In re BRIAN J.,

Filed 4/24/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Story Continued from Part II ..

2. Analysis

[A] prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury. (People v. Price (1991) 1 Cal.4th 324, 447, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) Misconduct is judged by an objective standard, and the defendant is not required to show bad faith to obtain relief for misconduct. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

Here, the trial court properly found that the prosecutor committed misconduct in his argument to the jury. The People impliedly concede that the prosecutors argument constituted misconduct, a concession with which we must agree -- the prosecutor implied the existence of facts not in evidence and interjected his personal views into the argument. (See People v. Kirkes (1952) 39 Cal.2d 719, 724 [improper to state facts not in evidence]; People v. Bain (1971) 5 Cal.3d 839, 848 [improper to offer personal opinion].)

The People argue, however, that the trial courts admonition was sufficient to cure any prejudice. In determining the efficacy of an admonition in dispelling prejudice from improper argument, we must weigh the cumulative effect of the improper statements that pervaded the prosecutors closing argument. (People v. Herring (1993) 20 Cal.App.4th 1066, 1075 (Herring) [stating that a timely admonition would likely have cured harm from the prosecutors improper statements maligning the defendants character but that prejudicial error occurred when the prosecutor further implied that defense counsel had suborned perjury and impliedly denigrated that presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt].)

In People v. Price, supra, 1 Cal.4th 324, the defendant complained on appeal that the prosecutor had vouched for the credibility of a prosecution witness by making the following argument: God what a great witness. Thats my opinion. If you dont feel that way, you think that [the witness] was a lying whatever, thats fine because you are now the judges. (Id. at p. 461.) The court stated that, assuming the remark was improper, an admonition that the prosecutors opinion was irrelevant would have avoided any possible prejudice. (Id. at p. 462.) Similarly, in People v. Bell (1989) 49 Cal.3d 502, the prosecutor made factually inaccurate and improper remarks during argument that were neither based on the evidence nor related to a matter of common knowledge. (Id. at p. 539.) The court held, however, that [t]he impropriety was one that could have been offset by an instruction or admonition by the court, and the defendant therefore forfeited any claim of error by failing to object. (Ibid.)

Here, the trial court tailored its admonition to the prosecutors specific remarks. The trial court first noted that there had been no evidence that defendants victim had molested anyone. The trial court then emphasized that the jurys duty was to determine whether the petition was true beyond a reasonable doubt, not to insure the protection of society. We conclude the trial courts admonition to the jury was sufficient to cure any prejudice from the prosecutors misconduct.

C. Equal Protection

Defendant contends his commitment under the EDA deprived him of equal protection because he was treated differently from similarly situated adult prisoners who are subject to civil commitments under the SVPA and the MDO laws. Specifically, he contends that under the EDA, he received lesser procedural protections, he was subject to broader commitment criteria, his conditions of confinement were more punitive, and there was no requirement that his mental disorder be treated.

1. Overview of EDA

The EDA allows the state to extend the detention of an adult ward beyond the date the CYAs jurisdiction would normally expire when the ward is determined, beyond a reasonable doubt, to be physically dangerous to the public because of his or her mental or physical deficiency, disorder or abnormality which causes the person to have serious difficulty controlling his or her dangerous behavior. ( 1801.5.) To initiate a commitment under the EDA, the CYA must request, and the prosecuting attorney must file, a petition requesting that the wards detention be extended. ( 1800.) The ward is entitled to notice of the petition and a probable cause hearing, followed by a jury trial. ( 1801, 1801.5.) The detention is for up to two years. ( 1802.) Within that two-year period, unless the person has been discharged under the provisions of section 1766, a new application for continued detention may be filed if deemed necessary. ( 1802.) The EDA includes no requirement that the ward be housed separately from other wards. At any time during the detention, the Department of the Youth Authority may transfer any ward over 21 years of age to state prison to protect other persons in the custody of the department. ( 1802.)

2. Standard of Review

We review the constitutionality of a statute de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801.) Although we do not defer to the trial courts interpretation of the statute, we give some deference to the Legislature in that we must presume the statute is valid unless its unconstitutionality clearly, positively, and unmistakably appears. (People v. Falsetta (1999) 21 Cal.4th 903, 913.) With respect to the EDA, the Supreme Court in Howard N. stated, [t]he Legislature has made it clear over the history of the extended detention scheme that it is committed to making the scheme constitutional. (Howard N., supra, 35 Cal.4th at p. 133.) And, if feasible within bounds set by their words and purpose, statutes should be construed to preserve their constitutionality. [Citations.] (Id. at p. 132.)

3. Framework of Equal Protection Analysis

Both the federal and California Constitutions provide that no person shall be deprived of equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I,  7, subd. (a).) To succeed on a claim of denial of equal protection, a person must first show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 439; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley).)

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. [Citation.] (Cooley, supra, 29 Cal.4th at p. 253.) If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.] (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)

When a showing is made that two similarly situated groups are treated disparately, the court must then determine whether the government has a sufficient reason for distinguishing between them. 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.] (Cooley, supra, 29 Cal.4th at p. 253.)

In resolving equal protection issues, the United States Supreme Courthas 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. [Citations.] (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200.)

Defendant contends that EDA commitments trigger strict scrutiny because they involve a restraint on personal liberty. (See People v. Olivas (1976) 17 Cal.3d 236, 250-251 [holding that strict scrutiny applied to an equal protection challenge to a statute that allowed a defendant who had been convicted in an adult criminal prosecution to be committed to the CYA for a longer term than he would have received if sentenced to prison as an adult]; see also People v. Green (2000) 79 Cal.App.4th 921, 924 [Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217, 1231.)

In addressing an earlier version of the EDA, our Supreme Court stated that although the procedures leading to the commitment of various classes of people for treatment or to protect society from them need not be identical in all respects, none may deny to one such class fundamental rights or privileges accorded to another unless a rational basis for the distinction exists. Thus, we must evaluate the procedures adopted to implement sections 1800-1803 in light of other statutory provisions governing involuntary commitment. [Citation.] (In re Gary W. (1971) 5 Cal.3d 296, 304, superseded by statute on other grounds in People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988, 990; see also People v. Lopez (2006) 137 Cal.App.4th 1099, 1109.) Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of power. [Citation.] (People v. Hubbart, supra, 88 Cal.App.4th at p. 1217.)

4. Evaluation Procedures

Defendant contends that the EDA deprived him of equal protection because SVPs and MDOs benefit from more stringent screening procedures than those that are applied to wards committed under the EDA. The SVPA requires a standardized screening process with the recommendation of at least two psychiatrists or psychologists appointed by the Director of Mental Health, and if those examiners disagree, two independent professionals must be appointed. ( 6601, subds. (d)-(h).) Similarly, the MDO statutes require evaluation by two independent psychologists or psychiatrists. (Pen. Code,  2966, subd. (a), 2978.) In contrast, the EDA requires an evaluation by one mental health professional designated by the CYA Director only if the Department of the Youth Authority has failed to act on a request for commitment action by the Youth Authority Board. ( 1800.5.)

The SVPA, however, does not require that persons receive treatment prior to the commencement of long-term commitment. (See People v. Hubbart, supra, 88 Cal.App.4th at p. 1221.) And MDOs must only have been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoners parole or release. (Pen. Code, 2962, subd. (c).) In contrast, as discussed at more length below, the CYA is required to provide continuing treatment for wards throughout their original commitment and during any extension of the commitment. Thus, an extensive record of the wards behavior, treatment, and response to treatment has been created before the EDA proceedings commence -- in the present case, various witnesses noted that defendants paper record of his treatment while at CYA was 14 inches high. The Youth Authority Board must include a copy of the wards file and the documentation upon which the Youth Authority Board made its decision when requesting extended commitment. ( 1800.5.) This record serves as an additional means of minimizing error in the probable cause determination. Thus, we conclude that with respect to the procedures by which extended commitments are initiated, wards of the CYA are not similarly situated to SVPs or MDOs.

Moreover, on appeal, any error relating to probable cause findings is subject to harmless error review. In People v. Scott (2002) 100 Cal.App.4th 1060, the defendant, who was committed as an SVP, contended the evidence was insufficient to support extending his commitment because only one expert testified for the People that he was an SVP, although the SVPA requires two concurring expert opinions before the commencement of the petition process. ( 6601, subds. (c), (d).) The court held that the SVPA requirement for two prepetition evaluations did not affect the disposition of the merits, but was rather a collateral procedural condition to ensure that SVP proceedings were initiated only when there was a substantial basis for doing so. After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. [Citation.] [Citation.] (People v. Scott, supra, 100 Cal.App.4th at p. 1063, quoting People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130; People v. Ward (2002) 97 Cal.App.4th 631, 635.)

In In re Wright (2005) 128 Cal.App.4th 663, the court stated, Irregularities in the preliminary hearing under the [SVPA] are not jurisdictional in the fundamental sense and are . . . subject to harmless error review. [Citation.] Thus, reversal is not necessary unless the individual can show that he or she was denied a fair trial or had otherwise suffered prejudice. [Citation.] (Id. at p. 673.) The court found no prejudice to the defendant when he had had a fair trial at which he had been represented by counsel, had presented his own expert witness, and had cross-examined the Peoples witnesses. (Ibid.) The court explained, The only possible prejudice [the defendant] could have suffered was in the fact that the petition actually proceeded to trial; however, our high court concluded that the erroneous denial of a motion to dismiss an information under Penal Code section 995 will not be reversed on appeal in the absence of a showing that the defendant was deprived of a fair trial, or otherwise prejudiced in the ability to mount a defense. [Citation.] The same principle applies in other contexts involving allegedly improper rulings in criminal cases, even where it is claimed there had been a violation of constitutionally protected rights. [Citations.] [Citation.] Thus, the fact that [the defendant] was compelled to participate in an otherwise fair trial does not demonstrate prejudice. [Citation.] (Id. at pp. 673-674.)

Here, likewise, defendant had a fair trial, and any error in the initiation of the proceedings was harmless.

5. Review During Commitment Period

Defendant next contends that the EDA violates equal protection principles because SVPs and MDOs benefit from means to gain review during the commitment period that are not available to wards under the EDA. Defendant contends that an SVP may petition for release and obtain a full court hearing annually. ( 6605, 6607, 6608; People v. Cheek (2001) 25 Cal.4th 894, 898-899.) Defendant also contends that an MDO on parole must be released if he is in remission and may be kept in remission without treatment (Pen. Code,  2968) and may have a review by Board of Prison Terms at each presumptive early parole date (Pen. Code, 3000.1, subd. (b), 3001; Cal. Code Regs., tit. 15,  2535, 2580) and that after expiration of the MDOs parole period, the commitment must be reviewed annually (Pen. Code, 2972).

Defendant contends that, in contrast, the EDA provides only for an annual internal CYA review at which the CYA may discharge the committee ( 1766, 1802), the EDA provides no opportunity for a ward to petition a court for release during the two-year commitment term, and the EDA does not require the CYA to release a committee who is no longer a danger to the public.

We will assume for purposes of argument that wards under the EDA are similarly situated with respect to MDOs and SVPs for purposes of a right to review during the commitment period. (See People v. Hubbart, supra, 88 Cal.App.4th at p. 1217.) However, we find no unconstitutional disparate treatment.

First, we disagree that the EDA does not require the CYA to release a committee who is no longer a danger to the public. In In re Schmidt (2006) 143 Cal.App.4th 694, the court held that the CYA has the authority to release conditionally a person committed under section 1800.^[1] Section 1802 provides that When an order for continued detention is made as provided in Section 1801, the control of the authority over the person shall continue, subject to the provisions of this chapter, . . . Thus, when a persons commitment is extended, the CYAs control over that person continues to the extent authorized by the other provisions of the chapter containing section 1802, which is chapter 1 of division 2.5 of the Welfare and Institutions Code. (In re Schmidt, supra, 143 Cal.App.4th at p. 712.)

Section 1765 provides, (a) Except as otherwise provided in this chapter, the Department of the Youth Authority and the Youth Authority Board shall keep under continued study a person in their control and shall retain him or her, subject to the limitations of this chapter, under supervision and control so long as in their judgment that control is necessary for the protection of the public. [] (b) The board shall discharge that person as soon as in its opinion there is reasonable probability that he or she can be given full liberty without danger to the public.

Section 1766, subdivision (a)(1), allows the CYA to release conditionally a person committed under the EDA under supervision and with conditions. And section 1766, subdivision (a)(6), authorizes the CYA to discharge [a ward] from its control when it is satisfied that discharge is consistent with the protection of the public. (In re Schmidt, supra, 143 Cal.App.4th at pp. 711-712.)

Moreover, wards in the custody of the CYA must be periodically reviewed. Section 1720, subdivision (b) provides, The Division of Juvenile Facilities shall periodically review the case of each ward for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force. These reviews shall be made as frequently as the department considers desirable and shall be made with respect to each ward at intervals not exceeding one year. The review must be in writing and must verify the wards treatment or program goals to assure the ward is receiving the required treatment. ( 1720, subd. (e).) If the wards case is not reviewed within 15 months of a prior review, the ward may petition the court that committed him for a discharge order. ( 1720, subd. (d).) The court must be served with copies of the wards annual reviews and must discharge the ward unless satisfied of the need for further control ( 1720, subds. (d), (f).)

These review procedures under the CYA appear to be at least as stringent as those conducted by the Board of Prison Terms for MDOs under Penal Code sections 3000.1, subdivision (b), and 3001. And the ward may petition the court for a discharge order if the review is not timely conducted. ( 1720, subds. (d), (f).) Thus, we conclude that the review procedures under the EDA do not violate equal protection.

6. Broader Commitment Criteria

Defendant next argues that the MDO laws and the SVPA apply to much narrower groups of people than are subject to the EDA, and an adult CYA ward may be committed under circumstances that would not apply to an adult prisoner.

To qualify for an SVPA commitment, the person must have been convicted of sexually violent offenses against two victims. ( 6600.) A single prior juvenile adjudication may be used as a qualifying offense if the juvenile was 16 years of age or older when he or she committed the offense; the offense was sexually violent; the juvenile was adjudged a ward within the meaning of section 602; and the juvenile was committed to CYA for the sexually violent offense. ( 6600, subd. (g).)

The MDO laws require that the commitment offense be one of 14 enumerated serious crimes or a crime involving use of a weapon or force, causing great bodily injury, or threatening to cause substantial injury. (Pen. Code, 2962, subd. (e).) In addition, the person must have been treated for his or her mental disorder during the prison term. (Pen. Code,  2962, subd. (c).)

In contrast, under the EDA, there are no particular qualifying offenses, and an EDA commitment may be imposed on any adult CYA ward.

In a similar context, courts have recognized that SVPs and MDOs are not even similarly situated to each other for the purpose of the definition of mental disorder. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 (Calderon).) In Calderon, the court explained: [T]he definition of mental disorder under the SVPA is less exacting than the one under the MDO commitment scheme. [Citation.] Also, SVPA requires a finding that the person is likely to commit violent sex crimes, whereas MDO commitments require a present threat of harm. [Citation.](Ibid.) In People v. Lopez (2004) 123 Cal.App.4th 1306, the court similarly held that the SVPA does not violate equal protection by defining mental disorder more broadly than does the MDO Act. (See also Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773.)^[2]

In People v. Buffington, supra, 74 Cal.App.4th at p. 1157, the court held that the SVPA did not violate equal protection principles by imposing disparate treatment when compared to the MDO laws and other civil commitment statutes, including the not guilty by reason of insanity defense (Pen. Code, 2960 et seq.) and the Lanterman-Petris-Short Act (Welf. & Inst. Code,  5000 et seq.). The defendant argued that the SVPAs definition of mental disorder was less severe, the SVPAs evidentiary standards were easier to meet, and the SVPA provided less treatment for mental disorders of SVPs than did the other statutory schemes. (People v. Buffington, supra, 74 Cal.App.4th at p. 1155.) The court reviewed each challenge separately. The court first found that SVPs were similarly situated for purposes of the mental disorder definition to other persons involuntarily committed under the other statutory schemes. (Id. at p. 1156.) The court found, however, that all groups were similarly treated. The court explained that regardless of the specific terms used, all the statutory schemes encompass a current mental condition that renders a person dangerous beyond his or her control. Thus, SVPs are treated similarly for these purposes of the law. (Id. at p. 1157.) The court further explained, However, this is not to say that persons committed under Californias various civil commitment statutes are similarly situated in all respects. They are not. For example, the SVPA restricts commitments to those who have committed sexually violent offenses and who have the propensity due to their mental disorder to commit further acts of sexual violence. The MDO scheme restricts commitments to felons who are violent because of their mental disorder and who remain a danger because of that disorder. [T]he [L]egislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. [Citation.] The Legislature may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citation.] In line with these equal protection principles that sanction certain differences in degree, the Legislature has not acted unconstitutionally by failing to exclude personality or adjustment disorders from the SVPAs definition of diagnosed mental disorder; indeed, the Kansas SVP Acts definition of mental disorder at issue in Hendricks [supra, 521 U.S. 346] expressly included personality disorder without violating constitutional principles. The definition of mental disorder under both the SVPA and the MDO Act still rests on a similar foundation for equal protection purposes. (Id. at pp. 1158-1159.)

Moreover, in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, the California Supreme Court rejected the defendants challenge that his commitment under the SVP violated equal protection principles because the criteria for commitment, particularly dangerousness, are less exacting than the standards used under analogous statutory schemes. (Id. at p. 1168.) The court held that the SVPA, like the other commitment statutes, required a finding of a current mental disorder that gives rise to current dangerousness based on an impairment of the ability to control violent behavior. Thus, the court held, that even assuming SVPs are similarly situated to other persons subject to civil commitment, the relevant statutes did not lead to disparate treatment. (Id. at pp. 1169-1170.)

We likewise conclude that, even if wards committed under the EDA are similarly situated to MDOs or SVPs, the statutes defining the underlying offenses do not lead to disparate treatment.

7. Conditions of Placement

Defendant contends that MDOs and SVPs are placed in nonpunitive conditions in that they are both committed to the Department of Mental Health and must be housed in a state hospital, not a prison. (Welf. & Inst. Code,  6600, 6600.05, 6604; Pen. Code,  2962, 2964.) In contrast, under the EDA, wards are recommitted to the CYA where they are placed with the general population of wards and are treated no differently from them.

In Jones v. Blanas (9th Cir. 2004) 393 F.3d 918, the defendant was confined for a year in the general criminal population of the county jail while commitment proceedings were pending under the SVPA. The court held that when a SVPA detainee was held in conditions identical to, similar to, or more restrictive than those in which his criminal counterparts were held, the court would presume that the detainee was being subjected to punishment in violation of the Due Process Clause, and thus summary judgment was improper on the defendants substantive due process claim. (Id. at pp. 934-935.)

The Supreme Court has held, however, that [t]he commitment and detention for treatment of a physically dangerous Youth Authority ward does not of itself deny equal protection. . . . [T]he Legislature has enacted a unified framework of laws providing for the involuntary commitment of persons who present a danger to society. It is not unreasonable that the Legislature should devise several means by which to detect and isolate persons who may present a danger to society. It is particularly appropriate that a prior contact with the system of criminal justice should be an event which may give rise to such an inquiry inasmuch as the antisocial act which brought the defendant before the court may be symptomatic of a condition which instills a propensity to commit such acts. The legislative decision to provide for continuation of treatment of Youth Authority wards who have reached their majority under Youth Authority control, rather than transferring their treatment to the Department of Mental Hygiene or another agency of the state is neither unreasonable nor arbitrary. [Citations.] (In re Gary W., supra, 5 Cal.3d at p. 304, fn. omitted.) Thus, we conclude that the conditions of placement do not violate equal protection.

8. Requirement of Treatment for Mental Disorder

Defendant further argues that both MDOs and SVPs must be provided mental health treatment, but that the EDA contains no such requirement. An SVP is committed to the Department of Mental Health and must be housed in a state hospital, not a prison. ( 6600, 6600.05, 6604.) Treatment must be provided for an SVPs diagnosed mental disorder. ( 6606, subd. (a); see Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 176-177.)

An MDO is also committed to the Department of Mental Health and must be provided with necessary treatment, which may be on an outpatient basis. (Pen. Code,  2962, 2964.) An MDO must have been treated while still in prison, and the treatment must have been continuously provided. (Pen. Code,  2960, 2962, subd. (c), 2970, 2972, subd. (f).) Courts have held that no significant difference exists regarding treatment provisions once a person is found to be a[n] MDO or an SVP. (People v. Poe (1999) 74 Cal.App.4th 826, 833; accord, People v. Starr (2003) 106 Cal.App.4th 1202, 1208.)

Defendant argues that the EDA does not require the CYA to provide treatment. He bases this argument, in part, on the fact that a provision of the EDA, which formerly explicitly required the CYA to provide treatment for recommitted wards, was deleted during statutory revisions in 1998. Specifically, former section 1801 provided that if the court formed the opinion at the probable cause hearing that discharge of the ward would be dangerous to the public because of the wards mental or physical deficiency, disorder, or abnormality, the court should order the CYA to continue treatment of the person. (Former  1801, added by Stats. 1963, c. 1693, p. 3323,  4.) The current version of that section no longer includes any mention of treatment.

However, defendant looks at the statutory amendment in isolation without considering the overall statutory scheme and the obligations of the CYA. First, section 1700, which sets forth the purpose of the Youth Authority Act ( 1700-1915), provides, The purpose of this chapter is to protect society from the consequences of criminal activity and to that purpose community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses. (Italics added.)

Second, the CYA has an express continuing obligation to wards to provide treatment during their confinement. Section 1802 provides that when an order for continued detention is made, the control of the authority over the person shall continue, subject to the provisions of this chapter. . . .^[3](Italics added.) In this regard, section 1720 provides, (b) The Division of Juvenile Facilities shall periodically review the case of each ward for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force. These reviews shall be made as frequently as the department considers desirable and shall be made with respect to each ward at intervals not exceeding one year. [] . . . [] (e) Reviews conducted by the division pursuant to this section shall be written and shall include, but not be limited to, the following: verification of the treatment or program goals and orders for the ward to ensure the ward is receiving treatment and programming that is narrowly tailored to address the correctional treatment needs of the ward and is being provided in a timely manner that is designed to meet the parole consideration date set for the ward; an assessment of the wards adjustment and responsiveness to treatment, programming, and custody; a review of the wards disciplinary history and response to disciplinary sanctions; an updated individualized treatment plan for the ward that makes adjustments based on the review required by this subdivision; an estimated timeframe for the wards commencement and completion of the treatment programs or services; and a review of any additional information relevant to the wards progress. (Italics added.)

Finally, the Supreme Court has unequivocally declared that treatment of wards is required during extended detention: [T]he Youth Authority is under an affirmative obligation to provide treatment for the wards mental or physical abnormality when he is committed pursuant to [sections 1800 to 1803]. Detention of such wards without treatment is unauthorized by statute. Accordingly, any person confined pursuant to a section 1800 commitment, but who is not receiving treatment[,] may seek his release through appropriate habeas corpus procedures. [Citations.] (In re Gary W., supra, 5 Cal.3d at p. 303.)^[4] We conclude that the EDA requires continuing treatment for wards and therefore does not violate equal protection.

D. Other Constitutional Challenges

Defendant contends that the extension of his detention was unconstitutional because the EDA is penal in nature and violates both substantive due process and the prohibition against cruel and unusual punishment. Both the federal and California Constitutions require that no person shall be deprived of liberty without due process of law. (U.S. Const., 14th Amend.; Cal. Const., art. I,  7.) In Howard N., the Supreme Court stated the due process requirements for civil commitment: The high court has repeatedly recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citation.] (Howard N., supra, 35 Cal.4th at p. 127.)^[5]

In Howard N., the court declined to reach the issue whether the EDA is a penal rather than a civil commitment scheme, and therefore should be judged under the more rigorous standards of substantive due process, because the issue was not raised in the defendants petition for review. (Howard N., supra, 35 Cal.4th at p. 138, fn. 8.) However, the California Supreme Court has already spoken on the issue, stating that sections 1800 through 1803 have a demonstrably civil purpose. (In re Gary W., supra, 5 Cal.3d at p. 302.) The court further stated that the Legislature has been at pains to assure that confinement pursuant to sections 1800-1803 shall be only for the purpose of treatment. (Id. at p. 301.)^[6]

Moreover, the premise underlying defendants argument that the EDA is penal in nature is his assertion that the EDA imposes incarceration without any requirement of treatment. As discussed above, we have rejected that premise, as did the California Supreme Court in In re Gary W., supra, 5 Cal.3d 296, which held that the CYA has an affirmative obligation to provide treatment for wards under extended detention. We thus

conclude that defendants extended detention under the EDA does not violate substantive due process.

IV. DISPOSITION

The order appealed from is affirmed.

CERTIFIED FOR PUBLICATION

HOLLENHORST

Acting P. J.

We concur:

KING

J.

MILLER

J.

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^[1] The court in In re Schmidt observed that the EDA scheme does not include detailed procedures for conditional release and invited the Legislature to provide statutory direction regarding the appropriate procedures. (In re Schmidt, supra, 143 Cal.App.4th at pp. 715-716.) We concur in that invitation.

^[2] We note that for purposes of argument, the court in People v. Hubbart, supra, 88 Cal.App.4th at p. 1217, assumed that SVPs and MDOs were similarly situated for purposes of the definitions of mental disorder under the respective statutory schemes governing those groups.

^[3] Chapter 1 of the Youth Authority Act comprises sections 1700 through 1915.

^[4] Although the court in In re Gary W. based its holding in part on the language of former section 1801 concerning the requirement for treatment of a ward as to whom probable cause has been found for extended detention (In re Gary W., supra, 5 Cal.3d at p. 303), in our view the general statutory requirement for treatment as set forth above leads to the same result. As noted above, we are required to assume the Legislature intended the statutory scheme to be constitutional unless its unconstitutionality clearly, positively, and unmistakably appears. (People v. Falsetta, supra, 21 Cal.4th at p. 913.)

^[5] Citing People v. Getty (1975) 50 Cal.App.3d 101, 113-114 and In re Cavanaugh (1965) 234 Cal.App.2d 316, 319, the People argue that the EDA is civil in nature because it merely extends the original, civil Youth Authority commitment. However, the California Supreme Court rejected this position in Howard N., in which the court stated, [T]he [EDA] scheme involves neither a juvenile proceeding nor an extension of a prior juvenile court proceeding. (Howard N., supra, 35 Cal.4th at p. 126; see also In re Schmidt, supra, 143 Cal.App.4th at p. 707 [Instead, a proceeding under section 1800 results in a modification of the dispositional order. [Citation.].)

^[6] The Gary W. court further held that if a person confined under the EDA does not in fact receive treatment, he may seek relief through habeas corpus procedures. (Gary W., supra, 5 Cal.3d at p. 303.)