Supreme Court of California Justia
Citation 42 Cal.4th 1251 original opinion
In re Smith

Filed 3/24/08


Ct.App. 2/7 B184548

on Habeas Corpus.
Los Angeles County
Super. Ct. No. ZM007064

Under the Sexually Violent Predator Act (SVP Act), Welfare and
Institutions Code section 6600 et seq., a person can be civilly committed as a
sexually violent predator at the conclusion of a felony prison term, provided he or
she has prior convictions for certain sexually violent offenses and a jury finds the
person has a mental disorder that makes it likely he or she will engage in sexually
violent criminal behavior. In the present case, after SVP commitment proceedings
were initiated against petitioner, the felony conviction that was the basis of his
custody at the time these proceedings were commenced was reversed by this court
on appeal. (People v. Smith (2004) 32 Cal.4th 792, 796-799 (Smith).) The
prosecutor declined to retry him. The question this case poses is whether an SVP
commitment can nonetheless proceed under these circumstances. In answering
this question, we must construe language in section 6601, subdivision (a)(2),
providing that an SVP petition “shall not be dismissed on the basis of a later
judicial or administrative determination that the individual’s custody was
unlawful, if the unlawful custody was the result of a good faith mistake of fact or

We conclude that both the People and petitioner make reasonable
arguments, based on the language and legislative history of the statute — the
former that an SVP commitment is authorized under these circumstances, the latter
that it is not. Based on substantial constitutional concerns, however, and the
practice of construing statutes where reasonable to avoid difficult constitutional
questions, we hold that an SVP commitment would not be authorized in these
circumstances, and therefore reverse the Court of Appeal.
The facts of this case are not in dispute. In 1982, Smith was convicted of
four counts of oral copulation on a child under the age of 16 years (Pen. Code,
§ 288a, subd. (b)(2)) and one count of sodomy of a child under the age of 16 years
(Pen. Code, § 286, subd. (b)(2)). In 1988, Smith was convicted of 15 counts of
committing lewd and lascivious acts on a child under the age of 14 years (Pen.
Code, § 288, subd. (a).). Smith was released on parole in July 1995 and completed
parole in July 1998.
As recounted in Smith, Smith was obligated to register as a sex offender
because of his prior offenses. (Smith, supra, 32 Cal.4th at p. 795.) In April 1999,
Smith moved to Colorado from California; then, nine days later, he moved to New
York. He claimed that he sent a change-of-address card to the Long Beach Police
Department in a timely manner, but the officer responsible for sex offender
registration testified that he did not receive any such card. When Smith did not
appear in September 1999 to complete his annual registration, the Long Beach
police began searching for him. Smith was arrested in New York. (Ibid.)
Convicted of failing to register as a sex offender (Pen. Code, § 290, former
subd. (g)), Smith was sentenced to five years in state prison on October 26, 2000.
(Smith, supra, 32 Cal.4th at pp. 796-797.) The Court of Appeal affirmed his
conviction on June 18, 2002. Smith petitioned for review of his conviction in this
court, and we granted review on September 18, 2002.
While petitioner was awaiting resolution of his appeal in this court, he was
referred to the State Department of Mental Health for evaluation as a possible
SVP, pursuant to Welfare and Institutions Code section 6601.1 Two initial
psychiatric evaluators disagreed on whether Smith met the SVP criteria, which
triggered examination by two additional evaluators, who this time agreed that he
did. On December 15, 2003, the Los Angeles County District Attorney filed a
petition to have petitioner committed as an SVP. On March 2, 2004, petitioner
was released from prison custody to the custody of the Los Angeles County
Sheriff’s Department on the basis of the pending SVP petition.2
On March 29, 2004, we reversed Smith’s conviction. His defense had been
that he sent the notification of change of address to the Long Beach police and it
had been lost or not received through no fault of his own. We concluded the trial
court committed reversible error by instructing a deadlocked jury, in response to a
juror question, that a person subject to Penal Code section 290 has the obligation
to ensure that notification of a change of address has been received by the police.
(Smith, supra, 32 Cal.4th at pp. 796-799.) The district attorney elected not to
refile charges against Smith, who was already due to be released on parole by the
time his conviction was reversed.

All statutory references are to this code unless otherwise indicated.
The briefing discloses that Smith was due to be released on parole on
January 1, 2004. He remained in custody at the California Men’s Colony in San
Luis Obispo in order to undergo throat cancer treatment until March 2, 2004, when
he was transferred to the Los Angeles County jail under authority of the pending
SVP petition.

After his conviction was reversed, and before the SVP commitment
proceedings progressed any further, petitioner filed a number of habeas corpus
petitions challenging the continuation of these proceedings. On July 20, 2005,
petitioner filed a habeas corpus petition in the Court of Appeal and that court
issued an order to show cause. After briefing, oral argument, and supplemental
briefing, the Court of Appeal issued an opinion denying petitioner relief. As
elaborated below, the court rejected Smith’s argument that the SVP Act did not
authorize commitment once his most recent conviction had been reversed, and also
rejected his argument that his continued commitment violated his rights to due
process and equal protection. We granted Smith’s petition for review.
A. SVP Act
Before addressing the issue in the case, we first review the SVP Act. Under
section 6601, subdivision (a)(1) (hereafter section 6601(a)(1)), “an individual who
is in custody under the jurisdiction of the Department of Corrections, and who is
either serving a determinate prison sentence or whose parole has been revoked,”
may be determined by the director of the department to be a potential SVP. An
SVP was defined at the time of the relevant proceedings to be “a person who has
been convicted of a sexually violent offense against two or more victims[3] 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, former subd. (a)(1), as amended Stats. 2000, ch. 643,

The SVP Act was amended by initiative on November 7, 2006, to redefine
an SVP as a person convicted of a sexually violent offense against “one or more
victims . . . .” (§ 6600, subd. (a)(1), as amended by initiative measure (Prop. 83,
§ 24), Nov. 7, 2006, italics added.)

§ 1.) When a potential SVP is identified, “the director shall, at least six months
prior to that individual’s scheduled date for release from prison, refer the person
for evaluation in accordance with this section.” (§ 6601(a)(1).) When this occurs,
the potential SVP is referred to two mental health evaluators, who must agree that
the individual has a diagnosed mental disorder and is likely to engage in acts of
sexual violence absent appropriate treatment in custody. (§ 6601, subds. (b), (d),
& (i).) A “ ‘[d]iagnosed mental disorder’ includes a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the person
to the commission of criminal sexual acts in a degree constituting the person a
menace to the health and safety of others.” (§ 6600, subd. (c).) Once two mental
health evaluators agree that the person has a diagnosed mental disorder, and once
the director has filed a petition, and the superior court has found probable cause,
the individual has the right to counsel and to a jury trial. (§§ 6602, 6603; see
People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902-903.)
Section 6601, subdivision (a)(2) (hereafter section 6601(a)(2)), provides
that “[a] petition may be filed under this section if the individual was in custody
pursuant to his or her determinate prison term, parole revocation term, or a hold
placed pursuant to section 6601.3, at the time the petition is filed. A petition shall
not be dismissed on the basis of a later judicial or administrative determination
that the individual’s custody was unlawful, if the unlawful custody was the result
of a good faith mistake of fact or law.” It is the meaning of the last sentence of
this subdivision that is at issue in the present case.
B. Statutory
As Smith points out, and as the Court of Appeal acknowledged, the above-
quoted subdivision refers to “unlawful custody” and not “unlawful conviction.”
Smith contends that section 6601(a)(2) refers to situations in which it later is
determined that the potential SVP’s custody was unlawful at the time the petition
was filed because he or she should have been released earlier, and does not refer to
situations like that in the present case, in which the conviction that is the basis of
the potential SVP’s custody at the time the petition is filed has been reversed.
Smith points to legislative findings contained in an uncodified portion of
the statute that adopted section 6601(a)(2), which states that “where a petition for
commitment of a sexually violent predator has been filed, it is not the intent of the
Legislature that a person be released based upon a subsequent judicial or
administrative finding that all or part of a determinate prison sentence, parole
revocation term, or a hold placed pursuant to section 6601.3, was unlawful.”
(Stats. 1999, ch. 136, § 3.) Smith argues that the Legislature’s use of the term
“sentence” is an indication that its focus was on the improper length of a sentence,
not on a conviction being found unlawful. He contends that the reversal of a
conviction is qualitatively different from a finding that a sentence was unlawful.
“[A]ll . . . of a . . . sentence” could arguably refer to situations in which an entire
sentence must be reversed and remanded because the sentencing court has
proceeded improperly. (See, e.g., People v. Sandoval (2007) 41 Cal.4th 825, 858.)
This argument is not unreasonable. But the People reasonably counter that
the Legislature’s reference to “all or part” of a prison sentence is sufficiently broad
to encompass reversal of a conviction, which would result in a determination that
“all” of the resulting prison sentence is unlawful.
There is somewhat stronger support for Smith’s argument in the language
of section 6604, which provides that if an individual subject to SVP proceedings is
found by the trier of fact not to be an SVP, “the court shall direct that the person
be released at the conclusion of the term for which he or she was initially
sentenced, or that the person be unconditionally released at the end of parole,
whichever is applicable.” The above indicates that the Legislature envisioned the
SVP Act to apply to someone serving his or her sentence to its conclusion, not
someone earlier released because of a reversed conviction. This provision does
not directly address the issue before us, however, and is far from conclusive on
that issue.4
In sum, the statutory language of section 6601(a)(2) and the uncodified
statutory language that accompanied its enactment is sufficiently broad to
encompass the present situation of a reversed conviction, but it is unclear whether
the Legislature meant to include unlawful conviction when it spoke of “unlawful
custody.” We turn then to the legislative history to clarify the Legislature’s
intention. (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340)
C. Legislative History
The legislative history indicates that section 6602(a)(2) was added in
response to two Court of Appeal cases. In Terhune v. Superior Court (Whitley)
(1998) 65 Cal.App.4th 864 (Whitley I), the court considered the validity of a
regulation that had been promulgated by the former Board of Prison Terms
allowing parole to be revoked for psychiatric treatment when the parolee “ ‘is
suffering from a mental disorder which substantially impairs the parolee’s ability
to maintain himself or herself in the community, or which makes the parolee a
danger to himself/herself or others, when necessary psychiatric treatment cannot
be obtained in the community.’ ” (Id. at p. 868.) In Whitley I, SVP proceedings

Smith also argues that allowing him to be subject to SVP commitment
would violate Penal Code section 1180. Section 1180 states in full: “The granting
of a new trial places the parties in the same position as if no trial had been had.
All the testimony must be produced anew, and the former verdict or finding cannot
be used or referred to, either in evidence or in argument, or be pleaded in bar of
any conviction which might have been had under the accusatory pleading.” The
People are correct, however, that the focus of that statute is on subsequent
criminal proceedings.

were initiated against a prisoner, but the trial court dismissed the commitment
petition for lack of probable cause. The board then used the above-quoted
regulation to revoke his parole for 12 months of psychiatric treatment, and during
this period, SVP proceedings were again initiated against him. (Whitley I, at
pp. 870-872.) The Court of Appeal in Whitley I held the regulation to be invalid,
concluding in essence that it exceeded the board’s authority, inasmuch as the
regulation was a means of requiring felons who have served their sentence to
remain in custody and receive involuntary treatment for reasons similar to those in
the SVP or the Mentally Disordered Offenders Act (MDO Act; Pen. Code, § 2960
et seq.), but without providing the rigorous due process protections that these
statutes require. (Whitley I, supra, 65 Cal.App.4th at pp. 878-880.)
In the followup case of People v. Superior Court (Whitley) (1999) 68
Cal.App.4th 1383 (Whitley II), the court was faced with the question of whether
Whitley should be released because his parole had been revoked erroneously or
remain subject to SVP proceedings. The prisoner argued that the SVP Act can be
applied only to those in custody for a conviction or parole revocation and he was
not lawfully in custody on the revocation.
The Court of Appeal rejected Whitley’s argument and ruled he remained
subject to SVP proceedings. The Whitley II court considered People v. Dias
(1985) 170 Cal.App.3d 756 (Dias), which held that although the Department of
Corrections had filed a late petition to extend a prisoner’s commitment under the
former Mentally Disordered Sex Offender Act (MDSO Act; former § 6300 et seq.)
due to an inadvertent miscalculation of the defendant’s commitment term, the
resulting commitment order was nonetheless valid. The Dias court concluded:
“The record before us contains no hint of negligent or intentional wrongdoing by
the persons charged with determining defendant’s release date. The error resulted
from a mistake of law on an issue where the relevant statute was not explicit and
there was no controlling judicial decision directly on point. In this situation, we
do not believe the error should be fatal to the extended commitment order. Given
the evidence showing defendant continues to present a substantial danger of bodily
harm to others, neither defendant nor the public would benefit by defendant’s
release at this time.” (Dias, supra, 170 Cal.App.3d at p. 763.)
Whitley II court, drawing on Dias, then concluded: “The Legislature’s
stated purpose for the [SVP] Act was to identify dangerous sexually violent
predators with diagnosable mental disorders while they are still incarcerated and to
commit and treat those individuals as long as their disorders persist. . . .
Consistent with that purpose, proceedings under the Act are initiated by the
evaluation of inmates before their release from prison. . . . [¶] . . . [¶] . . . As in
Dias, the record in the present case does not indicate negligent or intentional
wrongdoing by the Department of Corrections in revoking Whitley’s parole for
psychiatric conditions based on section 2616(a)(7). The department’s error in
revoking his parole on that basis resulted from its mistake of law concerning the
scope of its broad statutory authority to establish and enforce regulations
governing parole. Until we decided [Whitley I], there was no controlling judicial
decision directly on point . . . . Given these factors and in light of the serious
public safety purpose underlying the Act, we conclude that despite the
department’s legal error, the trial court had jurisdiction or power to consider the
People’s latest petition for Whitley’s commitment.” (Whitley II, supra, 68
Cal.App.4th at pp. 1389-1390.)5

Another Court of Appeal case decided around the same time as Whitley II
came to the same conclusion. (Garcetti v. Superior Court (Lyles) (1999) 68
Cal.App.4th 1105; see also People v. Wakefield (2000) 81 Cal.App.4th 893.)

When section 6601(a)(2) was added to the SVP Act in 1999, legislative
committee analyses made clear that it was intended to adopt a rule similar to the
holding in Whitley II. The Senate Committee on Public Safety’s analysis of the
amendment states that it was “a response to [Whitley I], in which the Court of
Appeal barred SVP proceedings against inmate Whitley. [¶] In [Whitley II], . . .
the court held that because [the Board of Prison Terms] and the [Department of
Corrections] did not unlawfully hold Whitley in custody through ‘negligent or
intentional wrongdoing,’ an SVP petition against Whitley could proceed.” (Sen.
Com. on Public Safety, Analysis of Sen. Bill No. 11 (1999-2000 Reg. Sess.) as
amended Mar. 23, 1999, pp. 3-4.) As the analysis further states: “The issue that
generated this bill arose in the context of a mistake of law about the application of
psychiatric parole revocations as a means of holding an alleged SVP in custody at
the time an SVP petition was filed. Such an error is arguably merely [a] technical
error, as an inmate who appears to be an SVP would likely be subject to very rapid
proper revocation of parole upon release from custody. Similar problems could
arise if a court decision rules that good-faith sentencing credit calculations were
made in error. [¶] The Attorney General, the co-sponsor of the bill, notes that this
bill should also address analogous mistakes of fact. For example, a simple
mistake in arithmetic in the calculation of credits could result in an untimely filing
of an SVP petition. The Attorney General argues that such a good-faith error
should not result in the release of [an] SVP who presents a substantial danger to
the public.” (Id. at pp. 5-6.)
This legislative purpose is reiterated in the Assembly appropriations
committee’s analysis: “According to the author and the sponsor, the Attorney
General, this bill ensures that petitions to commit dangerous sex offenders to
mental health facilities after their terms have expired cannot be dismissed simply
because a judge found a prisoner’s term was mistakenly extended. Correctional
officials have had to release potential SVPs after an appellate court recently ruled
that prisons could not detain mentally ill prisoners by revoking their parole prior to
release.” (Assem. Com. on Appropriations, Analysis of Sen. Bill No. 11 (1999-
2000 Reg. Sess.) as amended Apr. 6, 1999, pp. 1-2.)
bill analysis stated: “The bill responds to an
ambiguity created by an appellate court decision and makes it clear that sexually
violent predators are not to be unleashed on society simply because ‘the constable
has blundered.’ ” (Assem. Com. on Public Safety, Republican Analysis of Sen.
Bill No. 11 (1999-2000 Reg. Sess.) as amended Apr. 6, 1999, p. 1.)
Smith argues that the above legislative history strongly suggests that
section 6601(a)(2) was intended to prevent errors that led to erroneous extensions
of custody, including mistaken parole revocation. A reversed conviction, on the
other hand, does not involve a mistaken extension of custody but rather an
invalidation of the very judicial determination that had originally made the
custody lawful. It rectifies prejudicial error that amounts to a miscarriage of
justice. (People v. Garza (2005) 35 Cal.4th 866, 881; Cal. Const., art. VI, § 13.)
He contends that there is no indication from the legislative history that section
6601(a)(2) was intended to apply in these circumstances. Support for this position
may be found in the Assembly Republican bill analysis quoted immediately above.
If the purpose of the amendment was to make sure that potential SVP’s do not go
free simply because “the constable has blundered,” then it would not apply to
Smith, who would not be escaping SVP proceedings because of governmental
error, but rather would be subject to these proceedings due to such error.
On the other hand, the People argue that Whitely II, which section
6601(a)(2) was intended to incorporate, goes beyond mere extensions of sentences
and includes erroneous parole revocations, which are similar to an erroneous
convictions. The People also point to the declared purpose behind the original
SVP Act: “The Legislature finds and declares that a small but extremely
dangerous group of sexually violent predators that have diagnosable mental
disorders can be identified while they are incarcerated. These persons 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. The Legislature further
finds and declares that it is in the interest of society to identify these individuals
prior to the expiration of their terms of imprisonment.” (Stats. 1995, ch. 763, § 1,
p. 5921.) Given the broad concern for public safety central to the SVP Act, the
People argue that section 6601(a)(2)’s broad language must be interpreted to
extend to those who have been screened as SVP’s while in prison, even when their
present conviction is due to good-faith error.
We conclude that both sides advance reasonable interpretations of the
statute. It appears to be the case that on the one hand, the Legislature did not
expressly consider the situation of the person subject to SVP proceedings whose
conviction is reversed, and that on the other hand, the Legislature intended for the
SVP Act to sweep broadly and to conceivably extend to such persons. We need
not decide, however, which statutory interpretation is more reasonable based on
the statutory language and legislative history alone. As explained below,
constitutional concerns favor Smith’s construction of the statute.
C. The Equal Protection Clause and Section 6601(a)(2)
Smith argues that section 6601(a)(2), if construed as the People argues it
should be, would violate the equal protection clause of the Fourteenth Amendment
to the United States Constitution and its California equivalent. To determine the
soundness of that position, we first review some basic principles:
“In resolving equal protection issues, the United States Supreme Court has
used three levels of analysis. Distinctions in statutes that involve suspect
classifications or touch upon fundamental interests are subject to strict scrutiny,
and can be sustained only if they are necessary to achieve a compelling state
interest. Classifications based on gender are subject to an intermediate level of
review. But most legislation is tested only to determine if the challenged
classification bears a rational relationship to a legitimate state purpose.” (People
v. Hofsheier (2006) 37 Cal.4th 1185, 1200.)
Under California law, “ ‘[s]trict scrutiny is the appropriate standard against
which to measure [equal protection] claims of disparate treatment in civil
commitment. [Citations.]’ ” (People v. Hubbart (2001) 88 Cal.App.4th 1202,
1217.) This statement can be traced back to In re Moye (1978) 22 Cal.3d 457, a
case involving a civil commitment under the MDSO Act, in which this court
stated: “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.” (In re
Moye, at pp. 465-466; see also Conservatorship of Hofferber (1980) 28 Cal.3d
161, 171.)
The United States Supreme Court and this court have placed significant
constitutional limitations, based on the equal protection clause, on the ability of
the government to distinguish between various types of civil committees. In
Jackson v. Indiana (1972) 406 U.S. 715 (Jackson), Jackson was charged with two
robberies, but was found to be incompetent to stand trial. Under Indiana law at the
time, a criminal defendant could be civilly committed if found incompetent, and
could be held in such commitment indefinitely. On the other hand, under
Indiana’s general civil commitment statutes, a mentally disordered person could
be held in civil commitment only if he was a danger to others or in need of
custodial care and treatment. The United States Supreme Court concluded that
this double standard violated the equal protection clause. “[W]e hold that by
subjecting Jackson to a more lenient commitment standard and to a more stringent
standard of release than those generally applicable to all others not charged with
offenses, and by thus condemning him in effect to permanent institutionalization
without the showing required for commitment or the opportunity for release
afforded by [Indiana’s general civil commitment statutes], Indiana deprived
petitioner of equal protection of the laws under the Fourteenth Amendment.” (406
U.S. at p. 730.)
In arriving at this conclusion, the court relied in part on Baxstrom v. Herold
(1966) 383 U.S. 107, in which the court had held that it was a violation of equal
protection to deprive a state prisoner of a jury trial and a finding of dangerousness
when the state sought to civilly commit him at the end of his prison term, given
that these protections were available to other persons civilly committed. As the
Jackson court put it: “Baxstrom held that the State cannot withhold from a few the
procedural protections or the substantive requirements for [civil] commitment that
are available to all others.” (Jackson, supra, 406 U.S. at p. 727.) “Rejecting the
State’s argument that Baxstrom’s conviction and sentence constituted adequate
justification for the difference in procedures, the Court said that ‘there is no
conceivable basis for distinguishing the commitment of a person who is nearing
the end of a penal term from all other civil commitments.’ ” (Jackson, supra, 406
U.S. at p. 724.) The Jackson court then concluded that “[i]f criminal conviction
and imposition of sentence are insufficient to justify less procedural and
substantive protection against indefinite commitment than that generally available
to all others, the mere filing of criminal charges surely cannot suffice.” (Ibid.)
We applied and clarified Jackson’s holding in Conservatorship of
Hofferber, supra, 28 Cal.3d 161 (Hofferber). As that opinion explained,
California had a civil commitment statute for incompetent criminal defendants
similar to the Indiana statute invalidated in Jackson. This court in In re Davis
(1973) 8 Cal.3d 798 held that such individuals found to be incompetent to stand
trial could be civilly committed only for a reasonable time for purposes of
evaluation and recovery, after which they must either be released or subject to
commitment as gravely disabled under California’s general civil commitment
statute, the Lanterman-Petris-Short Act (LPS Act). (§ 5000 et seq.) The definition
of “gravely disabled” up to that point had been “a condition in which a person, as
a result of a mental disorder, is unable to provide for his or her basic personal
needs for food, clothing, or shelter.” (§ 5008, former subd. (h)(1), as amended by
Stats. 1970, ch. 516, § 5, p. 1002; see now § 5008, subd. (h)(1)(A).) In response,
the Legislature amended the definition of “gravely disabled,” to permit a person to
be found “gravely disabled” on the additional grounds that he (1) is charged by
indictment or information with a felony involving death, great bodily harm, or a
serious threat to the physical well-being of another, and (2) is incompetent to assist
in his defense because of a mental disorder. (§ 5008, former subd. (h)(2), as
amended by Stats. 1974, ch. 1511, § 12, p. 3321; see Hofferber, supra, 28 Cal.3d
at p. 171.) The petitioner in Hofferber contended that the new statutory scheme
was a “transparent and unsuccessful evasion of Jackson and Davis.” (Hofferber,
at p. 170.) Although agreeing in part with petitioner, the court opined that “we do
not regard those cases as holding that the fact of criminal incompetency may never
be a basis for involuntary confinement prescriptions.” (Id. at p. 171.)
We began the analysis in Hofferber with the observation that “[t]he state
has compelling interests in public safety and in humane treatment of the mentally
disturbed. [Citation.] 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. [¶] California laws have long
followed that premise. For certain purposes they properly classify, separately,
those mentally ill persons against whom a judicial determination of criminal
conduct has been made since such persons, at least initially, have demonstrated
particular danger. [Citations.]” (Hofferber, supra, 28 Cal.3d at pp. 171-172,
italics added, fn. omitted.)
We continued by surveying the various ways in which involuntary civil
commitments may occur in this state: “The California scheme permits long-term,
renewable commitments of persons found not guilty by reason of insanity (Pen.
Code, § 1026 et seq.), mentally disordered sex offenders (MDSO’s) (§ 6300 et
seq.), and those committed to the Youth Authority (§ 1800 et seq.; People v. Smith
(1971) 5 Cal.3d 313, 317) — in each case on proof that they remain dangerously
disturbed. On the other hand, violent persons not adjudicated under the criminal
justice system are subject only to the short-term LPS Act procedure for
‘imminently dangerous’ persons. They, unlike those criminally committed, may
not be confined indefinitely on psychiatric opinion alone. (§§ 5300, 5304.)”
(Hofferber, supra, 28 Cal.3d at p. 172.)
This court explained the probable sources of such disparate treatment:
“Those distinctions have two apparent bases. First, the Legislature apparently
concluded that short-term civil confinement is preferable for most violent
incidents caused by mental disturbance and that only seriously dangerous persons
should be subject to the trauma and stigma of longer-term confinement.
[Citation.] On the other hand, it was considered that acts serious enough for
criminal treatment justify a continuing special interest in a person’s nonpenal
confinement for purposes of public safety. [Citations.] Weighing the compelling
interest in avoiding confinement whenever possible against the equal need to
protect society from the seriously dangerous mentally ill, the Legislature has
naturally concluded that statutory distinctions must be made on the basis of degree
of danger presented.” (Hofferber, supra, 28 Cal.3d at pp. 172-173, italics added.)
We further clarified the high court’s language in Jackson that “ [i]f criminal
conviction and imposition of sentence are insufficient to justify less procedural
and substantive protection against indefinite commitment than that generally
available to all others, the mere filing of criminal charges surely cannot suffice.”
(Jackson, supra, 406 U.S. at p. 724.) We concluded that “[r]ead in context,
Jackson stands only for the proposition that consideration of prior criminal
conduct as a basis for distinguishing among dangerous persons must be
reasonable.” (Hofferber, supra, 28 Cal.3d at p. 173, fn. 10.)
Applying these principles, we reasoned that “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 acts, the incompetent defendants already have seriously
imperiled public safety and thus are particularly dangerous. Yet because of
permanent incompetence they cannot be evaluated and confined for continuing
dangerousness under the criminal processes usually applied to serious violent
conduct.” (Hofferber, supra, 28 Cal.3d at pp. 173-174.)
The Hofferber court nonetheless found section 5008, former subdivision
(h)(2), constitutionally inadequate under equal protection because it did not
impose a requirement of a finding beyond a reasonable doubt, after a hearing, that
the person represented a current danger to others as a result of a mental disorder,
as similar criminal insanity commitment statutes required, and implied such a
requirement in order to render the statute constitutional. (Hofferber, supra, 28
Cal.3d at pp. 176-178.)
The basic principles of Jackson and Hofferber may be summarized as
follows: (1) generally speaking, no individual or group when being civilly
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 of 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.
With these principles in mind, we consider whether Smith in the present
case is being treated differently from those who are subject to our state’s general
civil commitment statute, the LPS Act, and, if so, whether that differential
treatment is reasonable. We begin this inquiry with a brief review of the LPS Act.
“The LPS Act ‘ “limits involuntary commitment to successive periods of
increasingly longer duration, beginning with a 72-hour detention for evaluation
and treatment ([Welf. & Inst. Code,] § 5150), which may be extended by
certification for 14 days of intensive treatment ([Welf. & Inst. Code,] § 5250); that
initial period may be extended for an additional 14 days if the person detained is
suicidal. ([Welf. & Inst. Code,] § 5260.) . . . [T]he 14-day certification may be
extended for an additional 30-day period for further intensive treatment. ([Welf. &
Inst. Code,] § 5270.15.) Persons found to be imminently dangerous may be
involuntarily committed for up to 180 days beyond the 14-day period. ([Welf. &
Inst. Code,] § 5300.) After the initial 72-hour detention, the 14-day and 30-day
commitments each require a certification hearing before an appointed hearing
officer to determine probable cause for confinement unless the detainee has filed a
petition for the writ of habeas corpus. ([Welf. & Inst. Code,] §§ 5256, 5256.1,
5262, 5270.15, 5275, 5276.) A 180-day commitment requires a superior court
order. ([Welf. & Inst. Code,] § 5301.)” ’ ” (People v. Allen (2007) 42 Cal.4th 91,
The LPS Act provides that longer-term civil commitment will be authorized
only after a rigorous showing. In order to be subject to the initial 72-hour, 14-day,
and 30-day commitments, an individual must be found to be either a danger to self
or others or gravely disabled, initially according to the observations of a peace
officer or other designated professional (§ 5150) and later by the observations of
the professional staff of the agency or treating facility (§§ 5260, 5270.15). In
order to receive the 180-day commitment under the LPS Act, as one court has
summarized it, a person, “ ‘as a result of mental disorder or mental defect, [must]
present[] a demonstrated danger of inflicting substantial physical harm upon
others’; and must have attempted, inflicted, or made a serious threat of substantial
physical harm upon another after having been taken into custody for evaluation
and treatment, or must have attempted or inflicted physical harm upon another and
that act resulted in his being taken into custody, or must have expressed a serious
threat of substantial physical harm upon another within seven days of being taken
into custody and that threat at least in part resulted in his being taken into custody.
(§§ 5300, subds. (a)-(c), 5304, subd. (a)(1), (2), (3).)” (People v. Buffington
(1999) 74 Cal.App.4th 1149, 1161-1162, italics and underscoring omitted.) In
order to be subject to renewable one-year conservatorships under the LPS Act, one
must be found to be gravely disabled either by being manifestly unable to take
care of oneself or being in custody on a criminal charge and found incompetent to
stand trial and having a mental disorder causing one to be dangerous to others.
(§§ 5350, 5008, subd. (h), 5361; see People v. Karriker (2007) 149 Cal.App.4th
763, 774-775.)
As discussed above, under the SVP Act those currently in prison with the
requisite convictions for sexually violent offenses can be subject to continued civil
commitment solely on the basis of findings that an individual has a mental
disorder that makes it likely he or she will engage in sexually violent criminal
behavior. (§§ 6601-6604.) On the other hand, those not in prison, including those
who also have prior convictions for sexually violent offenses, can be subject to
long-term civil commitment only when, as explained, they are determined to be
gravely disabled or to have a mental disorder and to be a danger to self and others
as shown by recent acts. Stated another way, a person convicted of prior sexual
offenses who is currently not in prison, and who has not done anything to manifest
grave disability or recent dangerousness based on mental disorder, may not be
civilly committed in California.
We have no doubt that such a distinction between those who are and are not
in prison custody, in general, passes muster under the equal protection clause. As
discussed, the Legislature may separately classify “mentally ill persons against
whom a judicial determination of criminal conduct has been made since such
persons, at least initially, have demonstrated particular danger.” (Hofferber,
supra, 28 Cal.3d at p. 172.) Although Hofferber’s pronouncement was made in
the context of violent criminal conduct, the Legislature could legitimately
conclude in the context of the SVP Act that any felonious criminal conduct would
warrant a finding of greater danger and a separate classification. 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. Such a conclusion would be
an extension of the basic principle underlying our parole system that those newly
released from prison, who have not yet proven their ability to be law-abiding
citizens, deserve particular scrutiny. (See Cohen, The Law of Parole & Probation
(2d ed. 2000) § 1.20, p. 1-29.)
But the justification for differential treatment is less clear when, as here, the
conviction that was the basis of prison custody has been reversed. In terms of
potential dangerousness, a person whose felony conviction has been reversed is in
the same position as someone who was charged with, but not convicted of, a
felony offense, yet it is undisputed that the latter could not be subject to SVP
proceedings. Nor does it appear that those whose convictions were reversed
relatively early in their prison term, before SVP proceedings were commenced,
could be subject to such proceeding — section 6601(a)(2) by its plain terms
applies to prevent dismissal of petitions already filed, not the initiation of new
It is true that Smith in the present case was the subject of a preliminary
determination by mental health professionals that he may be an SVP. But that
distinction does not appear to be decisive. A person who has had the same
criminal history as Smith, and who, for whatever reason, becomes civilly rather
than criminally committed, will be subject to intensive psychiatric evaluation to
determine whether as a result of a mental disorder he is a danger to others. (See
§§ 5213, subd. (a), 5250, subd. (a), 5300.) During this evaluation, mental health
professionals may well conclude that the individual has a diagnosis substantially
similar to Smith’s in the present case, or they may make other predictions about
his future dangerousness. But as discussed above, under the LPS Act, those
diagnoses and predictions alone cannot be the basis of an extended civil
commitment. One could be subject to such commitment only on the basis of a
finding of grave disability or recent dangerousness, as discussed above. It is only
Smith’s status as a prisoner that makes him eligible for continued civil
commitment based on past criminal history and diagnoses and predictions of
future dangerousness alone. That differential treatment is justifiable in equal
protection terms if Smith’s most recent conviction were valid. It is not clear such
treatment is justifiable when that conviction is reversed. (See Hofferber, supra, 28
Cal.3d at p. 172.)
Our common practice is to “construe[] statutes, when reasonable, to avoid
difficult constitutional questions.” (Le Francois v. Goel (2005) 35 Cal.4th 1094,
1105.) Consistent with that practice, we construe section 6602(a)(2) not to apply
to someone in Smith’s position, whose conviction that was the basis of his prison
custody at the time SVP proceedings were initiated has been reversed, and who
has not been retried and reconvicted.
Such a construction would still allow the state to proceed against those
whose initial prison custody was valid, but who might evade SVP commitment
due to erroneous parole revocations or extensions of sentence, the groups of
prisoners against whom section 6601(a)(2) was targeted. (See, e.g., Whitley II,
supra, 68 Cal.App.4th 1383; Garcetti v. Superior Court (Lyles), supra, 68
Cal.App.4th 1105; People v. Wakefield, supra, 81 Cal.App.4th 893.) Subjecting
these classes of prisoners to SVP proceedings does not raise the equal protection
problems discussed in the present case. It is certainly justifiable in equal
protection terms, for the reasons discussed above, to treat convicted prisoners
differently for purposes of civil commitment from the general population, even
when those prisoners stand to evade the statutory time limits for initiating SVP
proceedings due to good-faith factual or legal error. Moreover, a prisoner on
parole remains in constructive custody (Pen. Code, § 3056; see 3 Witkin &
Epstein, Cal. Criminal Law (3d ed. 2000) Punishment, § 631, pp. 828-829), and is
not similarly situated, for purposes of the equal protection issue posed by this case,
to a prisoner whose conviction that was the basis of his or her custody is reversed
due to prejudicial error. Our present holding would affect only those in Smith’s
unusual circumstances, i.e., a prisoner who has obtained an appellate reversal of
his conviction late in his prison term after an SVP petition has been filed, and who
has not been retried and reconvicted.
As the above implies, our holding means that if the People seek to continue
SVP proceedings against someone whose present conviction has been reversed, it
must retry and reconvict him. We regret that this requirement imposes an
additional burden on the People, particularly when the person has already served
his prison sentence. We interpret the statutory scheme to impose this burden due
to the constitutional concerns articulated above.6
We emphasize that we agree with the People that the state has a compelling
interest in timely initiating SVP proceedings for prisoners who appear to be
eligible for SVP commitment. Nothing we say in the present opinion should be

Should this situation arise again, we make clear that once an SVP petition
has been properly filed, a reversal of the conviction that is the basis of prison
custody is not by itself grounds for dismissing the petition. If the People timely
elect to retry, then proceedings may be stayed pending the outcome of the retrial,
but nothing in the statute or the equal protection clause requires dismissal of the
petition. Only when the People do not timely elect to retry, or when the person is
not convicted on retrial, is the petition subject to dismissal. If the person is
reconvicted on retrial, then SVP proceedings may be reinstated.

interpreted as requiring the responsible authorities to wait until a defendant has
exhausted his appeals before initiating SVP proceedings against him.7 Nor do we
foreclose the possibility that the Legislature could amend the SVP Act so that it
would constitutionally apply to someone in Smith’s position. We hold only that,
in light of the constitutional concerns discussed above, we do not construe the
statute as currently written to so apply.
The judgment of the Court of Appeal is reversed and the cause is remanded
with directions to grant Smith’s petition for a writ of habeas corpus.

Moreover, it is possible a person who is not eligible for SVP commitment
because of a reversed conviction may still qualify for other forms of civil
commitment. (See People v. Allen, supra, 42 Cal.4th 91, 105-108 [individual no
longer eligible for commitment under MDO Act may be committed if eligible
under the LPS Act].)

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Smith

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 141 Cal.App.4th 217
Rehearing Granted


Opinion No.

Date Filed: March 24, 2008


County: Los Angeles
Judge: Richard E. Rico


Attorneys for Appellant:

David Woodrow Smith, in pro. per., and J. Courtney Shevelson, under appointment by the Supreme Court,
for Petitioner David Woodrow Smith.


Attorneys for Respondent:

Steve Cooley, District Attorney, Lael Rubin, Brentford J. Ferreira, Phyllis C. Asayama and Rebecca Marie
Madrid, Deputy District Attorneys, for Respondent State of California.

Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Courtney Shevelson
PMB 187
316 Mid Valley Center
Carmel, CA 93923-8516
(831) 625-6581

Brentford J. Ferreira
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5917

Petition for review after the Court of Appeal denied a petition for writ of habeas corpus. This case presents the following issue: Can a proceeding to commit a defendant as a sexually violent predator be maintained if the conviction on which the defendant was serving a prison sentence at the time that the sexually violent predator proceedings were initiated has been subsequently reversed on appeal?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 03/24/200842 Cal.4th 1251 original opinionS145959Review - Habeas (criminal)closed; remittitur issued

1Smith, David Woodrow (Petitioner)
P.O. Box 5003
Coalinga, CA 93210

Represented by J. Courtney Shevelson
Attorney at Law
316 Mid Valley Center, PMB 187
Carmel, CA

2The People (Respondent)
Represented by Brentford J. Ferreira
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

Mar 24 2008Opinion: Reversed

Aug 21 2006Petition for review filed
  David Woodrow Smith, petitioner J. Courtney Shevelson, counsel
Aug 21 2006Record requested
Aug 21 2006Received Court of Appeal record
Oct 16 2006Time extended to grant or deny review
  to Nov.17, 2006.
Oct 25 2006Petition for review granted (criminal case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Nov 13 2006Received:
  letter dated November 6, 2006 from petitioner
Dec 13 2006Counsel appointment order filed
  Upon request of appellant for appointment of counsel, J. Courtney Shevelson is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be seved and filed on or before thirty (30) days from the date of this order.
Jan 10 2007Request for extension of time filed
  Petitioner, David Woodrow Smith, is asking to Jan. 26, 2007 to fle the opening brief on the merits. by counsel, J. Courtney Shevelson.
Jan 16 2007Extension of time granted
  to January 26, 2007 to file petitioners opening brief on the merits.
Jan 29 2007Opening brief on the merits filed
  Petitioner, David Woodrow Smith by counsel, J. Courtney Shevelson.
Jan 29 2007Request for judicial notice filed (granted case)
  Petitioner, David Woodrow Smith by counsel, J. Courtney Shevelson.
Jan 31 2007Note: Mail returned and re-sent
Feb 26 2007Answer brief on the merits filed
  The People, respondent Rebecca Marie Madrid, Deputy District Attorney
Mar 1 2007Compensation awarded counsel
  Atty Shevelson
Mar 20 2007Reply brief filed (case fully briefed)
  David Wood Smith, petitioner by J. Courtney Shevelson, counsel crc.8.25.(b)
Mar 28 2007Received:
  Motion for Calendar Preference Petitioner, David Woodrow Smith by counsel, J. Courtney Shevelson.
May 16 2007Motion denied
  Petitioner David Woodrow Smith's March 28, 2007 motion for calendar preference is denied without prejudice to the filing of another calendar preference motion with adequate documentation.
Oct 2 2007Received:
  Motion for Calendar Preference Petitioner, David Woodrow Smith
Oct 10 2007Supplemental briefing ordered
  The parties are requested to discuss the significance to petitioner's equal protection claim, if any, of Jackson v. Indiana (1972) 406 U.S. 715, Conservatorship of Hofferber (1980) 28 Cal.3d 161, and any related case deemed appropriate. The parties are to serve and file simultaneous letter briefs by October 26, 2007, and may serve and file reply briefs by November 2, 2007. All such briefs should be filed in the San Francisco office of this court. This briefing schedule is established to facilitate early calendaring of this matte for oral argument.
Oct 26 2007Filed:
  David Woodrow, petitioner by J. Courtney Shevelson, counsel
Oct 26 2007Filed:
  The People, respondent by Rebecca Madrid, deputy district attorney faxed copy.....originals to be mailed
Oct 29 2007Received:
  Original and copies of the supplemental letter brief filed on behalf of the People by Deputy District Attorney REbecca Marie Madrid.
Nov 2 2007Letter brief filed
  (REPLY) by Los Angeles County District Attorney's Office to petitioner's letter brief. by Rebecca M. Madrid, counsel
Nov 2 2007Letter brief filed
  (REPLY) by petitioner David Woodrow to respondent's letter brief. by J. Courtney Shevelson, counsel
Nov 5 2007Received:
  People's Original Reply filed by Los Angeles County District Attorney's office that was faxed11-2-07.
Nov 5 2007Received:
  Petitioner's Original Reply faxed 11-2-07, by counsel, J. Courtney Shevelson.
Dec 4 2007Case ordered on calendar
  Wednesday, January 9, 2008, at 9:00 a.m., in San Francisco
Jan 9 2008Cause argued and submitted
Mar 21 2008Notice of forthcoming opinion posted
Mar 24 2008Opinion filed: Judgment reversed
  and the cause is remanded with directions to grant Smith's petition for a writ of habeas corpus. Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Corrigan, JJ.
Apr 24 2008Remittitur issued (criminal case)
Apr 25 2008Returned record
  2 doghouses. Shipped to Tommie W. at L.A. office on Thursday 5/1/08 via UPS Nest Day Air.
May 1 2008Returned record
May 1 2008Received:
  receipt for remittitur CA 2/7.
May 14 2008Compensation awarded counsel
  Atty Shevelson

Jan 29 2007Opening brief on the merits filed
Feb 26 2007Answer brief on the merits filed
Mar 20 2007Reply brief filed (case fully briefed)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website