acts represent a class that is on the whole more dangerous than those
who have not — in other words, that such adjudication is a reasonable proxy for greater
dangerousness.
With these principles in mind, we turn to McKee‟s equal protection claim. He
contends that SVP‟s are treated less favorably than those similarly situated under the
Mentally Disordered Offender (MDO) Act, Penal Code section 2960 et al., in violation of
the equal protection clause. To evaluate this claim, we briefly review the MDO Act.
“As a condition of parole, a prisoner may be designated and civilly committed as
an MDO for involuntary treatment of a „severe mental disorder‟ if certain conditions are
met. (Pen. Code, §§ 2962, 2966; [citations].) Section 2962 provides that a prisoner is
subject to the MDO Act if: „(a) The prisoner has a severe mental disorder that is not in
remission or cannot be kept in remission without treatment‟; „(b) The severe mental
disorder was one of the causes of or was an aggravating factor in the commission of the
crime for which the prisoner was sentenced to prison‟; „(c) The prisoner has been in
treatment for the severe mental disorder for 90 days or more within the year prior to the
25
prisoner‟s parole or release‟; „(d)‟ a special team of mental health professionals evaluated
the prisoner and concluded that criteria (a), (b) and (c) above have been met, and that due
to the severe mental disorder, the prisoner “represents a substantial danger of physical
harm to others”; „(e)‟ the prisoner received a determinate sentence for the crime
referenced in subdivision (b), and the crime is one of the enumerated crimes in
subdivision (e). (§ 2962, subds. (a)-(e).) If such are found to exist, the prisoner may
request a de novo hearing before the Board of Parole Hearings. (§ 2966.) If the Board of
Parole Hearings concludes that the criteria are met, the prisoner may request a jury trial in
the superior court. (Ibid.) „The standard of proof shall be beyond a reasonable doubt,
and if the trial is by jury, the jury shall be unanimous in its verdict.‟ (§ 2966, subd. (b);
[citation].)
“Before an MDO‟s current commitment period expires, the district attorney may
petition to extend that commitment by one year. (§ 2970.) To do so, the medical director
of the state hospital, the community program director, or the Director of Corrections first
„shall submit‟ to the district attorney a written evaluation of the prisoner „[n]ot later than
180 days‟ before the prisoner‟s termination of parole or release, . . .‟ ” (People v. Allen
(2007) 42 Cal.4th 91, 99.) An MDO‟s commitment may be extended by one year if it is
once again established beyond a reasonable doubt by a unanimous jury verdict that the
individual meets the definition of an MDO. (§ 2972, subds. (a) & (c).)
As stated above, a prisoner is only eligible for MDO commitment if he or she has
committed certain crimes of violence. These crimes are set forth in Penal Code section
2962, subdivision (c) and include voluntary manslaughter, kidnapping, carjacking, rape,
forcible sodomy, armed robbery, arson, attempted murder, and other crimes in which the
prisoner used force or violence or caused serious bodily injury.
In summary, SVP‟s under the amended Act are given indeterminate commitments
and thereafter have the burden to prove they should be released (unless the DMH
26
authorizes a petition for release). In contrast, an MDO is committed for one-year periods
and thereafter has the right to be released unless the People prove beyond a reasonable
doubt that he or she should be recommitted for another year. There is therefore no
question that, after the initial commitment, an SVP is afforded different and less
favorable procedural protections than an MDO.
As we have stated: “ „The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that affects two
or more similarly situated groups in an unequal manner.‟ [Citations.] This initial inquiry
is not whether persons are similarly situated for all purposes, but „whether they are
similarly situated for purposes of the law challenged.‟ ” (Cooley v. Superior Court,
supra, 29 Cal.4th at p. 253.) In other words, we ask at the threshold whether two classes
that are different in some respects are sufficiently similar with respect to the laws in
question to require the government to justify its differential treatment of these classes
under those laws.
The Court of Appeal, in rejecting McKee‟s equal protection challenge, concluded
that SVP‟s and MDO‟s are not similarly situated. “The classifications of an SVP and an
MDO are different. An SVP is defined as „a person who has been convicted of a sexually
violent offense against one or more victims and who has a diagnosed mental disorder that
makes the person a danger to the health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior.‟ (§ 6600, subd. (a)(1).) In
contrast, an MDO is generally defined as a person with a severe mental disorder that
cannot be kept in remission without treatment and that was a cause or factor in the
commission of a felony offense and, because of that severe mental disorder, represents a
substantial danger of physical harm to others. (Pen. Code, § 2962, subds. (a)-(e); People
v. Allen, supra, 42 Cal.4th at p. 99.) Therefore, the dangers posed by an SVP and an
MDO are different. An SVP is civilly committed for treatment and confinement, in part,
27
because of the danger posed that he or she will likely engage in sexually violent criminal
behavior in the future. An MDO is civilly committed for treatment and confinement, in
part, because of a substantial danger he or she will physically harm others in the future.
Although both SVP‟s and MDO‟s have mental disorders, the dangers they pose (which
provide the bases for their respective civil commitments) are different and therefore they
are not similarly situated.”
All that the above passage demonstrates is the incontrovertible point that SVP‟s
and MDO‟s do not share identical characteristics. But the identification of the above
differences does not explain why one class should bear a substantially greater burden in
obtaining release from commitment than the other.
We conclude that MDO‟s and SVP‟s are similarly situated for our present
purposes. As was stated in In re Calhoun (2004) 121 Cal.App.4th 1315, in which the
court struck down a policy that granted to SVP‟s a more restricted right to refuse
antipsychotic medication medication than MDO‟s, both MDO‟s and SVP‟s “have been
found, beyond a reasonable doubt, to suffer from mental disorders that render them
dangerous to others. The dangerous finding requires only an assessment of future
dangerousness. It does not require proof of a recent overt act. Both have been convicted
of a serious or violent felony. At the end of their prison terms, both have been civilly
committed to the Department of Mental Health for treatment of their disorders.
Furthermore, the purpose of the MDO Act and the SVPA is the same: to protect the
public from dangerous felony offenders with mental disorders and to provide mental
health treatment for their disorders.” (Id. at pp. 1351-1352, accord People v. Buffington
(1999) 74 Cal.App.4th 1149, 1156 (Buffington) [concluding that SVP‟s and MDO‟s are
similarly situated because “they are currently suffering from a mental disorder that
renders them dangerous”]; [People v. Gibson (1988) 204 Cal.App.3d 1425, 1436 [an
MDO is similarly situated to other adult persons involuntarily committed because “[o]ne
28
purpose of all of these pertinent involuntary commitment schemes is the protection of the
public from the dangerous mentally ill and their involuntary commitment for
treatment”].) We agree that these common features make SVP‟s and MDO‟s similarly
situated. Therefore, when the state makes the terms of commitment or recommitment
substantially less favorable for one group than the other, the case law reviewed above
teaches that it is required to give some justification for this differential treatment.
In other terms, imposing on one group an indefinite commitment and the burden of
proving they should not be committed, when the other group is subject to short-term
commitment renewable only if the People prove periodically that continuing commitment
is justified beyond a reasonable doubt, raises a substantial equal protection question that
calls for some justification by the People. As the United States Supreme Court has made
clear, standards and burdens of proof represent societal determinations of who should
bear the risk that a court‟s or jury‟s judgment will be in error. (Addington, supra, 441
U.S. at pp. 426-427.) Standards and burdens of proof, like other due process protections
afforded both criminal defendants and persons subject to involuntary commitment, also
balance the individual‟s fundamental liberty interest in not being incarcerated or
involuntarily confined with the state‟s compelling interest in protecting society from
dangerous persons, in punishing criminal behavior in the case of criminal defendants, and
in treating mental illness in the case of civil committees. Because MDO‟s and SVP‟s
have the same interest at stake — the loss of liberty through involuntary civil
commitment — it must be the case that when society varies the standard and burden of
proof for SVP‟s in the manner in which Proposition 83 did, it does so because of the
belief that the risks involved with erroneously freeing SVP‟s from their commitment are
29
significantly greater than the risks involved with freeing MDO‟s. (See Moye, supra, 22
Cal.3d at pp. 465-467.) A substantial question is raised about the basis for this belief.8
The People argue that the state has a wide latitude in classifying different types of
civil commitments, citing People v. Wilkinson (2004) 33 Cal.4th 821, 838, a criminal
case. There is no question that the determination of punishment for various offenses
inherently involves value and policy determinations left to the Legislature, or to the
people acting in a legislative capacity, and penal classifications will be upheld unless they
are irrational. (See People v. Hofsheier (2006) 37 Cal.4th 1185, 1201.) But as discussed
above, the MDO and SVP Acts are not penal statutes. The differentiation between
MDO‟s and SVP‟s must be made with reference to the goals of the statutes, i.e. treatment
of the mentally disordered or public protection. Therefore, as discussed above, the
Legislature may make reasonable distinctions between its civil commitment statutes
based on a showing “that those who are reasonably determined to represent a greater
danger may be treated differently from the general population.” (Smith, supra, 42 Cal.4th
at p. 1266.) A prior adjudication of criminal conduct is a reasonable proxy for greater
danger to the public and may therefore serve as a basis for treating civil committees
subject to such an adjudication differently from the general class of individuals subject to
8
The concurring and dissenting opinion argues that because there is some overlap
between the SVP Act and the MDO Act, and because the former was enacted after the
latter, it follows that “sexually violent predators are a particularly dangerous subset of
the broader group of persons who may be civilly committed under the MDO Act.”
(Conc. & dis. opn. of Chin, J., post, at p. 14, italics in original.) But if the concurring and
dissenting opinion means to suggest that SVP‟s are therefore more dangerous than
persons committed under the MDO Act, that inference neither follows logically from the
circumstances of overlap and later enactment, nor is it supported by authority or
evidence. Indeed, that inference is contrary to the fact that originally the terms under
which MDO‟s and SVP‟s were committed were substantially similar. (See Buffington,
supra, 74 Cal.App.4th at pp. 1156-1162.)
30
civil commitment. (Ibid.; see also Hofferber, supra, 28 Cal.3d at pp. 171-173.) This
differential treatment may result at least initially in imposing a greater burden of proof in
order to be released from involuntary commitment. (Moye, supra, 22 Cal.3d at pp. 462-
463.) Here, however, both SVP‟s and MDO‟s have suffered prior felony convictions,
and both have been determined by mental health experts to suffer from mental disorders
that make them a continuing danger. Therefore, the reasons for differential treatment are
not immediately obvious from the face of the two statutory schemes.
The People also rely on a passage from Buffington that attempts to justify the fact
that MDO‟s receive treatment while in prison while SVP‟s do not. As that court stated:
“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. (Pen. Code, § 2962; Welf. & Inst. Code, § 6606, subd. (b).) 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 p. 1163.) People v. Hubbert (2001) 88 Cal.App.4th 1202, 1222,
provides a somewhat more specific rendering of the above: “[T]he MDO law targets
persons with severe mental disorders that may be kept in remission with treatment (Pen.
Code, § 2962, subd. (a)), whereas the SVP [Act] targets persons with mental disorders
that may never be successfully treated. (Welf. & Inst. Code, § 6606, subd. (b).)” The
People then argue that “[g]iven these „contrasting backgrounds and expectations related
to treatment,‟ [SVP‟s and MDO‟s] are not similarly situated for purposes of how long
they should be confined and treated.”
The truth of this assertion is unclear from the face of the statutes in question. The
two statutes cited in Buffington and Hubbart are Penal Code section 2962 and Welfare
and Institutions Code section 6606, subdivision (b). Penal Code section 2962,
31
subdivision (a) states, in pertinent part that a prisoner may be classified as an MDO if he
“has a severe mental disorder that is not in remission or cannot be kept in remission
without treatment. (Italics added.) Welfare and Institutions Code section 6606,
subdivision (b) provides: “Amenability to treatment is not required for a finding that any
person is a person described in Section 6600, nor is it required for treatment of that
person. Treatment does not mean that the treatment be successful or potentially
successful, nor does it mean that the person must recognize his or her problem and
willingly participate in the treatment program.”
In other words, Penal Code section 2962, subdivision (a) includes two classes of
MDO‟s: those whose mental disorders are simply found to be not in remission, and those
whose mental disorders are found to be in remission only due to treatment. While the
statute therefore contemplates that the latter class of MDO‟s will need and respond to
treatment, it also includes in the former class those whose illnesses are not in remission
and do not necessarily respond to treatment. There is therefore little difference in this
respect between MDO‟s and SVP‟s; section 6606, subdivision (b) envisions that some
SVP‟s will, and some will not, respond to treatment.
It is true that unlike the SVP commitment, an MDO commitment initially arises as
a condition of parole and is only extended beyond parole if the individual‟s mental
disorder is found not to be in remission. (See Pen. Code, §§ 2962, 2970.) This
circumstance may arguably evince a legislative expectation that those initially classified
as MDO‟s as a condition of parole may be more amenable to treatment than persons
subject to SVP commitment immediately following a prison sentence. But it is not
evident that those who are committed as MDO‟s after their parole term has expired, who
have not yet demonstrated an amenability to treatment and have been determined to pose
a continuing danger as a result of a mental disorder, differ materially from SVP‟s in terms
of danger to society and need for continuing commitment.
32
The Court of Appeal below, in concluding that SVP‟s are more of a danger than
MDO‟s, relied upon the legislative findings to Proposition 83: “As the California
Supreme Court noted, the Act, on its original enactment, „narrowly target[ed] “a small
but extremely dangerous group of sexually violent predators that have diagnosable
mental disorders [who] can be identified while they are incarcerated.” ‟ (Cooley v.
Superior Court, supra, 29 Cal.4th at p. 253.) [¶] Thereafter, on passage of Proposition
83, the voters‟ information pamphlet for Proposition 83 noted: „Sex 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, and they prey on
the most innocent members of our society. More than two-thirds of the victims of rape
and sexual assault are under the age of 18. Sex offenders have a dramatically higher
recidivism rate for their crimes than any other type of violent felon.‟ (See Voters
Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127; Historical and Stat.
Notes, 47C West‟s Ann. Pen. Code (2008) foll. § 209, p. 52.)”
But these assertions, written into the findings of Proposition 83 by those who
drafted the initiative, are not the same as facts, and an allusion to an uncited United States
Department of Justice study does not make them so.9 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
9
Our own research has been unable to locate a relevant 1998 United States
Department of Justice study. We have uncovered a 1997 study of sex offenders by the
United States Department of Justice, Bureau of Justice Statistics. (Greenfeld, Bur. of
Justice Statistics, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual
Assault (Feb. 1997).) It is unclear from an intitial reading of the report whether it
supports the factual assertions about recidivism made by the Proposition 83 legislative
findings. (See also Langan & Levin, Bur. of Justice Statistics, Recidivism of Prisoners
Released in 1994 (2002).)
33
facts to ascertain whether the legislative body “has drawn reasonable inferences based on
substantial evidence.” (Professional Engineers v. Department of Transportation (1997)
15 Cal. 4th 543, 569, citing Turner Broadcasting System, Inc. v. FCC (1994) 512 U.S.
622, 666 (lead opn. of Kennedy, J.); see also Spiritual Psychic Science Church v. City of
Azusa (1985) 39 Cal. 3d 501, 514.) Thus, for example, where a constitutional right to
privacy is at issue, evidence introduced at trial may call into question legislative fact-
finding. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 354-356)
Therefore, the legislative findings recited in the ballot initiative do not by themselves
justify the differential treatment of SVP‟s. Nor do these findings reference any
comparisons between SVP‟s and MDO‟s.
Nor is it a response to McKee‟s equal protection challenge that the SVP
commitment statute does not violate the due process clause, as discussed above. Due
process and equal protection protect different constitutional interests: due process affords
individuals a baseline of substantive and procedural rights, whereas equal protection
safeguards against the arbitrary denial of benefits to a certain defined class of individuals,
even when the due process clause does not require that such benefits be offered. (See,
e.g., Califano v. Wescott (1979) 443 U.S. 76 [rule that welfare benefits may be granted to
families with dependent children when the father becomes unemployed but not the
mother violates equal protection].) Here, as in Moye and related cases, when certain due
process protections for those civilly committed are guaranteed by statute, even if not
constitutionally required, the denial of those protections to one group must be reasonably
justified in order to pass muster under the equal protection clause.
McKee argues that NGI‟s and SVP‟s are also similarly situated and that a
comparison of the two commitment regimes raises similar equal protection problems as
discussed above. His argument has merit. NGI‟s as discussed are those who have
committed criminal acts but have been civilly committed rather than criminally penalized
34
because of their severe mental disorder. Under the current statutory scheme they may not
be in civil custody longer than the maximum state prison term to which they could have
been sentenced for the underlying offense (Pen. Code, § 1026.5, subd. (a); People v.
Crosswhite (2002) 101 Cal.App.4th 494) unless at the end of that period the district
attorney extends the commitment for two years by proving in a jury trial beyond a
reasonable doubt that the person presents a substantial danger of physical harm to others
because of a mental disease, defect, or disorder. (Pen. Code, § 1026.5, subd. (b)(1);
People v. Hayne (2004) 116 Cal.App.4th 1224, 1226; People v. Superior Court (Blakely)
60 Cal.App.4th 202, 216.) We agree that, as with MDO‟s, the People have not yet
carried their burden of justifying the differences between the SVP and NGI commitment
statutes.
We do not conclude that the People could not meet its burden of showing the
differential treatment of SVP‟s is justified. We merely conclude that it has not yet done
so. Because neither the People nor the courts below properly understood this burden, the
People will have an opportunity to make the appropriate showing on remand. In must be
shown that, notwithstanding the similarities between SVP‟s and MDO‟s, the former as a
class bear a substantially greater risk to society, and that therefore imposing on them a
greater burden before they can be released from commitment is needed to protect society.
This can be shown in a variety of ways. For example, it may be demonstrated that
inherent nature of the SVP‟s mental disorder makes recidivism as a class significantly
more likely. Or it may be that SVP‟s pose a greater risk to a particularly vulnerable class
of victims, such as children. Of course, this latter justification would not apply to SVP‟s
35
who have no history of victimizing children. But in the present case, McKee‟s previous
victims were children. 10 Or the People may produce some other justification.
The concurring and dissenting opinion objects to any such remand, declaring that
“whether society should treat sex crimes and their perpetrators differently than other
crimes is a judgment call for society to make, not a „fact‟ for a judge to determine after an
evidentiary hearing.” (Conc. & dis. opn. of Chin, J., post, at p. 27.) In support of its
position it cites a criminal case, Powell v. Texas (1968) 392 U.S. 514, in which the
United States Supreme Court rejected a constitutional challenge to the criminalization of
public intoxication. If we were considering a criminal statute and the legislative
judgment about how to punish sex crimes, we would agree with the concurring and
dissenting opinion. But as discussed above, the SVP Act is not a penal statute, and
distinctions in the terms of civil commitment statutes that substantially disfavor a
particular group are to be made “on the basis of degree of danger presented.” (Hofferber,
supra, 28 Cal.3d at p. 173.) Nor does the fact that we have recognized that SVP‟s are
“ „extremely dangerous‟ ” (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253) resolve
the equal protection claim before us, as the concurring and dissenting opinion appears to
conclude. Here SVP‟s are being compared to other classes of persons subject to civil
commitment who also are being committed because of the substantial danger they pose to
society.
10
It is not entirely clear why SVP‟s who target children are more dangerous to
society than MDO‟s or NGI‟s whose victims were children. It may be the case that
SVP‟s whose previous victims are children are more likely, because of the nature of their
mental disorder, to target children in the future, whereas MDO‟s or NGI‟s who have
committed violent acts against children are less likely to specifically target child victims
if they reoffend. This argument was not made below, and we have no way of knowing
whether it has a factual basis.
36
We therefore remand this case to the trial court to determine whether the People,
applying the equal protection principles articulated in Moye and related cases discussed in
the present 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.11 The trial court may, if appropriate, permit expert testimony.12
11
McKee also argues that equal protection is violated because he is treated
differently from those committed under the LPS Act. The LPS Act (§ 5000 et seq.) is
California‟s general civil commitment statute and applies to those mentally incompetent
individuals who are gravely disabled and/or represent a danger to themselves and others.
(See Smith, supra, 42 Cal.4th at pp. 1267-1268.) Although some committed under the
LPS Act have been found incompetent to stand trial on criminal charges (see § 5008,
subd. (h)), they have not been definitively determined to have committed serious felonies,
and in that respect differ from SVP‟s, MDO‟s, and NGI‟s. As noted, “[i]ndividuals in
prison with felony convictions have yet to demonstrate their capacity or willingness to
keep their conduct within the bounds of the law and to break old criminal habits, and the
Legislature could legitimately conclude that such felons who have prior sexually violent
offenses represent a particular danger to society that justifies a separate system of civil
commitment.” (Smith, supra, 42 Cal.4th at p. 1268.) Because these SVP‟s, MDO‟s, and
NGI‟s more closely resemble one another than they do those persons committed under
the LPS Act, it is appropriate on remand to focus on these groups rather than on those
persons committed under the LPS Act in assessing McKee‟s equal protection claim.
In this connection, we note that the concurring and dissenting opinion goes to
considerable length to demonstrate a point no one contests, no matter what the standard
of review being applied — that SVP‟s may be validly subject to a different statutory
scheme than those subject to the general civil commitment statute. Indeed, the out-of-
state cases that the concurring and dissenting opinion cites for the most part merely
support this unremarkable proposition. (See Martin v. Reinstein (Ariz.Ct.App. 1999) 987
P.2d 779, 796; Westerheide v. State (Fla. 2002) 831 So.2d 93, 111-112; In re Detention of
Samuelson (Ill. 2000) 727 N.E.2d 228, 236-237; In re Detention of Williams (Iowa 2001)
628 N.W.2d 447, 453-454; In re P.F. (N.D. 2008) 744 N.W.2d 724, 731-732; In re
Treatment and Care of Luckabaugh (S.C. 2002) 568 S.E.2d 338, 351; In re Commitment
of Petersen (Wn.Ct.App. 2000) 36 P.3d 1053, 1057; see also Hendricks, supra, 521 U.S.
at p. 377 (dis. opn. of Breyer, J.).)
The two out-of-state cases cited by the concurring and dissenting opinion that are
remotely on point are readily distinguishable. In State v. Post (Wis. 1995) 541 N.W.2d
(footnote continued on next page)
37
(footnote continued from previous page)
115, the Wisconsin Supreme Court considered an equal protection challenge to their SVP
statute. Among the challenges considered was that the terms of release from commitment
were different from parallel terms in the general civil commitment statute. (541 N.W.2d
at p. 132.) In addition to the fact that the court considered a comparison only between the
SVP statute and the general commitment statute, the SVP statute under consideration was
substantially different from the statute at issue here. The Wisconsin statute provided that
an SVP could “petition for supervised release every six months and must be released
unless the state can show clear and convincing evidence that continued secure
confinement is necessary.” (541 N.W.2d at p. 132.)
In In re Care and Treatment of Coffman (Mo. 2007) 225 S.W.3d 439 (in bank),
the petitioner challenged Missouri‟s SVP act on equal protection grounds because other
persons involuntarily civilly committed were not required to prove by a preponderance of
the evidence that the commitment should not continue. (Id. at p. 445.) The court
concluded that “[b]ecause the basis for commitment of sexually violent predators is
different from general civil commitments, there is no requirement that sexually violent
predators be afforded exactly the same rights as persons committed under the general
civil standard.” (Ibid., italics added.) But the equal protection challenge at issue in this
case arises not from a comparison between SVP‟s and those subject to a general civil
commitment statute, but between SVP‟s and two other groups of highly dangerous civil
committees — MDO‟s and NGI‟s — and the differences between these groups in terms
of danger to the public is not readily apparent.
12
We also note that Senate Bill No. 1128 (2005-2006 Reg. Sess.), enacted in
September 2006 as an urgency measure, shortly before the passage of Proposition 83,
anticipated the indefinite commitment term for SVP‟s that was later included in that
proposition. (Stats. 2006, ch. 337, §§ 55, 57; see Bourquez v. Superior Court (2007) 156
Cal.App.4th 1275, 1280-1281.) The People have not addressed whether the legislative
history of that statute contains any justification for treating SVP‟s differently from
MDO‟s and may do so on remand. Although the concurring and dissenting opinion
makes much of the fact that the Legislature enacted reforms shortly before the passage of
Proposition 83 similar to those considered here, it cites no factual findings in the
legislative history that explain the distinction between SVP‟s and MDO‟s or NGI‟s.
We further note that the concurring and dissenting opinion‟s speculation that we
are contemplating the use of “nonexpert testimony” on remand (conc. & dis. opn. of
Chin, J., post, at p. 26) is unwarranted.
38
In remanding the case, we make clear that different classes of individuals civilly
committed need not be treated identically. In Hofferber, supra, 28 Cal.3d 161, even as
we affirmed that fundamental distinctions between classes of individuals subject to civil
commitment are subject to strict scrutiny (id. at p. 171, fn. 8), we also acknowledged the
government‟s legitimate capacity to make reasonable distinctions: “The state has
compelling interests in public safety and in humane treatment of the mentally disturbed.
[Citations.] It 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 state power.” (Id. at pp.
171-172, fn. omitted.) Moreover, we have recognized “the importance of deferring to the
legislative branch in an area which is analytically nuanced and dependent upon medical
science.” (Hubbart, supra, 19 Cal.4th at p. 1156.) But the government has not yet shown
that the special treatment of SVP‟s is validly based on the degree of danger reasonably
perceived as to that group, nor whether it arises from any medical or scientific evidence.
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.13
13
Moreover, we strongly disagree with the concurring and dissenting opinion‟s
characterization of our view as being “that every detail of every civil commitment
program is subject to strict scrutiny.” (Conc. & dis. opn. of Chin, J., post, at pp. 11-12.)
Nor do we agree with the concurring and dissenting opinion inasmuch as it means to
imply that the change from a short-term commitment, renewable only if the state carries
its burden beyond a reasonable doubt, to an indefinite commitment in which the person
committed has the burden of proof is merely an alteration of a minor detail of the
commitment scheme.
39
Moreover, we emphasize that mere disagreement among experts will not suffice to
overturn the Proposition 83 amendments. The trial court must determine whether the
legislative distinctions in classes of persons subject to civil commitment are reasonable
and factually based— not whether they are incontrovertible or uncontroversial. The trial
court is to determine not whether the statute is wise, but whether it is constitutional.14
IV.
DISPOSITION
The judgment of the Court of Appeal is affirmed in part and reversed in part, and
the cause is remanded with directions to remand to the trial court for proceedings
consistent with this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CORRIGAN, J.
14
We also emphasize that our holding in the present case does not mean that statutes
pertaining to sexual offenders in general must be subject to heightened scrutiny. The
lifetime registration requirements imposed by Penal Code section 290, for example, do
not involve the loss of liberty. (See Smith v. Doe, supra, 538 U.S. at p. 100;) Such
regulatory statutes not involving affirmative disability or restraint, are subject to rational
basis review, and the Legislature will be given wide latitude to decide who should be
subject to registration requirements. (See People v. Monroe (1985) 168 Cal.App.3d
1205, 1215.)
40
CONCURRING AND DISSENTING OPINION BY CHIN, J.
In 2006, the Legislature and then, in an identical fashion, the electorate, reformed
provisions of California‟s Sexually Violent Predators Act (SVPA, Welf. & Inst. Code,
§ 6600 et seq.) concerning the procedures for releasing sexually violent predators from
civil commitment and permitting them to rejoin society.1 The issue before us is whether
these reforms are constitutional.
The majority holds that the reforms do not violate defendant‟s ex post facto and
due process rights. I agree. But, because the Legislature and electorate did not make
similar changes to other civil commitment schemes, the majority also holds that an
evidentiary hearing is needed to determine whether the changes violate equal protection
principles. I disagree. Consistent with the unanimous view of all seven panels in five
Courts of Appeal that have considered this precise question in originally published
opinions, and of all the decisions in other states that have rejected this or similar equal
protection contentions, I would find no equal protection violation. I would uphold the
legislative and electoral reforms against all of the constitutional challenges of this case.
The equal protection question comes down to this: May society treat sexually
violent predators — those who have committed and been convicted of sex crimes —
1
The majority opinion briefly acknowledges the Legislature‟s action (maj. opn.,
ante, at p. 38, fn. 12), but otherwise it discusses only what the electorate did and largely
ignores the fact that the Legislature acted first.
1
differently from persons who did not commit sex crimes? To ask the question should be
to answer it. As the United States Supreme Court and this court have recognized,
sexually violent predators are different from other criminals; they are “particularly”
(Kansas v. Hendricks (1997) 521 U.S. 346, 364 (Hendricks)) or “ „extremely‟ ” (Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253) dangerous. We do not need an evidentiary
hearing to conclude that they present a unique danger to society that warrants specific
remedies.
A community may take action to protect its children and other vulnerable
members from violent sex offenders, even if that action does not apply to persons subject
to other civil commitment schemes. The Legislature or electorate may, without running
afoul of equal protection principles, address one societal problem even if it does not
simultaneously address other problems. Society has long treated sexual predators
differently from others. Good reason exists for this different treatment. Sexual predators
are different. And their sexually predatory conduct has a uniquely traumatizing effect on
their victims. The Legislature or the electorate or, as here, both, may address the dangers
that sexually violent predators pose separately from other societal problems, and craft
remedies to protect society from their depravations that differ from remedies crafted for
non-sex offenders.
I. BACKGROUND
A historical review is necessary to place this issue fully into context.
“Historically, the states have exercised a power of involuntary civil commitment
involving the care and treatment of dangerous mentally disordered individuals.”
(Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143 (Hubbart).) “In recent years,
lawmakers across the country have perceived a link between certain diagnosable mental
disorders and violent sexual behavior that is criminal in nature. Through passage of the
SVPA, California is one of several states to hospitalize or otherwise attempt to treat
2
troubled sexual predators apart from any criminal sanctions they might receive, and apart
from civil commitment schemes targeting other mental health problems. (Kansas v.
Hendricks (1997) 521 U.S. 346, 380-389 (dis. opn. of Breyer, J.) [identifying 17 states
with such statutes] (Hendricks).)” (Hubbart, supra, at p. 1143, italics added.)
One early statute dealing specifically with sexual predators is a Kansas law
enacted in 1994 entitled, much like the California statute at issue here, the Sexually
Violent Predator Act. (Kan. Stat. Ann. § 59-29a01 et seq.) In 1997, the United States
Supreme Court considered — and rejected — a constitutional challenge (that did not
include an equal protection challenge) to that law. (Hendricks, supra, 521 U.S. 346.)
The high court explained that the “Kansas Legislature enacted the Sexually Violent
Predator Act . . . in 1994 to grapple with the problem of managing repeat sexual
offenders. Although Kansas already had a statute addressing the involuntary
commitment of those defined as „mentally ill,‟ the legislature determined that existing
civil commitment procedures were inadequate to confront the risks presented by ‘sexually
violent predators.‟ ” (Id. at pp. 350-351, fn. omitted, italics added.)
The court quoted with approval the preamble to the Kansas law, where the Kansas
Legislature explained that a “ „small but extremely dangerous group of sexually violent
predators exist who do not have a mental disease or defect that renders them appropriate
for involuntary treatment pursuant to the [general involuntary civil commitment
statute] . . . . In contrast to persons appropriate for civil commitment under the [general
involuntary commitment statute], sexually violent predators generally have anti-social
personality features which are unamenable to existing mental illness treatment modalities
and those features render them likely to engage in sexually violent behavior. The
legislature further finds that sexually violent predators‟ likelihood of engaging in repeat
acts of predatory sexual violence is high. The existing involuntary commitment
procedure . . . is inadequate to address the risk these sexually violent predators pose to
3
society. The legislature further finds that the prognosis for rehabilitating sexually violent
predators in a prison setting is poor, the treatment needs of this population are very long
term and the treatment modalities for this population are very different than the
traditional treatment modalities for people appropriate for commitment under the [general
involuntary civil commitment statute].‟ ” (Hendricks, supra, 521 U.S. at p. 351, italics
added.)
The Kansas statute defined a “sexually violent predator” as “ „any person who has
been convicted of or charged with a sexually violent offense and who suffers from a
mental abnormality or personality disorder which makes the person likely to engage in
the predatory acts of sexual violence.‟ ” (Hendricks, supra, 521 U.S. at p. 352.) Under
that law, a person could be civilly committed as a sexually violent predator only after
prescribed procedures were followed, including “a trial [that] would be held to determine
beyond a reasonable doubt whether the individual was a sexually violent predator.” (Id.
at p. 353.) After that determination was made, “[c]onfined persons were afforded three
different avenues of review: First, the committing court was obligated to conduct an
annual review to determine whether continued detention was warranted. [Citation.]
Second, the Secretary [of Social and Rehabilitation Services] was permitted, at any time,
to decide that the confined individual‟s condition had so changed that release was
appropriate, and could then authorize the person to petition for release. [Citation.]
Finally, even without the Secretary‟s permission, the confined person could at any time
file a release petition. [Citation.] If the court found that the State could no longer satisfy
its burden under the initial commitment standard, the individual would be freed from
confinement.” (Ibid.)
In upholding the Kansas law, the high court found that “the Kansas Legislature has
taken great care to confine only a narrow class of particularly dangerous
individuals . . . .” (Hendricks, supra, 521 U.S. at p. 364, italics added.) It recognized
4
“that psychiatric professionals are not in complete harmony in casting pedophilia, or
paraphilias in general, as „mental illnesses.‟ ” (Id. at p. 360, fn. 3.) Reiterating what it
had said in an earlier case, however, the court stated that “[t]hese disagreements . . . do
not tie the State‟s hands in setting the bounds of its civil commitment laws. In fact, it is
precisely where such disagreement exists that legislatures have been afforded the widest
latitude in drafting such statutes.” (Ibid., citing Jones v. United States (1983) 463 U.S.
354, 365, fn. 13.) The court added that “when a legislature „undertakes to act in areas
fraught with medical and scientific uncertainties, legislative options must be especially
broad and courts should be cautious not to rewrite legislation.‟ ” (Hendricks, supra, at p.
360, fn. 3, quoting Jones v. United States, supra, at p. 370.)
Justice Breyer, speaking for four members of the court, dissented in Hendricks,
but only on the ex post facto point. (Hendricks, supra, 521 U.S. at pp. 373-374 (dis. opn.
of Breyer, J.) Speaking for three members of the court, Justice Breyer expressly agreed
that, other than the ex post facto concern, the Kansas act was constitutional. (Id. at pp.
374-378.)2 He noted that the “Constitution does not require Kansas to write all of its
civil commitment rules in a single statute or forbid it to write two separate statutes each
covering somewhat different classes of committable individuals.” (Id. at p. 377.)
California‟s SVPA was enacted a year after Kansas‟s, and took effect January 1,
1996. (Stats. 1995, ch. 763, § 3.) In many respects, California‟s SVPA is similar to the
Kansas act. (See Hubbart, supra, 19 Cal.4th at p. 1153.) As originally written, the
SVPA required that, to qualify as a sexually violent predator, a person had to have been
convicted of a sexually violent offense against two or more victims. (See Hubbart,
2
Justice Ginsburg joined the dissent on the ex post facto point and expressed no
opinion regarding the other issues. Thus, “at least eight justices found no basis on which
to conclude that the act violated Hendricks‟s due process rights.” (Hubbart, supra, 19
Cal.4th at p. 1155, fn. 22.)
5
supra, at p. 1144, fn. 6.) Today, only one victim is required. Accordingly, the SVPA
today defines a “ „sexually violent predator‟ ” as “a person who has been convicted of a
sexually violent offense against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.” (Welf. & Inst.
Code, § 6600, subd. (a)(1).) This definition is similar to that of the Kansas law reviewed
in Hendricks, supra, 521 U.S. 346, except that California requires the person to have
been convicted of, and not merely charged with, the sexually violent offense. Under the
original SVPA, and still today, a person can be confined as a sexually violent predator
only after a jury trial (if either party requests a jury) where the state has the burden of
proving beyond a reasonable doubt the person is, in fact, a sexually violent predator.
(See Hubbart, supra, at p. 1147.) Any civil commitment as a sexually violent predator
was for a two-year period and could be extended for additional two-year periods only if
the state filed a new petition for extended commitment and proved beyond a reasonable
doubt at another jury trial (if requested) that the person remained a sexually violent
predator. (See maj. opn., ante, at pp. 3-4.)
The California SVPA was accompanied by legislative findings similar to those
stated in the preamble to the Kansas law. (See Hubbart, supra, 19 Cal.4th at p. 1153.) In
an uncodified statement, the California Legislature found and declared “that a small but
extremely dangerous group of sexually violent predators that have diagnosable mental
disorders . . . are not safe to be at large and if released represent a danger to the health
and safety of others in that they are likely to engage in acts of sexual violence.” (Stats.
1995, ch. 763, § 1; quoted in full in Hubbart, supra, at p. 1144, fn. 5.)
In Hubbart, supra, 19 Cal.4th 1138, this court upheld the SVPA‟s constitutionality
against a broad-based attack, including an equal protection challenge. We relied heavily
on Hendricks, supra, 521 U.S. 346, and explained that equal protection and due process
6
analysis regarding the SVPA is the same under both the United States and the California
Constitutions. (Hubbart, supra, at p. 1152, fn. 19.) We noted that “Hendricks
emphasized the importance of deferring to the legislative branch in an area which is
analytically nuanced and dependent upon medical science.” (Id. at p. 1156.) We also
explained that the “SVPA is narrowly focused on a select group of violent criminal
offenders who commit particular forms of predatory sex acts against both adults and
children . . . . The problem targeted by the [SVPA] is acute, and the state interests —
protection of the public and mental health treatment — are compelling.” (Id. at p. 1153,
fn. 20.)
The year 2006 saw the enactment of a number of reforms in the law‟s treatment of
sexual predators. “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.) All references to an extended commitment in sections 6604 and 6604.1 of
the Welfare and Institutions Code were deleted. (Stats. 2006, ch. 337, §§ 55, 56.)”
(Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) In an uncodified
statement, the California Legislature found and declared that “[t]he primary public policy
goal of managing sex offenders in the community is the prevention of future
victimization,” and that the Legislature enacted the legislation “[i]n order to accomplish
these goals . . . .” (Stats. 2006, ch. 337, § 2(a), (d).) The bill passed by a 40-0 vote in the
Senate and a 75-0 vote in the Assembly. (Sen. J. (2005-2006 Reg. Sess.) pp. 5554-5555;
Assem. J. (2005-2006 Reg. Sess.) pp. 7324-7325.)
7
The majority correctly explains that “[o]n November 7, 2006, California voters
passed Proposition 83, entitled „The Sexual Predator Punishment and Control Act:
Jessica‟s Law‟ amending the [SVPA] effective November 8, 2006. Proposition 83 is a
wide-ranging initiative that seeks to address the problems posed by sex offenders. It
increases penalties for sex offenses, both by altering the definition of some sex offenses
and by providing longer penalties for some offenses as well as modifying probation and
parole provisions: it requires a GPS tracking device for felons subject to such registration
for the remainder of their lives; it prohibits a registered sex offender from living within
2,000 feet of schools and parks; and it changes the [SVPA] by reducing the number of
sexually violent offenses that qualify an offender for [sexually violent predator] status
from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis by
the Legislative Analyst of Prop. 83, pp. 43-44.)” (Maj. opn., ante, at p. 5.)
Proposition 83 also “ „requires that [sexually violent predators] 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.) As relevant to the
issues before us, Proposition 83 enacted the same reforms as had the Legislature the
previous September. (Bourquez v. Superior Court, supra, at pp. 1281-1282; People v.
Shields (2007) 155 Cal.App.4th 559, 562-563.)
Proposition 83‟s findings include the following: “The People find and declare each
of the following: [¶] . . . [¶] (b) Sex 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, and they prey on the most innocent
members of our society. More than two-thirds of the victims of rape and sexual assault
are under the age of 18. Sex offenders have a dramatically higher recidivism rate for
8
their crimes than any other type of violent felon. [¶] . . . [¶] (k) 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. California automatically allows for a jury trial every
two years irrespective of whether there is any evidence to suggest or prove that the
committed person is no longer a sexually violent predator. As such, this act allows
California to protect the civil rights of those persons committed as a sexually violent
predator while at the same time protect society and the system from unnecessary or
frivolous jury trial actions where there is no competent evidence to suggest a change in
the committed person.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop.
83, § 2, p. 127; see Historical & Statutory Notes, 47C West‟s Ann. Pen. Code (2008) foll.
§ 209, pp. 52-53.)
Proposition 83‟s intent clause provides as relevant: “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.” (Voter Information Guide, Gen. Elec., supra, text
of Prop. 83, § 31, p. 138; see Historical & Statutory Notes, 47C West‟s Ann. Pen. Code,
supra, foll. § 209, p. 53.)
Proposition 83 was approved by a 70.5 percent majority of the voters casting votes
on the proposition. (See Cal. Sect. of State, Votes for and Against November 7, 2006
Statewide Ballot Measures <http://www.sos.ca.gov> [as of Jan. 28, 2010].)
As relevant here, the majority accurately summarizes the substance of the 2006
reforms: “In short, under Proposition 83 [and also under the Sex Offender Punishment,
Control, and Containment Act of 2006], an individual [sexually violent predator‟s]
commitment term is indeterminate, rather than for a two-year term as in the previous
version of the [SVPA]. [A sexually violent predator] can only be released conditionally
or unconditionally if the [Department of Mental Health] authorizes a petition for release
9
and the state does not oppose it or fails to prove beyond a reasonable doubt that the
individual still meets the definition of [a sexually violent predator], or if the individual,
petitioning the court on his own, is able to bear the burden of proving by a preponderance
of the evidence that he is no longer [a sexually violent predator]. In other words, the
method of petitioning the court for release and proving fitness to be released, which
under the former Act had been the way [a sexually violent predator] could cut short his
two-year commitment, now becomes the only means of being released from an indefinite
commitment when the [Department of Mental Health] does not support release.” (Maj.
opn., ante, at p. 7.)
Two recent Court of Appeal opinions have held that the 2006 reforms apply to
sexually violent predators who were already civilly committed under the SVPA.
(Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275; People v. Shields, supra, 155
Cal.App.4th 559.) But various sexually violent predators, including defendant Richard
McKee, who was convicted in 1991 of committing lewd acts against an 11-year-old
babysitter and in 1998 of committing lewd acts against his eight-year-old niece, have
challenged the reforms‟ constitutional validity. In an opinion originally certified for
publication, the Court of Appeal in this case upheld the reforms against defendant‟s
challenges, including an equal protection challenge. We granted review. Since then, six
other unanimous Court of Appeal opinions, representing five of California‟s six appellate
districts, have upheld the reforms against all challenges, including equal protection. We
have granted review in each case and are holding each pending resolution of this case.
(People v. Johnson, S164388, review granted Aug. 13, 2008; People v. Riffey, S164711,
review granted Aug. 20, 2008; People v. Boyle, S166167, review granted Oct. 1, 2008;
People v. Garcia, S166682, review granted Oct. 16, 2008; People v. Johndrow, S175337,
review granted Sept. 17, 2009; People v. Rotroff, S178455, review granted Jan. 13,
2010.) Although our grants of review effectively depublished these opinions (Cal. Rules
10
of Court, rule 8.1105(e)(1)), we may judicially notice our own records. (Evid. Code,
§§ 452, subd. (d), 459.) These records show that each of the seven Court of Appeal
panels that have decided this issue found that sexually violent predators subject to the
SVPA are not situated similarly to persons subject to other civil commitment programs
for purposes of the 2006 reforms.
Thus, seven originally published Court of Appeal opinions rejected constitutional
challenges to the 2006 reforms, including the equal protection challenge at issue here.
Until today, no court has reached a contrary result.
II. DISCUSSION
Although the majority upholds the 2006 reforms against due process and ex post
facto challenges, it finds they potentially violate equal protection principles. I disagree.
The reforms are constitutional in all respects.
I will discuss (1) whether the law must treat sexually violent predators the same as
others in deciding when to release them into society; (2) the majority‟s apparent view that
every detail of every civil commitment program is subject to strict scrutiny (see maj.
opn., ante, at pp. 21, 39); (3) out-of-state cases which, as will be seen, unanimously reject
this or closely similar equal protection contentions; and (4) the evidentiary hearing the
majority has mandated.
A. Equal Protection
“ „ “The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment.” ‟ [Citation.] „The first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has adopted a classification
that affects two or more similarly situated groups in an unequal manner.‟ [Citations.]
This initial inquiry is not whether persons are similarly situated for all purposes, but
11
„whether they are similarly situated for purposes of the law challenged.‟ [Citation.]”
(Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.)
An express purpose of the SVPA in general, and the 2006 reforms specifically, is
to protect society from sexually violent predators. This is certainly a legitimate purpose.
“The problem targeted by the [SVPA] is acute, and the state interests — protection of the
public and mental health treatment — are compelling.” (Hubbart, supra, 19 Cal.4th at p.
1153, fn. 20.) The question before us is whether sexually violent predators are situated
similarly regarding this legitimate purpose to persons who are not sexually violent
predators.
The majority finds that sexually violent predators are similarly situated for these
purposes to persons civilly committed under the Mentally Disordered Offender Act
(MDO Act) (Pen. Code, § 2960 et seq.) and that, because the 2006 reforms did not extend
to the MDO Act, those reforms potentially violate equal protection.3 (Maj. opn., ante, at
p. 28.) It orders the trial court to conduct an evidentiary hearing to “determine whether
the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based . . . .” (Maj. opn., ante, at p. 40.) If the court on remand
finds that the distinction in classes, i.e., the distinction between sexually violent predators
subject to civil commitment and others subject to civil commitment, is not reasonable and
factually based, the court presumably is to declare the Sex Offender Punishment, Control,
and Containment Act of 2006 and Proposition 83 unconstitutional. I disagree. Society
can reasonably determine that sexually violent predators present an acute danger that
3
Defendant and the majority also discuss to some extent other civil commitment
programs such as those for persons found not guilty of a crime due to insanity. Because
these programs are even farther removed from the SVPA than the MDO Act, and the
majority concentrates on the MDO Act, I will not discuss the other civil commitment
programs. What I say about the MDO Act applies even more strongly to other programs.
12
situates them differently than nonsex offenders. As it relates to the 2006 reforms, they
are situated differently for purposes of the procedures whereby they are released into
society.
The MDO Act, enacted in 1985 (People v. Allen (2007) 42 Cal.4th 91, 97),
provides for the civil commitment of mentally disordered offenders who were convicted
of one or more of a wide range of crimes. Some of the eligible crimes are sexual
offenses, but most are not. (Pen. Code, § 2962, subd. (e)(2).) For example, one of the
eligible crimes is “[a] crime in which the perpetrator expressly or impliedly threatened
another with the use of force or violence likely to produce substantial physical harm in
such a manner that a reasonable person would believe and expect that the force or
violence would be used. For purposes of this subparagraph, substantial physical harm
shall not require proof that the threatened act was likely to cause great or serious bodily
injury.” (Pen. Code, § 2962, subd. (e)(2)(Q).)
The MDO Act is thus very broad and includes in its coverage a wide range of
violent offenders. It is California‟s general involuntary civil commitment program for
mentally disordered offenders. “In contrast, the SVPA,” enacted a decade after the MDO
Act, “narrowly targets „a small but extremely dangerous group of sexually violent
predators that have diagnosable mental disorders [who] can be identified while they are
incarcerated.‟ (Stats. 1995, ch. 763, § 1, p. 5921.” (Cooley v. Superior Court, supra, 29
Cal.4th at p. 253.) Thus, sexually violent predators are a particularly dangerous subset
of the broader group of persons who may be civilly committed under the MDO Act. The
Legislature and electorate, or both, may validly enact specific provisions concerning this
particularly dangerous subset that do not apply to the broader range of persons subject to
the MDO Act. Specifically, the Legislature and the electorate may enact rules for
releasing sexually violent predators into society that are different than the rules that apply
to the general civil commitment program.
13
The majority cites virtually no authority addressing the question actually before
us — whether society may treat sex offenders differently, and less favorably, than nonsex
offenders. It relies almost exclusively on general authority that, as relevant here, merely
stands for the obvious proposition that civil commitment programs are subject to equal
protection principles.4 In re Moye (1978) 22 Cal.3d 457, for example, involved the
opposite situation from this case: treating nonsex offenders less favorably than sex
offenders. (Id. at p. 466.) I will focus, instead, on the specific issue presented.
Society — speaking usually through its elected representatives and sometimes
directly or, as here, both — has long considered sex offenders different from others and
has long prescribed specific remedies for the specific problem they present. For example,
many lifetime registration requirements apply to sex offenders that do not apply to other
offenders. (Pen. Code, § 290.) Failure of a sex offender to obey these registration
requirements can have serious consequences. As the majority opinion recognizes,
Proposition 83 itself “is a wide-ranging initiative that seeks to address the problems
posed by sex offenders.” (Maj. opn., ante, at p. 5.) It requires GPS tracking of sex
offenders and prohibits them from living within 2,000 feet of schools and parks. These
requirements do not apply to nonsex offenders. All of these requirements are reasonably
based on the perception that sex offenders are particularly dangerous. None of them
violate equal protection.
4
The majority cites only one case finding an equal protection violation that actually
involves treating sexually violent predators less favorably than others. (In re Calhoun
(2004) 121 Cal.App.4th 1315; see maj. opn., ante, at p. 28) Calhoun found an equal
protection violation in permitting persons committed under the MDO Act, but not
sexually violent predators committed under the SVPA, to refuse antipsychotic
medication. (In re Calhoun, supra, at pp. 1350-1351.) I need not consider whether
Calhoun was correct in this regard because it hardly applies here. The exact criteria for
medicating mentally disordered offenders is an entirely different matter from the
procedures adopted for releasing them into society.
14
The 2006 reforms were limited to addressing the danger that sex offenders pose.
They do not address other societal problems, such as those posed by mentally disordered
offenders governed by the MDO Act. But that circumstance does not make the reforms
unconstitutional. Addressing some societal problems but not others in a single piece of
legislation does not violate equal protection. “[B]oth the United States Supreme Court
and this court have recognized the propriety of a legislature‟s [or, presumably, the
electorate‟s] taking reform „ “one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind.” ‟ [Citation.] „[A] legislature
need not run the risk of losing an entire remedial scheme simply because it failed,
through inadvertence or otherwise, to cover every evil that might conceivably have been
attacked.‟ [Citation.]” (Kasler v. Lockyer (2000) 23 Cal.4th 472, 488.) Society
reasonably believes that sex offenders pose a particularly “acute” problem. (Hubbart,
supra, 19 Cal.4th at p. 1153, fn. 20.) It can validly address that problem without
attempting at the same time to address all other problems.
Hendricks, supra, 521 U.S. 346, the high court decision that upheld Kansas‟s
Sexually Violent Predator Act, did not specifically address an equal protection challenge.
But that does not make the decision irrelevant. Rather, Hendricks is instructive. The
high court noted that the Kansas Legislature had enacted its act “to grapple with the
problem of managing repeat sexual offenders” and had determined that existing civil
commitment programs were inadequate to confront that problem. (Hendricks, supra, at
pp. 350-351.) It also noted that “the Kansas Legislature has taken great care to confine
only a narrow class of particularly dangerous individuals . . . .” (Id. at p. 364.) In the
portion of his separate opinion agreeing with the majority, Justice Breyer added that
“[t]he Constitution does not require Kansas [or presumably California] to write all of its
civil commitment rules in a single statute or forbid it to write two separate statutes each
covering somewhat different classes of committable individuals.” (Id. at p. 377 (dis. opn.
15
of Breyer, J.).) It should be obvious that if a state enacts a new civil commitment
program to deal specifically with sexual offenders because the existing civil commitment
programs are inadequate to do so, then the new program will not be identical to the
existing programs. Creating a new program identical to an existing inadequate program
would accomplish nothing. Rather, the new program will necessarily be different and, in
some respects at least, less favorable to sexual offenders than the existing programs. So
was the case in Kansas; so is the case in California.
In short, the SVPA seeks to protect the public from sexually violent predators.
This purpose is entirely legitimate. Regarding this legitimate purpose, those predators are
situated differently from others. The Legislature and the electorate may prescribe rules
for their release into society that are different from the rules that apply to California‟s
general, much broader, civil commitment program.
B. Strict Scrutiny
I question whether the 2006 reforms are subject to strict scrutiny rather than
review under the more deferential rational basis test. (See generally People v. Wilkinson
(2004) 33 Cal.4th 821, 836-838.) I recognize that “this court has traditionally subjected
involuntary civil commitment statutes to the most rigorous form of constitutional
review . . . .” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20.) But this
court has never considered, in an adversarial setting, whether every detail of involuntary
civil commitment procedures should be subjected to strict scrutiny.
The belief that strict scrutiny adheres to commitment proceedings like the SVPA
can be traced to In re Moye, supra, 22 Cal.3d at page 465, which in turn cited People v.
Olivas (1976) 17 Cal.3d 236, 251. Olivas involved commitment of juveniles to the
California Youth Authority, so it is not on point. But it invoked strict scrutiny because
“personal liberty,” a “fundamental interest,” was at stake. (Olivas, supra, at p. 251.)
Moye cited Olivas and said that strict scrutiny applies “[b]ecause petitioner‟s personal
16
liberty is at stake.” (Moye, supra, at p. 465.) In Moye, the People had conceded that
strict scrutiny applied. (Ibid.) Because of this concession, this court has never really
grappled with the question. Here, the Attorney General argues that strict scrutiny does
not apply, and that the rational basis test should apply. He makes a strong case.
Recently, in People v. Wilkinson, supra, 33 Cal.4th 821, we rejected the notion
that strict scrutiny applies whenever a statutory classification would subject a person to a
greater period of incarceration. (Id. at pp. 837-838.) Wilkinson was a criminal case and
involved a criminal classification. This case involves civil commitments. Nevertheless,
Wilkinson teaches that we cannot simply say that a classification is subject to strict
scrutiny merely because it touches on personal liberty. A person may have a fundamental
interest in his or her liberty, but I question whether this fundamental interest extends to
all procedures whereby decisions involving personal liberty are made. As I will show in
part II. C., post, courts from other states that have considered the question have
overwhelmingly concluded that strict scrutiny does not apply to equal protection
challenges to civil commitment programs.
Sexually violent predators are certainly not a suspect class. Additionally, I
question whether a person has a fundamental interest in any particular burden or standard
of proof leading to a possible finding that he no longer qualifies as a sexually violent
predator. Penal classifications that can lead to greatly enhanced prison sentences are
subject to the rational basis test. (People v. Wilkinson, supra, 33 Cal.4th at p. 838.)
Similarly, a strong argument exists that matters regarding the burden and standard of
proof in deciding whether a person is no longer a sexually violent predator should be
governed by the rational basis test. To say that a person has a fundamental interest in a
particular burden or standard of proof trivializes the concept of what is fundamental.
The majority notes that the imposition of lifetime registration requirements on sex
offenders, but not others, is subject to rational basis review. (Maj. opn., ante, at p. 40, fn.
17
14.) But, because the stigma attached to the requirements may be great and the penal
consequences of failure to register immense, the registration requirements can have a far
greater impact on a sex offender‟s life than the exact procedures of a civil commitment
program. To say that the former is subject to rational basis review but the latter to strict
scrutiny seems contrived at best.
Ultimately, we do not have to decide the exact test that applies here, because, as I
have explained, sexually violent predators are not situated similarly to other offenders for
equal protection purposes. Moreover, the high court has not yet expressly decided the
point. (See Heller v. Doe (1993) 509 U.S. 312, 318-319.) If and when it does so, this
court will presumably follow its lead, as we have stated that equal protection analysis in
this regard is the same under both the United States and California Constitutions.
(Hubbart, supra, 19 Cal.4th at p. 1152, fn. 19.)
C. Cases from Other States
Every case outside of California of which I am aware (neither defendant nor the
majority cite any to the contrary) that has considered this or a closely similar equal
protection contention has found no violation in treating civilly committed sex offenders
less favorably than persons committed under other civil commitment programs. I discuss
some of the cases in alphabetical order by state.
The Arizona Court of Appeals rejected the argument that strict scrutiny applies to
an equal protection challenge to Arizona‟s version of the SVPA despite the fact that
personal liberty is involved: “We conclude that the rational basis test applies. Petitioners
have viewed too expansively the interest at stake. . . . [T]hey have not pointed us to, and
we have not found, a fundamental right to have particular procedures apply. The courts
that have analyzed equal protection challenges based upon the application of differing
sets of rules have applied the rational basis test, even in cases such as this one, where
liberty may ultimately be at stake. [Citations.]” (Martin v. Reinstein (Ariz. Ct. App.
18
1999) 987 P.2d 779, 796.) The court also rejected an equal protection challenge to the
Arizona act‟s treating sex offenders differently from those committed under Arizona‟s
general civil commitment statutes. Noting that the Arizona “legislature has found that
members of Petitioners‟ class [i.e., sex offenders] tend to repeat their criminal acts and
pose a higher risk of danger to the public than do other classes of mentally ill or mentally
disabled persons,” the court held “that it was not irrational or unreasonable for the
legislature to create a different classification for Petitioners.” (Id. at p. 797.)
The Florida Supreme Court also rejected the argument that strict scrutiny applies
to an equal protection challenge to the Ryce Act, Florida‟s version of the SVPA, despite
the fact that personal liberty is involved: “[Petitioner] contends that his fundamental
right to liberty is at issue here and, thus, strict scrutiny is the proper standard by which
the statute should be measured. However, we conclude that [petitioner] mischaracterizes
the nature of his equal protection claim. Even though [petitioner‟s] liberty may
ultimately be at stake, his claim challenges the Legislature‟s decision to create a special
classification for sexually violent predators and to apply special procedures to such
involuntary civil commitments. Thus, we conclude that [petitioner‟s] equal protection
claim should be evaluated under the rational basis test.” (Westerheide v. State (Fla. 2002)
831 So.2d 93, 111, citing Martin v. Reinstein, supra, 987 P.2d at pp. 795-798.)
The Florida Supreme Court also rejected an equal protection challenge to the Ryce
Act‟s treating sex offenders differently from those subject to the Baker Act, another civil
commitment program. “The Ryce Act serves the dual state interests of providing mental
health treatment to sexually violent predators and protecting the public from these
individuals. Further, the act applies equally to all members of the statutory class of
‘sexually violent predators.‟ [Petitioner‟s] equal protection argument rests on the false
premise that individuals subject to commitment under the Ryce Act are similarly situated
to mentally ill persons committed under the Baker Act. The Legislature has clearly stated
19
the reasons for distinguishing sexually violent predators from other mentally ill persons.”
(Westerheide v. State, supra, 831 So.2d at p. 112, italics added.) After citing legislative
findings comparable to those concerning California‟s SVPA, the court “conclude[d] that
the specialized treatment needs of sexually violent predators and the high risk that they
pose to the public if not committed for long-term control, care, and treatment justify the
Legislature‟s separate classification and treatment scheme. Thus, we find no equal
protection violation . . . .” (Ibid.)
The Illinois Supreme Court held that the Illinois equivalent of California‟s SVPA
“is subject to the rational basis test. . . . The statutory classifications assailed by
defendant are not based on race, national origin, sex or illegitimacy, nor do they implicate
fundamental rights.” (In re Detention of Samuelson (Ill. 2000) 727 N.E.2d 228, 236.) It
also rejected an equal protection challenge to Illinois‟s treating sex offenders differently
than those subject to commitment under a broader civil commitment act. It held that
those who qualify as sexually violent persons “present different societal problems than
those whose conduct is subject to the larger, more inclusive class as defined by” the
broader civil commitment act. (Id. at p. 237.) “Accordingly, we cannot say that the
classification formulated by the legislature is unreasonable.” (Ibid.)
The Iowa Supreme Court rejected the argument that strict scrutiny applies to an
equal protection challenge to Iowa‟s version of the SVPA, despite the fact that personal
liberty is involved: “As the Arizona Court of Appeals recently observed, governmental
classifications of the mentally ill have historically been analyzed under the rational basis
test even when individual liberty was at stake.” (In re Detention of Williams (Iowa 2001)
628 N.W.2d 447, 453, citing Martin v. Reinstein, supra, 987 P.2d at p. 796.) It also
rejected an equal protection challenge to Iowa‟s treating sex offenders differently from
those subject to commitment under other laws. “The legislation under review plainly
states the reasons for distinguishing between mentally ill sex offenders and other
20
mentally ill persons.” (Williams, supra, at p. 453.) After citing legislative findings
comparable to those concerning California‟s SVPA, the court concluded that the
distinction between sexually violent predators and those committed under another
provision “dictates different treatment, both in method and duration. As this court noted
in [another case], „[t]he particularly devastating effects of sexual crimes on victims, and
the offenders‟ need for specialized treatment provide a rational basis for the
classification.‟ [Citation.] So also here, the specialized treatment needs of [sexually
violent predators], when compared to others who suffer from different mental
abnormalities, justify the different classification and treatment chosen by the legislature.”
(Id. at p. 454.)
The Missouri Supreme Court was one of the few to subject a law comparable to
the SVPA “to strict scrutiny because it affects the fundamental right of liberty.” (In re
Care and Treatment of Coffman (Mo. 2007) 225 S.W.3d 439, 445.) Nevertheless, the
court rejected an equal protection challenge similar to the one here. In that case, the
petitioner, who had already been determined to be a sexually violent predator, sought to
be released from civil commitment. Under the Missouri law, in order to obtain a jury
trial, he had to either (1) receive authorization from the director of the department of
mental health, or (2) show by a preponderance of the evidence that he should be released.
(Id. at p. 443.) The petitioner argued “that the requirement that he demonstrate his
entitlement to release by a preponderance of the evidence violates equal protection
because „[n]o other person involuntarily civilly committed must make a preliminary
showing to a trial court of facts “warranting” a second trial[.]‟ ” (Id. at p. 445.) The
court disagreed. “This argument ignores the fact that persons who are committed as
sexually violent predators are committed because they are „distinctively dangerous‟ to
society. [Citation.] Because the basis for commitment of sexually violent predators is
different from general civil commitments, there is no requirement that sexually violent
21
predators be afforded exactly the same rights as persons committed under the general
civil standard. [Citation.] The requirement that a sexually violent predator demonstrate
his initial right to release by a preponderance of the evidence is narrowly tailored to the
state‟s interest in keeping people committed if it is more likely than not that they will
commit sexually violent crimes if released. The . . . statute does not violate the equal
protection clause.” (Ibid.)
The North Dakota Supreme Court did not decide what level of scrutiny North
Dakota‟s equivalent of the SVPA should receive because the North Dakota law “survives
[the] equal protection challenge under even the highest level of scrutiny.” (In re P.F.
(N.D. 2008) 744 N.W.2d 724, 731.) “There are important differences between those
committed because the court has determined they are sexually dangerous and those
committed because of mental illness or chemical dependency.” (Id. at pp. 731-732.)
“The potential level of danger these two groups pose to society is different. Sexually
dangerous individuals are distinctively dangerous due to the high probability that they
will commit further acts of sexually predatory conduct if not confined in a secure
facility.” (Id. at p. 732.) “The State has a compelling interest in protecting the public,
and that interest justifies treating sexually dangerous individuals differently.” (Ibid.)
“The heightened risk sexually dangerous individuals pose and the State‟s compelling
interest in protecting the public justify the classification and differences in the treatment
of sexually dangerous individuals, and the distinct procedures and safeguards further the
State‟s interest in protecting the public.” (Id. at p. 733.) Accordingly, the court found
no equal protection violation in treating sexually dangerous persons differently than
others. (Ibid.)
The South Carolina Supreme Court applied the rational basis test to an equal
protection challenge to South Carolina‟s equivalent of the SVPA. (In re Treatment and
Care of Luckabaugh (S.C. 2002) 568 S.E.2d 338, 351.) Citing with approval In re
22
Detention of Williams, supra, 628 N.W.2d 447, the also court rejected the challenge. “To
require the Legislature to treat the two groups [sexually violent predators and those
committed under another civil commitment process] similarly would require overruling a
rational determination that sexually violent predators have certain characteristics which
make their treatment needs different from other involuntarily committed individuals. The
potential danger to the community provides a rational reason why sexually violent
predators should be treated differently than other committed patients. The classification
is not plainly arbitrary, but, instead, is reasonable in light of the differences between the
two groups. [Citation.]” (Luckabaugh, supra, at p. 352.)
Washington applies the rational basis test to equal protection challenges to its
version of the SVPA. (In re Detention of Stout (Wn. 2007) 150 P.3d 86, 96.) The
Washington Court of Appeals rejected an equal protection challenge quite similar to the
one of this case. “[Appellant] argues that the differences . . . in the release procedures
violate his right to equal protection. . . . [¶] There is a rational basis for treating sexually
violent predators and other mentally ill persons differently with respect to release
procedures. . . . [D]ifferences in dangerousness, treatment methods, and prognosis for the
mentally ill and violent sex offenders justify treating the two groups differently. [¶] . . .
[A]llowing those committed under [the civil commitment statute for other mentally ill
persons] to be released solely on the recommendation of the superintendent but requiring
a show cause and a full evidentiary hearing before sexually violent predators are released
does not violate equal protection.” (Petersen v. State (Wn. Ct. App. 2000) 36 P.3d 1053,
1057, fns. omitted.)
The Wisconsin Supreme Court declined to decide whether strict scrutiny or
rational review applies to an equal protection challenge to Wisconsin‟s version of the
SVPA because it was not necessary to do so. (State v. Post (Wis. 1995) 541 N.W.2d 115,
130.) It considered an equal protection challenge to the release procedures that apply in
23
Wisconsin to sexually violent persons, which are closely similar to the California
procedures challenged in this case, and which, like the analogous California procedure,
are more stringent than the procedures under Wisconsin‟s general civil commitment
statute. (Id. at p. 128, fn. 22.) It then rejected that challenge: “[T]he people can choose,
through their duly elected representatives, to address complex social problems in more
than one way. . . . [¶] . . . The legislature has determined that, as a class, persons
predisposed to sexual violence are more likely to pose a higher level of danger to the
community than do other classes of mentally ill or mentally disabled persons. This
heightened level of dangerousness and the unique treatment needs of sexually violent
persons justify distinct legislative approaches to further the compelling governmental
purpose of protection of the public.” (Id. at p. 130.)
D. The Evidentiary Hearing
The majority today orders a superior court judge to conduct an evidentiary hearing
to decide whether society may take steps to protect itself from sexually violent predators
that differ from steps it takes regarding persons subject to California‟s general
involuntary civil commitment program. At the hearing, “[t]he trial court may, if
appropriate, permit expert testimony.” (Maj. opn., ante, at p. 37.) The purpose of the
hearing, according to the majority, is to give the government the opportunity to
demonstrate that the 2006 reforms are “based on a reasonable perception of the unique
dangers that [sexually violent predators] pose rather than a special stigma that [sexually
violent predators] may bear in the eyes of California‟s electorate.” (Maj. opn., ante, at p.
39.) (The majority opinion should, but does not, add “and the California Legislature.”)
At the evidentiary hearing, however, the court apparently is not to resolve any
factual dispute in the way courts normally do. The majority adds that “mere
disagreement among experts will not suffice to overturn the Proposition 83 amendments
[and, presumably, the Legislature‟s amendments]. The trial court must determine
24
whether the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based — not whether they are incontrovertible or
uncontroversial.” (Maj. opn., ante, at p. 40.)
Fortunately, I will not be the trial judge who has to try to make sense of these
pronouncements on remand, but apparently the trial court will not be allowed to resolve a
factual dispute among experts. Indeed, the majority seems to give the trial court
discretion to prohibit expert testimony entirely, for it says that the court “may” admit
such testimony “if appropriate.” The majority does not suggest under what
circumstances expert testimony might be inappropriate, but noting that expert testimony
might be admitted if appropriate implies that nonexpert testimony might be appropriate
instead. If expert testimony is found inappropriate, what kind of testimony would be
appropriate? Anecdotal evidence about particular sexually violent predators who, in the
view of the witness, either are or are not as dangerous as sexually violent predators? Or,
conversely, anecdotal evidence about particular persons subject to the MDO Act who, in
the view of the witness, either are or are not as dangerous as sexually violent predators?
Or perhaps testimony from a person who was (or was not) the victim of a sexual crime
that, in the witness‟s view, sexually violent predators in general either are or are not
particularly dangerous? None of this would be helpful, and surely either side could find
plenty of witnesses to supply whatever testimony of that kind it desired.
The majority states it is not contemplating the use of nonexpert testimony. (Maj.
opn., ante, at p. 38, fn. 12.) That is reassuring, but if so, it seems the hearing on remand
will necessarily turn on expert testimony. Whether society should treat sex crimes and
their perpetrators differently from those who commit other crimes, however, is a
judgment call for society to make, not a “fact” for a judge to determine after an
evidentiary hearing. In Powell v. Texas (1968) 392 U.S. 514, the United States Supreme
Court rejected a constitutional challenge to making public intoxication a crime. There,
25
the trial court, in invalidating the law, purported to make factual findings that alcoholism
is a disease that a person cannot control. The high court rejected these findings:
“Whatever else may be said of them, these are not „findings of fact‟ in any recognizable,
traditional sense in which that term has been used in a court of law . . . .” (Id. at p. 521.)
Similarly, whether the California legislature, the California electorate, and legislatures
throughout the country may reasonably treat sex offenders as a separate category with
separate remedies is not a fact comparable to other facts that trial courts determine.
Neither sociology nor penology is an exact science. This court and the high court have
already described sexually violent predators as “ „extremely dangerous‟ ” (Cooley v.
Superior Court, supra, 29 Cal.4th at p. 253) or “particularly dangerous” (Hendricks,
supra, 521 U.S. at p. 364). An evidentiary hearing cannot change that.
Moreover, the victims of sexual crimes are especially likely to be traumatized
because, as the Iowa Supreme Court noted, sexual crimes have “ „particularly devastating
effects‟ ” on the victims. (In re Detention of Williams, supra, 628 N.W.2d at p. 454.)
The exact nature of these effects and this traumatization cannot be quantified at an
evidentiary hearing, but I reject the notion that a single judge could conclude that it is
unreasonable to view the traumatizing effects of sexual crimes as different from the
effects of other crimes.
In upholding Kansas‟s version of the SVPA, the high court stressed that
legislatures must be given the widest latitude to legislate in areas fraught with medical
and scientific uncertainty. (Hendricks, supra, 521 U.S. at pp. 360, fn. 3, 370.) That
describes this situation. How to treat sex crimes is “analytically nuanced” and, as such,
we must defer to the legislative branch. (Hubbart, supra, 19 Cal.4th at p. 1156.) The
California Legislature and electorate must be given the widest latitude to legislate in this
area, which is why the high court upheld Kansas‟s SVPA, and why courts throughout the
nation have upheld their states‟ versions of the SVPA.
26
The majority cites some specific factual statements by Proposition 83‟s proponents
and the proponents‟ reference to a “1998 report” as also warranting an evidentiary
hearing. (Maj. opn., ante, at p. 33.) I disagree for two reasons. First, the issue before us
is whether society may treat sex offenders differently from other offenders, not whether
specific factual claims by proponents of legislation are correct. Second, the Legislature
did not rely on those findings and that report when it enacted the Sex Offender
Punishment, Control, and Containment Act of 2006. Thus, even if a perceived
inaccuracy in the factual findings cited by Proposition 83‟s proponents would provide a
reason to overturn that initiative measure, the inaccuracy would provide no reason to
overturn the Legislature‟s identical provisions.
The majority acknowledges only obliquely, in a footnote near the end of its
opinion, that the Legislature also enacted the reforms the majority finds potentially
invalid. (Maj. opn., ante, at p. 38, fn. 12.) Then it gets technical. It says, “The People
have not addressed whether the legislative history of that statute contains any justification
for treating [sexually violent predators] differently from [mentally disordered offenders]
and may do so on remand.” (Ibid.) (However, the majority also directs the Court of
Appeal to remand the matter to the trial court for further proceedings consistent with its
opinion, i.e., for an evidentiary hearing. (Maj. opn., ante, at p. 41.) Thus, it is not clear
when the People are supposed to have the opportunity to defend the Legislature‟s
actions.) I agree the People have not made a separate argument that the Sex Offender
Punishment, Control, and Containment Act of 2006 is valid even if Proposition 83 is
invalid. Such an argument would seem unnecessary given that the two provisions are
identical as relevant here. But at least the People have noted that both the Legislature and
the electorate enacted the reforms at issue. Defendant never even cites the Legislature‟s
actions. If we are to get technical, I suppose we would have to say that defendant
challenges only Proposition 83, and not also the Legislature‟s enactment of the same
27
reforms. If so, today‟s opinion only could endanger Proposition 83 and not also the
Legislature‟s reforms. It may seem absurd to invalidate one but not the other, given that
they are identical, but that seems to be the necessary consequence of the majority‟s
refusal to confront directly the fact that the legislation it finds potentially unreasonable
was enacted by both the Legislature and the electorate.
The majority confidently asserts that any ruling invalidating the reforms of 2006
would not endanger the constitutional validity of other ways in which society has treated
sex offenders differently from others, for example, by imposing lifetime registration
requirements. (Maj. opn., ante, at p. 40, fn. 14.) I hope future potential litigants and
courts will heed this assertion. But if the result of the mandated evidentiary hearing is the
trial court‟s finding that the 2006 reforms are not “based on a reasonable perception of
the unique dangers that [sexually violent predators] pose,” but rather are based on “a
special stigma that [sexually violent predators] may bear in the eyes of California‟s
electorate [and the Legislature]” (maj. opn., ante, at p. 39) — and thus the 2006 reforms
violate equal protection guarantees — it is hard to imagine how society could reasonably
impose lifetime registration requirements on those same persons that are not imposed on
others.
I need not resolve this conundrum, because I believe the law may use different
procedures for deciding when to release sexually violent predators into society than it
uses regarding other civilly committed persons. No evidentiary hearing can invalidate
this legislative choice.
III. CONCLUSION
The majority has empowered a single superior court judge to find unreasonable all
of the following: the unanimous judgment of both branches of California‟s Legislature;
the overwhelming judgment of the California electorate; the judgment of legislatures
throughout the nation; and the decision of the United States Supreme Court approving of
28
the Kansas Legislature‟s determination that sexually violent predators present risks that
the state‟s general involuntary commitment procedure was inadequate to address. This
action is contrary to the unanimous judgment of all seven Court of Appeal opinions that
considered this precise question in originally published opinions, as well as the judgment
of courts around the nation that have rejected equal protection challenges to their states‟
equivalent of the SVPA. I cannot agree. Whether sexually violent predators present a
distinct danger warranting unique remedies is for society to determine, not a trial judge.
Accordingly, I dissent from the majority‟s equal protection holding. I would
affirm entirely the judgment of the Court of Appeal.
CHIN, J.
I CONCUR:
BAXTER, J.
29
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. McKee
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 160 Cal.App.4th 1517
Rehearing Granted
__________________________________________________________________________________
Opinion No. S162823
Date Filed: January 28, 2010
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Peter Gallagher
__________________________________________________________________________________
Attorneys for Appellant:
Steven M. Hinkle, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Barry Carlton, Steve Oetting and Bradley A. Weinreb, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Steven M. Hinkle
3529 Cannon Road, Suite 2B-311
Oceanside, CA 92056
(760) 295-1541
Bradley A. Weinreb
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2290
Petition for review after the Court of Appeal affirmed an order of commitment as a sexually violent predator. This case includes the following issues: (1) Was defendant denied due process when he was committed under the Sexually Violent Predator Act, as amended by Proposition 83 in 2006, because the amended Act permits commitments for an indeterminate term and, in hearings subsequent to the initial commitment hearing, places the burden on the defendant to prove he is no longer a danger to society? (2) Did defendant's commitment under the amended Act violate the prohibition against ex post facto laws? (3) Did the commitment violate defendant's right to equal protection?
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 01/28/2010 | 47 Cal. 4th 1172, 223 P.3d 566, 104 Cal. Rptr. 3d 427 | S162823 | Review - Criminal Appeal | submitted/opinion due | PEOPLE v. JOHNSON (S164388) |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Bradley A. Weinreb Office of the Attorney General 110 West "A" Street, Suite 1100 P.O. Box 85266 San Diego, CA |
| 2 | McKee, Richard (Defendant and Appellant) P. O. Box 15409 San Luis Obispo, CA 93406 Represented by Stephen Merritt Hinkle Attorney at Law 3529 Cannon Road, Suite 2B-311 Oceanside, CA |
| Opinion Authors | |
| Opinion | Justice Carlos R. Moreno |
| Dissent | Justice Ming W. Chin |
| Dockets | |
| Apr 21 2008 | Received premature petition for review Richard McKee, defendant and appellant Stephen Hinkle, appointed counsel Petition to be filed April 22 |
| Apr 22 2008 | Case start: Petition for review filed |
| Apr 23 2008 | Record requested |
| Apr 25 2008 | Received Court of Appeal record one doghouse |
| Jun 20 2008 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including July 21, 2008, or the date upon which review is either granted or denied. |
| Jul 9 2008 | Petition for review granted (criminal case) Votes: George, C.J., Kennard, Werdegar, Moreno, and Corrigan, JJ. |
| Jul 28 2008 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Stephen M. Hinkle is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| Jul 30 2008 | Issues ordered limited This issue to be briefed and argued is limited to the following: Does the amended Sexually Violent Predator Act violate appellant's constitutional rights to due process of law, is it an illegal ex post facto law, and does it violate equal protection? (Cal. Rules of Court, rule 8.516(a)(1).) George, C.J., was absent and did not participate. |
| Aug 25 2008 | Opening brief on the merits filed Appellant Richard McKee by Stephen M. Hinkle, Supreme Court Appointed Counsel |
| Sep 17 2008 | Compensation awarded counsel Atty Hinkle |
| Sep 18 2008 | Request for extension of time filed to and including October 24, 2008, to file respondent's answer brief on the merits by Bradley A. Weinreb, Deputy Attorney General (Filed in San Diego) |
| Sep 23 2008 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 24, 2008. |
| Oct 17 2008 | Answer brief on the merits filed Respondent People by Bradley A. Weinreb, Deputy Attorney General - San Diego (Filed in San Diego) |
| Oct 31 2008 | Reply brief filed (case fully briefed) Richard McKee, defendant and appellant by Stephen M. Kinkle, counsel |
| Dec 11 2008 | Received: Letter from Attorney Stephen M. Hinkle, counsel for Mr. McKee. Counsel is unavailable the weeks of January 12, 2009 through January 23, 2009, and February 23, 2009 through March 10, 2009. |
| Aug 12 2009 | Received: Letter from Attorney Stephen M. Hinkle, counsel for appellant, that he will be unavailable for argument during the periods of: 9-4-2009 through 9-18-2009, 10-8-2009 through 10-16-2009, February 22, 2010 through March 5, 2010, and March 15, 2010 through March 19, 2010, due to previous commitments. |
| Oct 1 2009 | Case ordered on calendar to be argued Tuesday, November 3, 2009, at 1:30 p.m., in Berkeley |
| Oct 14 2009 | Request for extended media coverage filed by The California Channel. |
| Oct 16 2009 | Request for extended media coverage granted The request for extended media coverage, filed by The California Channel on October 14, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court. |
| Oct 30 2009 | Received: (by fax) Letter dated 10-29-2009 by Bradley A. Weinreb, Deputy AG-Diego, re additional cites. |
| Nov 3 2009 | Cause argued and submitted |
| Jan 27 2010 | Notice of forthcoming opinion posted To be filed Thursday, January 28, 2010 at 10 am. |
| Briefs | |
| Aug 25 2008 | Opening brief on the merits filed |
| Oct 17 2008 | Answer brief on the merits filed |
| Oct 31 2008 | Reply brief filed (case fully briefed) |
| Brief Downloads | |
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| Jun 18, 2011 Annotated by emma laughlin | Facts In 1991, Richard McKee was convicted of committing lewd acts against both an 11 year old girl and an 8 year old girl. In 2004, the state filed a petition to establish him as a Sexually Violent Predator (SVP), which is defined as “a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior.” Under the Sexually Violent Predators Act that was in effect at that time, if a jury found beyond a reasonable doubt that he was an SVP, McKee could be committed to the Department of Mental Health (DMH) for a period of two years. After two years, his commitment could not be extended unless the state filed a new petition that stated that he was still an SVP, and proved this beyond a reasonable doubt in front of a jury. Under this version of the law, the burden of proof was on the state to prove that he was still an SVP every two years, or he would be released. This law was amended through Proposition 83 in 2006. Welf. & Inst. Code § 6600 et seq. Under the amended law, after a person was declared to be an SVP by a jury, he would be detained for an indefinite period of time and the burden of proof shifted to him to show that he was no longer an SVP before he could be released. After Proposition 83 passed, the state filed an amended petition and requested that McKee be confined for an indefinite period of time. The jury found that beyond a reasonable doubt, McKee was an SVP, and he was confined with the DMH for an indefinite period. Under the amended law, there are only two ways McKee could be released. First, the DMH could decide that he was no longer a SVP, and would authorize McKee to petition the court for a conditional release or an unconditional release. If the court agrees that there is probable cause that McKee is no longer an SVP, then the court will schedule a trial on the issue. At that trial, the burden of proof is on the state to prove that beyond a reasonable doubt that he is still an SVP. If the state cannot uphold that burden, McKee would be released. If the DMH does not decide that McKee is no longer an SVP and so authorize him to petition the court, McKee still has the right to petition the court once a year. If the court agrees that there is probable cause that he is no longer an SVP, then the court will schedule a trial on the issue. At this trial, however, McKee will have the burden of proof by preponderance of the evidence to prove that he is no longer an SVP. Under the amended act, the burden of proof shifted from the state, to prove every two years that McKee was still an SVP, to McKee, to prove that he is not an SVP. McKee will remain in custody until he bears the burden of proof that he is no longer an SVP, or the DMH decides that he is no longer an SVP. Procedural History McKee appealed his indefinite commitment with DMH on multiple grounds: Proposition 83 violated federal and state due process; Proposition 83 as applied to him violated the federal constitutional prohibition on punitive ex post facto laws; Proposition 83 violated equal protection; that there was insufficient evidence presented; and that the jury instructions were inadequate. The appellate court rejected all of McKee’s claims. People v. McKee (2008) 160 Cal.App.4th 1517. On appeal to the California Supreme Court, the Court agreed to hear McKee’s constitutional claims: that Proposition 83 violated due process and equal protection, and as applied to him is a punitive ex post facto law. Issues 2. Is it a violation of ex post facto to indefinitely confine McKee? 3. Is it a violation of equal protection to indefinitely confine Sexually Violent Predators? A. Are Sexually Violent Predators similarly situated with either NGIs or MDOs? B. If so, are Sexually Violent Predators treated less favorably than NGIs or MDOs? C. If so, does the state have justification for treating NGIs differently? Holding The Court rejected his due process and ex post facto claims, but found that his equal protection claim had merit and that SVPs are similarly situated to both NGIs and MDOs, and SVPs were treated less favorably than NGIs and MDOs. The Court remanded the case for a hearing on whether the state had a justification for treating SVPs less favorably. Analysis Due Process Claim McKee claimed that Proposition 83 violated his due process rights. He based his due process claim a United States Supreme Court case, Addington v. Texas. Addington v. Texas, 441 U.S. 418 (1979). In Addington, the Court held that it was a violation of due process for a statute to indefinitely confine someone after a trial where the state proved the person was mentally incompetent only by a preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 432-33 (1979). The Court required that the standard of proof be at least clear and convincing evidence. McKee argued that under Addington, the state must prove that he is an SVP by clear and convincing evidence, not just at the initial commitment hearing, but also at periodic subsequent hearings. The California Supreme Court rejected this expansion of Addington, relying primarily on a second United States Supreme Court case, Jones v. United States, where the Court rejected a due process challenge. Jones v. United States, 463 U.S. 354 (1983). The Court found that it was constitutional to require a person found not guilty of a criminal charge by reason of insanity (NGI) to be confined unless the person could prove by a preponderance of the evidence that he was no longer mentally ill or dangerous. The California Supreme Court applied the logic from Jones to this case, indicating that although McKee was not an NGI, he was found to be an SVP beyond a reasonable doubt, and the Court found that this is the functional equivalent to being acquitted by reason of insanity: both were a declaration that the person suffers from a mental illness and is dangerous. People v. McKee (2010) 47 Cal.4th 1172, 1192-93. Since the United States Supreme Court had not found a due process violation in Jones, the California Supreme Court found that there was no due process violation here. The Court did indicate that the SVP statute was unclear on whether the state was required to provide McKee with access to a mental health expert to show that he was no longer an SVP, and indicated that not providing McKee with a mental health expert’s help would be a violation of due process. However, the Court interpreted the statute to require the state to provide access to mental health experts, thus avoiding this issue. 47 Cal.4th at 1191. Ex Post Facto Claim McKee argued that as applied to him, Proposition 83 violated the federal constitutional prohibition against ex post facto punitive laws because Proposition 83 was used to increase his punishment. U.S. Const. art. I, § 10, cl. 1. This provision of the Constitution only applies to criminal laws, so McKee first had to prove that Proposition 83 was punitive in nature. Collins v. Youngblood, 497 U.S. 37, 43 (1990). The Court had already decided that the Act was not punitive in Hubbart v. Superior Court, but that case was decided before the Act was amended by Proposition 83. Hubbart v. Superior Court (1999) 81 Cal.Rptr.2d 492. Part of the analysis in Hubbart noted that the state had to prove that the individual was still an SVP every two years. McKee argued that Hubbart relied on that provision of the Act in its analysis, and since Proposition 83 changed that provision of the Act, the Act is now punitive. The Court found that this provision was not indispensible to its decision, so changing that provision did not make the Act punitive. 47 Cal.4th at 1194. In addition, McKee argued that the Proposition 83 amendments made the Act punitive because the Proposition included a number of changes to California’s criminal laws, and so the entire proposition was punitive. The Court rejected this argument. 47 Cal.4th at 1194-95. McKee also argued that the seven-factor test from Kennedy v. Mendoza-Martinez showed that Proposition 83 violated ex post facto. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court found that although one of the factors, affirmative restraint on liberty, was in McKee’s favor, four other factors were not. 47 Cal.4th at 1195. The Court held that Proposition 83 was not punitive and so did not violation ex post facto. Equal Protection Claim McKee’s third constitutional claim was that Proposition 83 violated his right to equal protection. The Court found this claim had merit and that SVPs are similarly situated to MDOs and NGIs, and SVPs are treated less favorably. The Court remanded for a hearing to determine whether the state was justified in treating SVPs less favorably. McKee’s claim was that he is similarly situated to Mentally Disordered Offenders (MDOs) and/or offenders who were found not guilty by reason of insanity (NGIs), that the laws dictating release of both MDOs and NGIs are more lenient than the laws dictating McKee’s release, and that the state had no justification for treating SVPs less favorably. The court looked at a similar case where it had found that for an equal protection analysis, NGIs were similarly situated with MDOs. In re Moye (1978) 22 Cal.3d 457. In Moye, the Court found that since NGIs are similarly situated with MDOs (or MDSOs, as they were under the statute enacted then) then the burden of proof for an individual to get released should be the same for both NGIs and MDOs. Under the law that existed then, MDOs served their sentence in an institution instead of prison, and were automatically released from confinement after their sentence expired unless the state could prove that extended commitment was necessary. In contrast, NGIs were confined until they could prove that they were no longer a threat. The burden of proof for MDOs was on the state to continue confinement, while the burden of proof for NGIs was on the individual to prove that he should be released. The Court found that equal protection demanded that MDOs and NGIs be treated similarly, and NGIs could no longer be held beyond the maximum term for the offense they committed while they were insane unless the state could prove that they were still a threat and still needed to be committed. This switched the burden of proof for NGIs away from the individual and to the state, so the state had to affirmatively prove that the individual still needed to be confined. 47 Cal.4th at 1197-98. Analyzing McKee’s claim, the Court found that SVPs are similarly situated with MDOs. This overruled the Court of Appeals, which had found that they were not similarly situated. Both SVPs and MDOs have been found, beyond a reasonable doubt, to suffer from a mental disorder that renders them dangerous to others; both have been convicted of a serious or violent felony; at the end of their prison terms, both were civilly committed; the purpose of both commitments it the same- to protect the public from dangerous offenders with mental disorders and provide mental health treatment for their disorders. 47 Cal.4th at 1203. The People contested this finding, arguing that MDOs are people with severe mental disorders that may be kept in remission with treatment, while SVPs are people with mental disorders that may never be successfully treated. 47 Cal.4th at 1205. The Court found that based on the text of the statutes, this distinction could not be made, since the MDO statute included a section of people who were in remission because of treatment and a section of people who were not in remission and were presumably not responding to treatment. This second group, those who are not in remission, are like the SVPs who may never be successfully treated. 47 Cal.4th at 1205-06. The Court also found that SVPs are afforded less favorable procedural protections than MDOs. After they have served their prison sentence for their underlying offense, SVPs face indefinite commitments and have the burden of proving that they should be released, while MDOs are committed for a one-year period after they have served their prison sentence for their underlying offense and are then released unless the state can prove that beyond a reasonable doubt the individual should still be committed. 47 Cal.4th at 1202. The Court then found that NGIs and SVPs are similarly situated, without providing analysis for why they are. 47 Cal.4th at 1207. Presumably it is because MDOs and NGIs were found similarly situated in the cases analyzed above. This correlation may not be accurate, however, since the Court notes the proper question is whether two groups are similarly situated for the purpose of the law challenged. 47 Cal.4th at 1202. Just because MDOs and NGIs were similarly situated for the purposes of the law challenged in Moye, that does not mean that they were similarly situated in the same way that MDOs and SVPs are similarly situated. It could be inaccurate to assume that just because both NGIs and MDOs are similarly situated for the purposes of one law, they would also be similarly situated with each other for another law. Here, however, this inference seems valid: the purpose of all three laws is similar enough that they can all be considered similarly situated for the purpose of an equal protection analysis. After finding that NGIs and SVPs are similarly situated, the Court found that SVPs receive less favorable procedural protections than NGIs. NGIs are institutionalized instead of imprisoned for their underlying offense. After the case analyzed above, Moye, NGIs cannot be institutionalized for longer than the maximum sentence they would have received for the underlying offense, unless the state can prove beyond a reasonable doubt in a jury trial that the person presents a substantial danger of physical harm to others because of the mental disorder. The Court then turned to whether the state had justified the differences between the procedural protections afforded to for SVPs and MDOs. Since both are civilly committed, the differentiation must be based on the goals of the statutes: treatment of the mentally disordered or public protection. 47 Cal.4th at 1204. For criminal statutes, the legislature has more discretion on what punishments they can provide than they do for civil commitment statutes. The Court required that the People meet the burden of proof from strict scrutiny and show that it had a compelling interest for treating the two groups differently. That was the standard applied in Moye, but in that case the People agreed that was the correct standard. 47 Cal.4th at 1197-98. Here the People contested this standard, and argued that a more lenient standard should be applied instead. 47 Cal.4th at 1222-23. The Court found that the People had not yet upheld its burden of justifying the differences between the procedural protections given to SVPs and MDOs. Similarly, the Court found that People had not yet met its burden of justifying the differences between the procedural protections given to SVPs compared to the procedural protections given to NGIs. The Court remanded the case back to the trial court for further development of this issue. At trial, the state must show that notwithstanding the similarities between SVPs, MDOs, and NGIs, SVPs pose a substantially greater risk to society and therefore imposing on them a greater burden before they can be released from commitment is necessary to protect society. The trial court must find that the distinctions in procedural protections given to these groups are reasonable and factually based. 47 Cal.4th at 1208, 1210-11. Dissent Justice Chin wrote a dissent, and Justice Baxter concurred with it. Chin disagreed that SVPs are similarly situated with NGIs and MDOs, but the analysis applies equally to whether the legislature had a valid reason for treating SVPs differently than NGIs or MDOs. The dissent found SVPs pose a greater risk to society and so the additional burden imposed on them before they can be released is justified. SVPs are a particularly dangerous subset of MDOs, and that is justification enough for treating them differently. 47 Cal.4th at 1220. Unlike the NGIs and MDOs, SVPs are sexually violent people, and sexual crimes are often more devastating for the victim than other types of crimes. 47 Cal.4th at 1212. The dissent also argues that the test used to determine whether the state’s justification for treating SVPs differently should not be strict scrutiny, and should instead be rational basis. This is based on the fact that SVPs are not a suspect class. The Court did not develop this issue in the majority decision. 47 Cal.4th at 1222-24. The dissent then lists a number of other state court decisions where the courts found that there is no equal protection violation for treating SVPs, or the state equivalent, differently than MDOs. 47 Cal.4th at 1224-28. Related Cases Addington v. Texas, 441 U.S. 418 (1979). Tags Equal Protection; Due Process; Ex Post Facto; Sexually Violent Predator Act; Sexual Violent Predators; SVP; Mentally Disordered Offenders; MDO; Not Guilty by Reason of Insanity; NGI; Department of Mental Health; Proposition 83; Civil Confinement; Indefinite Confinement; Similarly Situated; Burden Annotation by Emma Laughlin |
