P. v. Cheek





Filed 12/18/08 P. v. Cheek CA6






NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Appellant, v. MICHAEL THOMAS CHEEK, Defendant and Appellant.

H031164 (Santa Cruz County Super. Ct. No. ME-30)

I. INTRODUCTION
A jury found Michael Thomas Cheek to be a sexually violent predator under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600, et seq.)[1]
By order filed January 5, 2007, the trial court committed Cheek to the Department of Mental Health for a period of two years, from July 14, 2005, to July 14, 2007. In committing Cheek to a two-year term, rather than to an indeterminate term pursuant to amendments to the SVPA in 2006, the trial court concluded that the amended SVPA was unconstitutional and that the prior statutory scheme, before the 2006 amendments, should be enforced by the court.
Both parties appeal from the January 5, 2007, order of commitment. The People contend that Cheek should be committed to an indeterminate term of commitment, rather than a two-year term as ordered by the trial court.
In his cross-appeal, Cheek argues the trial court correctly determined that the amended SVPA is unconstitutional. Cheek asserts that the amended SVPA violates the due process, ex post facto, double jeopardy, and equal protection clauses. He also contends that the trial court did not have jurisdiction to extend his commitment as a sexually violent predator, and application of an indeterminate term would be an unlawful retroactive application of the amended SVPA. He further claims that the court’s refusal to allow 20 peremptory challenges denied him a fair trial, there were several errors regarding jury instructions, there was insufficient evidence that “he had tried and failed to control his behavior,” and the cumulative error at trial requires reversal of the order of commitment. Lastly, he contends that the amended SVPA violates his First Amendment right to petition.
For reasons that we will explain, we reverse the order of commitment and direct the trial court to enter a new order committing Cheek for an indeterminate term of commitment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Cheek’s Commitment Under the SVPA From 1997 to 2005
In 1980, Cheek was convicted of rape and forcible oral copulation in Santa Cruz County.[2] Allegations of firearm use were found true. Cheek was sentenced to prison, but before serving that prison term, he was transported to Contra Costa County for probation violation proceedings relating to an earlier offense.
Before probation violation proceedings commenced in Contra Costa County, Cheek escaped from custody and committed a rape in Lake County. In 1981, Cheek was convicted of rape and furnishing a controlled substance to minors in Lake County. A firearm allegation was found true. Cheek was sentenced to prison.
Before being transported to prison to begin serving his Lake County and Santa Cruz County sentences, Cheek was again returned to Contra Costa County for probation violation proceedings, where he received a prison sentence.
At the end of Cheek’s prison term, the People instituted commitment proceedings against him under the SVPA. The People alleged that Cheek had been convicted of sexually violent offenses, including the convictions in 1980 for rape and forcible oral copulation and the conviction in 1981 for rape. Cheek admitted the allegations in the petition. On July 14, 1997, Cheek was found to be a sexually violent predator and committed to the California Department of Mental Health for two years.
Cheek’s initial commitment was set to expire in July 1999. After litigation delays, mistrials, and multiple appellate court proceedings,[3] three petitions by the People to extend Cheek’s commitment for additional two-year terms, to July 14, 2005, were consolidated for trial. In April and May 2005, a jury trial was held on the three consolidated petitions. Cheek was found to be a sexually violent predator, and the court ordered him committed to the Department of Mental Health for three successive two-year periods, through July 14, 2005. We upheld that commitment in People v. Cheek, supra, H028964.
B. Proceedings to Commit Cheek Beyond 2005
Petition to Commit Cheek for an Indeterminate Term
Before the jury trial began on the three consolidated petitions, the People, on January 12, 2005, filed another petition to extend Cheek’s commitment, this time from July 14, 2005 to July 14, 2007. The trial court denied the People’s motion to consolidate this latest petition with the three previously consolidated petitions. A jury trial on the latest petition was scheduled for September 2005. During the next year, the trial date was continued several times at the request of the prosecutor or defense counsel.
On October 16, 2006, the People filed a first amended petition to extend Cheek’s commitment for an indeterminate term pursuant to section 6604. Section 6604 was amended effective September 20, 2006, when the Governor signed into law Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128), which provided for, among other things, an indeterminate term of commitment rather than a two-year term. (See Stats. 2006, ch. 337.)
On November 14, 2006, Cheek filed a motion to dismiss the amended petition for lack of jurisdiction. He argued that the amendments to sections 6604 and 6604.1 “eliminated the authorization for extending commitments” under the SVPA; the amendments to the SVPA did not automatically convert a two-year commitment term to an indeterminate term; and retroactive application of the amendments “would run afoul of the due process clauses of both the state and federal constitutions.” Cheek asserted that he was “not subject to further proceedings” under the SVPA.
Cheek also filed a demurrer to the amended petition on November 14, 2006. He contended that the amended SVPA violates the ex post facto, double jeopardy, equal protection, and due process clauses. The People filed oppositions to Cheek’s motion to dismiss and demurrer.
On December 1, 2006, a hearing was held on Cheek’s motion and demurrer. The trial court denied the motion to dismiss and overruled the demurrer. The court determined that the matter would proceed to trial as to whether Cheek was a sexually violent predator, although the court expressed doubt as to the constitutionality of the amended SVPA regarding the procedure for a probable cause hearing under section 6605.
Jury Trial
The trial on the amended petition to extend Cheek’s commitment began in December 2006, and the jury heard expert and lay testimony over several days.
The People’s Witnesses
Two expert witnesses, Dr. Dawn Starr and Dr. Dale Arnold, testified for the People. Dr. Starr, a psychologist, testified that the Department of Mental Health had asked her to evaluate whether certain individuals are sexually violent predators. Between 2001 and 2006, Dr. Starr prepared nine reports regarding Cheek. The sources of information for Dr. Starr’s first report regarding Cheek included criminal, prison, and medical records, and the records from his commitment at Atascadero State Hospital. For subsequent reports, Dr. Starr reviewed, among other things, the documents generated since her previous report. Dr. Starr interviewed Cheek in connection with the 2002 and 2003 reports. Cheek declined to be interviewed by Dr. Starr for her subsequent reports.
Dr. Starr diagnosed Cheek with paraphilia not otherwise specified and personality disorder not otherwise specified, with antisocial and narcissistic features. Dr. Starr also diagnosed Cheek with polysubstance dependence, but she explained that it “is in remission or somewhat remission because he is in a controlled environment.” Dr. Starr testified that two of the diagnosed disorders—paraphilia and personality disorder—impair Cheek’s volitional and emotional capacity.
Dr. Starr further testified that Cheek is likely to commit a sexually violent predatory offense if released into the community. In making this risk assessment, Dr. Starr considered, among other things, Cheek’s score on the “Static-99,” an actuarial instrument, and the Hare Psychopathy Checklist. Dr. Starr indicated that if Cheek failed to maintain sobriety in the community, it would be an additional risk factor for sexual offending. When questioned about the impact of Cheek’s age, Dr. Starr testified that she did not “see anything about [Cheek’s] mental or physical ability” that would preclude him from sexually offending in the future notwithstanding the fact that Cheek was in his mid fifties at the time of trial.
The People’s second expert witness was Dr. Arnold, a psychologist contracted by the Department of Mental Health to do sexually violent predator evaluations. Between 1999 and 2006, Dr. Arnold evaluated Cheek several times and prepared eight reports. The sources of information that Dr. Arnold reviewed in connection with the reports included court documents and the records from Atascadero State Hospital. Cheek agreed to be interviewed by Dr. Arnold once, in 2002.
Dr. Arnold testified that Cheek has a mental disorder predisposing him to commit sexually violent acts and that he is likely to commit another sexually violent offense if released to the community. Dr. Arnold diagnosed Cheek with paraphilia not otherwise specified, polysubstance dependence, and antisocial personality disorder. Dr. Arnold testified that the diagnosed mental disorders affect Cheek’s emotional and volitional capacity. He also testified that although Cheek’s age is a mitigating factor regarding the risk of reoffending, Cheek is “still a very strong person” and “a very fit person” and his age did not eliminate the other factors for risk of reoffending.
In addition to the two witnesses offering expert opinions, several other witnesses testified during the People’s case. Dr. Dana Evan Putnam, a licensed psychologist with whom the Department of Mental Health contracts for evaluations under the SVPA, testified that she interviewed Cheek in 1997. During the interview, Cheek admitted raping the victims in Santa Cruz County and Lake County and indicated that “these were not isolated incidents” but were “part of a pattern of behavior.” Cheek stated that “he had five years of straight impulsive behavior” and that “he was a predator for sex, drugs and violence.”
Five employees from Atascadero State Hospital testified about their contact with or observations of Cheek. Christine Weaver, a registered nurse, worked in the same unit where Cheek was housed in 2005 to 2006. Weaver testified that there was a concern that Cheek was using controlled substances that had not been prescribed to him. She described changes in Cheek’s demeanor and physical appearance during this period of time, including increased irritability and argumentativeness, slurred speech, wearing sunglasses indoors more than usual, and being disheveled when he usually was neat in appearance. She also described an incident during which she felt threatened by Cheek.
Stephanie French, a unit supervisor, similarly observed changes in Cheek’s demeanor and appearance. French told Cheek that if he denied being under the influence, he should “clear [his] name” and take a lab test. Cheek declined to take the test.
Robert Mitchell and Tamara DeRose, psychiatric technicians at the hospital, also testified about changes in Cheek’s demeanor and appearance in late 2005 or early 2006, as well as described incidents in which they felt intimidated by Cheek.
Joann Askew, a psychiatric technician, testified about an incident that occurred in approximately 2003, during which she felt intimidated by Cheek. Cheek had stated angrily, with fists clenched, among other things: “ ‘What are you looking at you fucking little cunt‌’ ”
The People also called Cheek as a witness. Cheek described how he spent his time at Atascadero State Hospital and explained that he tries to spend most of his time in the courtyard. Cheek admitted to being arrested numerous times and being convicted of misdemeanors and felonies. When questioned about the sex offenses in Santa Cruz County in 1980 and in Lake County in 1981, he recalled very little of the details. He did detail his escape from custody between committing the two sets of offenses in Santa Cruz and Lake counties.
Cheek’s Witnesses
Two experts, Dr. Robert Halon and Dr. Beryl Davis, testified on behalf of Cheek. Dr. Halon, a psychologist, evaluated Cheek in 2005. In connection with the evaluation, Dr. Halon interviewed Cheek, administered psychological tests, and reviewed various documents, including probation reports, previous sexually violent predator evaluations, records from Atascadero State Hospital, and transcripts of the victims’ testimony.
Dr. Halon testified that there was insufficient evidence to support a diagnosis of paraphilia. Dr. Halon also ruled out substance abuse as an explanation for the rapes committed by Cheek. Dr. Halon found no evidence of volitional impairment. When asked whether Cheek has an antisocial personality disorder, Dr. Halon indicated that he was not sure whether Cheek “still has the disordered aspect” but he did consider Cheek to “still be very antisocial.”
Dr. Davis, a psychologist, evaluated Cheek in 2006. In connection with the evaluation, Dr. Davis interviewed Cheek and reviewed documents, including probation reports, transcripts of the victims’ testimony, prison disciplinary records, and some records from Atascadero State Hospital.
Dr. Davis testified that Cheek is not a sexually violent predator. While Dr. Davis diagnosed Cheek as having antisocial personality disorder, she also testified that the disorder does not predispose a person to commit sexually violent criminal acts. She explained that antisocial behavior and sex offense recidivism diminish with age, and it was her understanding that Cheek was 55 years old at the time of the trial. She further testified that antisocial people have volitional control. Cheek was diagnosed by Dr. Davis with polysubstance abuse in institutional remission. She did not diagnose him as a paraphiliac. According to Dr. Davis, Cheek does not present a significant risk of committing a new sexual offense if released to the community.
In addition to these two expert witnesses, three employees from Atascadero State Hospital testified in Cheek’s case, including Donald Woodard, a hospital police officer; Wendy A. Quinn, a substance abuse treatment facilitator and group caseload provider; and Michael Wayne Ross, a psychiatric technician. They testified that they never saw Cheek engage in inappropriate behavior and had never known him to be using a narcotic at the hospital.
Jury Verdict
On January 3, 2007, the jury found Cheek to be a sexually violent predator. After the jury returned its verdict, the trial court requested that the parties submit proposed orders concerning Cheek’s commitment. The court indicated that it would select one of the proposed orders, or draft its own, based on the comments it had made before the commencement of trial regarding the constitutionality of portions of the amended SVPA.
On January 5, 2007, the trial court filed an order committing Cheek to the Department of Mental Health for a period of two years, from July 14, 2005, to July 14, 2007. In the order, the court concluded that the amended SVPA violated the United States Constitution and therefore “the court should continue to enforce the prior statutory scheme.”
On February 2, 2007, the People filed a notice of appeal, purportedly appealing from a judgment entered on January 3, 2007. Cheek filed a cross-appeal on February 6, 2007, from the “judgment entered” and “commitment imposed on January 5, 2007.” By order filed June 6, 2007, we denied Cheek’s motion to dismiss the People’s appeal and directed the Attorney General to file an amended notice of appeal within 10 days. On June 14, 2007, the People filed an amended notice of appeal from the judgment entered on January 5, 2007.
On June 27, 2007, we granted the People’s petition for a writ of supersedeas, staying all further trial court proceedings on a recommitment petition filed by the People on February 22, 2007, until final determination of this appeal. We stated that the commitment of Cheek “shall be treated as a commitment to the California Department of Mental Health for an indeterminate term while the appeal is pending.”
III. OVERVIEW OF THE SVPA
The SVPA provides for the involuntary civil commitment, for treatment and confinement, of an individual who is found, by a unanimous jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent predator” (ibid). The SVPA was amended twice in 2006—in September, by Senate Bill 1128, and in November, by Proposition 83. We first provide an overview of one of the significant changes to the SVPA—the change from a two-year commitment term to an indeterminate term of commitment. We will discuss other changes in more detail in connection with the parties’ specific arguments on appeal.
Prior to the amendments in 2006, an individual determined to be a sexually violent predator was committed to the custody of the Department of Mental Health for a two-year term. The individual’s term of commitment could be extended for additional two-year periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.) The procedures applicable to extension proceedings resulted in essentially a new determination of sexually violent predator status every two years. (People v. Munoz (2005) 129 Cal.App.4th 421, 429-430.)
On September 20, 2006, the Governor signed into law Senate Bill 1128, which amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among other changes, the amended SVPA provided for an indeterminate term of commitment. (Stats. 2006, ch. 337, § 55.) The references to two-year commitment terms and extended commitments in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)
Less than two months after Senate Bill 1128 amended the SVPA, voters approved Proposition 83, which amended the SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd. (a).) The changes to the SVPA provided by Proposition 83 were not exactly the same as those previously provided by Senate Bill 1128, and Proposition 83 incorporated additional amendments to the SVPA beyond those provided by Senate Bill 1128. However, Proposition 83, similar to Senate Bill 1128, did amend the SVPA to provide that a sexually violent predator’s commitment term is “indeterminate.” (§ 6604; see § 6604.1.) Proposition 83 also eliminated all references to a two-year term of commitment and most references to an extended commitment in sections 6604 and 6604.1.
In this case, the People filed an amended petition to extend Cheek’s commitment for an indeterminate term on October 16, 2006, which was after Senate Bill 1128 became law but before voter approval of Proposition 83. Cheek’s trial on the amended petition began in December 2006, after both sets of amendments to the SVPA. In People v. Whaley (2008) 160 Cal.App.4th 779 (Whaley), we held that the amendments under Proposition 83 to sections 6604 and 6604.1, which provide for an indeterminate term of commitment, apply prospectively. We also determined that a person already committed as a sexually violent predator before the amendments under Proposition 83 is entitled to an extension proceeding at which a new determination would take place as to whether the person is a sexually violent predator. (Whaley, supra, 160 Cal.App.4th at p. 803.)
In this case, because (1) Proposition 83 provided the more recent amendments to the SVPA, (2) the amendments providing for an indeterminate term apply prospectively, and (3) Cheek’s trial occurred after the effective date of the amendments provided by Proposition 83, we will apply the version of the SVPA as it existed after the passage of Proposition 83 when considering the parties’ contentions on appeal. We will consider the version in effect before Proposition 83 was approved only to the extent that version is raised as an issue by the parties.
IV. DISCUSSION
A. People’s Appeal
The People contend that Cheek should be committed to an indeterminate term of commitment, rather than a two-year commitment term as ordered by the trial court.
The trial court committed Cheek to a two-year term after concluding that the statutory scheme before the 2006 amendments should be enforced because the amended SVPA violates the United States Constitution. The court explained that the provisions concerning a “probable cause hearing” for a person committed to an indeterminate term were “[o]f specific concern to the court . . . .” The court interpreted section 6605, subdivision (c), as making the court the “gate keeper between the defendant and a jury trial” and imposing a burden on the defendant to prove that his or her mental disorder has changed. The court reasoned: “Such a provision does not simply address what the person’s present condition is but requires some change. From what‌ It is not unrealistic to expect that the experts for the People would opine that the defendant’s condition has not changed, but the defendant’s experts would opine that the defendant has never been disabled as defined by statute. Must the defendant find an expert who opines that the defendant’s condition has changed‌ Is a person deprived of a jury trial unless he/she asserts his/her condition has changed‌ The effect of the statutory change in this particular lends substance to the argument that the indeterminate commitment is in fact an indeterminate commitment. As such, the statutory scheme loses its civil status as defined in Kansas v. Hendricks and becomes punitive in nature.”
In interpreting the relevant provisions of the SVPA, we apply the well-settled rules of statutory construction. “ ‘The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.] When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. [Citations.]” [Citation.] ‘ “When the language is susceptible of more than one reasonable interpretation . . . , we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” ’ [Citation.]” (People v. Jefferson (1999) 21 Cal.4th 86, 94.)
Section 6605 pertains to certain post-commitment procedures. After a person is “found to be a sexually violent predator^[[4]] and committed to the custody of the State Department of Mental Health,” the person’s mental condition must be evaluated by the Department at least once every year. (§ 6605, subd. (a).) The annual report must “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.” (Ibid.) This report must be in the form of a declaration and prepared by a “professionally qualified person.” (Ibid.) A copy of the report must be served on the prosecuting agency and the committed person, and it must be filed with the court. The committed person may retain an expert or, “if he or she is indigent and so requests,” the court may appoint an expert to examine the person. (Ibid.)
If the Department of Mental Health determines that “(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).)
After the court receives the petition, “a show cause hearing” must be held by the court in order to “consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person.” (§ 6605, subd. (b).)
Pertinent here, section 6605, subdivision (c), provides: “If the court at the show cause hearing determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue.” (Italics added.) This language in subdivision (c) has not changed since the SVPA first took effect on January 1, 1996. (Stats.1995, ch. 763, § 3.)
Section 6605 further provides that if the court finds probable cause and subsequently sets a full hearing on the issue, the committed person is entitled to “all constitutional protections that were afforded . . . at the initial commitment proceeding.” (§ 6605, subd. (d).) The committed person may demand a jury trial and have a court-appointed expert. (Ibid.) At the trial, the People must “prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.) If the court or jury rules against the committed person, the person is committed for an indeterminate term. “If the court or jury rules for the committed person, he or she shall be unconditionally released and unconditionally discharged.” (§ 6605, subd. (e).)
In this case, the trial court interpreted section 6605, subdivision (c), regarding the show cause hearing, as requiring a “change” in the defendant’s mental condition rather than requiring an inquiry into the “present” mental condition of the defendant. The court expressed concern about a case in which the defendant or the defendant’s expert believed that the defendant is not, and never was, a sexually violent predator. The court apparently believed that probable cause would not be shown in this instance at the show cause hearing and, consequently, the defendant would not be entitled to a jury trial regarding whether the commitment should continue or whether the defendant should be released.
We believe that the reference in subdivision (c) of section 6605 to a defendant whose mental condition has “changed” reasonably encompasses a defendant whose current mental condition is such that the defendant does not meet the definition of a sexually violent predator, regardless of whether the defendant or the defendant’s expert believes that the current mental condition represents a change over time. Section 6605 applies if the defendant has already been “found to be a sexually violent predator . . . .” (§ 6605, subd. (a).) Thus, if the defendant’s current mental condition is such that the defendant does not meet the definition of sexually violent predator, then the defendant’s current mental condition necessarily represents a change from the defendant’s earlier mental condition when the defendant was found to be a sexually violent predator. We do not find any language in section 6605 suggesting that the defendant or the defendant’s expert must believe or opine that a change has occurred in the defendant’s mental condition. Rather, we construe the reference to the defendant’s “changed” mental condition in section 6605, subdivision (c), as requiring the court at the show cause hearing to consider the defendant’s current mental condition, as contrasted with the earlier finding, by the jury or the court, that the defendant’s mental condition, among other things, qualified the defendant as a sexually violent predator. Thus, if the court at the show cause hearing “determines that probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged” (§ 6605, subd. (c)), then the person is entitled to a hearing and may demand a jury trial (§ 6605, subds. (c) & (d)).
The parties have not directed our attention to any authority suggesting that this interpretation would render unconstitutional the amended SVPA as concluded by the trial court. We therefore turn to the arguments raised by Cheek in his cross-appeal.
B. Cheek’s Cross-Appeal
Cheek asserts that the amended SVPA violates the due process, ex post facto, double jeopardy, and equal protection clauses.[5] He also contends that the trial court did not have jurisdiction to extend his commitment as a sexually violent predator, and application of an indeterminate term would be an unlawful retroactive application of the amended SVPA. He further claims that the court’s refusal to allow 20 peremptory challenges denied him a fair trial, there were several errors regarding jury instructions, there was insufficient evidence that “he had tried and failed to control his behavior,” and the cumulative error at trial requires reversal of the order of commitment. Lastly, he contends that the amended SVPA violates his First Amendment right to petition.
1. Due Process
Cheek contends that the amended SVPA, which provides for an indeterminate term of commitment, violates the due process clause of the Fourteenth Amendment to the United States Constitution. He believes that the amended SVPA “creates an unacceptable risk that [a committed person] who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process.” In particular, Cheek argues that the “mechanisms for judicial review of the defendant’s confinement” under sections 6605 and 6608 are not “constitutionally adequate.” Among other things, he objects to a committed person having to bear the burden of proof by a preponderance of the evidence in order to be released under section 6608.
Freedom from physical restraint is “ ‘at the core of the liberty protected by the Due Process Clause from arbitrary governmental action[.]’ [Citation.]” (Kansas v. Hendricks (1997) 521 U.S. 346, 356 (Hendricks).) However, this “liberty interest is not absolute. . . . [A]n individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context . . . .” (Ibid.) For example, the 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.]” (Id. at p. 357.) The United States Supreme Court has “consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. [Citations.]” (Ibid.) Even so, “ ‘[d]ue process is flexible and calls for such procedural protections as the particular situation demands.’ [Citation.]” (Jones v. United States (1983) 463 U.S. 354, 367-368 (Jones).)
The due process clause does not necessarily preclude civil commitment for an indeterminate period. For example, in Jones, supra, 463 U.S. 354, the United States Supreme Court determined that the due process clause did not require the petitioner, who was committed by the District of Columbia to a mental hospital upon being acquitted of a crime by reason of insanity, to be released after being hospitalized for a period longer than he might have served in prison had he been convicted. The law under consideration allowed the person to be released upon certification by the hospital or upon periodic review hearings at which the committed person had the burden of proving by a preponderance of the evidence that the person was no longer mentally ill or dangerous. (Id. at pp. 357-358.)
The Supreme Court explained: “The purpose of commitment following an insanity acquittal, like that of civil commitment, is to treat the individual’s mental illness and protect him and society from his potential dangerousness. The committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous. [Citations.] And because it is impossible to predict how long it will take for any given individual to recover -- or indeed whether he ever will recover -- Congress has chosen, as it has with respect to civil commitment, to leave the length of commitment indeterminate, subject to periodic review of the patient’s suitability for release.” (Jones, supra, 463 U.S. at p. 368.) The court concluded that it was constitutionally permissible for the government to confine the individual in a mental institution until the individual has regained sanity or is no longer dangerous. (Id. at p. 370; see Addington v. Texas (1979) 441 U.S. 418 [due process clause requires in a civil proceeding clear and convincing proof that an individual is mentally ill and dangerous in order to commit the individual to a mental hospital for an indefinite period].)
The fact that the petitioner in Jones affirmatively raised the defense of insanity at his criminal trial and in this case the People alleged Cheek was a sexually violent predator—and thus had a diagnosed mental disorder—in the initial commitment proceedings is not a pertinent basis on which to conclude that the finding of mental illness in Jones satisfied due process while the finding that Cheek had a diagnosed mental disorder in this case did not satisfy due process. It is the finding of mental illness (in addition to a finding of dangerousness) that is essential to satisfy due process, and not the identity of the party – the People or the committed person – who asserts that mental illness. Moreover, the standard of proof at an initial commitment proceeding under the SVPA – proof beyond a reasonable doubt – ameliorates any concern that the People, and not Cheek, raised that question. (See § 6604; Jones, supra, 463 U.S. at p. 362 [“the Due Process Clause requires the State in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and dangerous”].)
Regarding post-commitment review and the release procedure, as we have explained section 6605 requires an annual mental examination of a person committed under the SVPA and sets forth the procedure for a person to petition, upon the approval of the Department of Mental Health, for conditional release or unconditional discharge. If the trial court finds probable cause at the show cause hearing, a full hearing (trial) must be set and the People must prove beyond a reasonable doubt that the committed person’s mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged. If the court or jury finds for the committed person, the person must be unconditionally released and discharged.
While section 6605 allows for the filing of a petition for release upon the approval of the Department of Mental Health, section 6608 sets forth the procedure for a committed person to petition for conditional release or unconditional discharge “without the recommendation or concurrence of the Director of Mental Health.” (§ 6608, subd. (a), italics added.)[6] When the trial court receives such a petition, it “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.” (Ibid.) The person petitioning is entitled to assistance of counsel. (Ibid.)
The court may not take any action on the petition “without first obtaining the written recommendation of the director of the treatment facility” to which the person is committed. (§ 6608, subd. (j).) Further, the court may not hold a hearing on the petition until the person has been committed for at least one year. (§ 6608, subd. (c).)
At the hearing, the court must “determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d).) If the trial court “determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community” (ibid.), the person may be placed in a conditional release program for one year and may, after another court hearing, be unconditionally released from commitment (§ 6608, subds. (d)-(g)). If the court denies the petition for conditional release or unconditional discharge, the person must wait one year before filing a new application. (§ 6608, subd. (h).) In any hearing under section 6608, the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
In addition to a committed person filing a petition for release under section 6605 or 6608, the Department of Mental Health may initiate discharge or release proceedings. Under section 6607, “[i]f the Director of Mental Health determines that the person’s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release” to the committing court. (§ 6607, subd. (a).) Upon receipt, the court must “set a hearing in accordance with the procedures set forth in section 6608.” (§ 6607, subd. (b).) Moreover, section 6605 provides that if the Department “has reason to believe that” the committed person “is no longer a sexually violent predator, it shall seek judicial review of the person’s commitment pursuant to the procedures set forth in Section 7250^[[7]] in the superior court from which the commitment was made. If the superior court determines that the person is no longer a sexually violent predator, he or she shall be unconditionally released and unconditionally discharged.” (§ 6605, subd. (f).)
In this case, Cheek primarily relies on Hendricks, supra, 521 U.S. 346, and Foucha v. Louisiana (1992) 504 U.S. 71 (Foucha), to support his argument that the post-commitment review and release procedures under the amended SVPA are insufficient and, therefore, an indeterminate term of commitment under the act violates his federal constitutional right to due process.
In Hendricks, supra, 521 U.S. 346, the United States Supreme Court addressed whether the Kansas Sexually Violent Predator Act (Kan. Stat. Ann. § 59-29a01 et seq.) satisfied “ ‘substantive’ due process requirements” (Hendricks, supra, 521 U.S. at p. 356) and whether the law violated the double jeopardy or ex post facto clause. The Kansas statutory scheme defined a sexually violent predator as a 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.’ [Citation.]” (Id. at p. 352.) At issue in the court’s due process analysis was the statutory definition of a “mental abnormality,” which the Kansas statutory scheme defined as a “ ‘congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.’ [Citation.]” (Ibid.) The court explained that the Kansas statutory scheme “requires a finding of future dangerousness, and then links that finding to the existence of a ‘mental abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible, for the person to control his dangerous behavior. [Citation.]” (Id. at p. 358.) The court found that the definition of “mental abnormality” in the Kansas statutory scheme was consistent with the requirements of other statutes that it had upheld and concluded that the definition satisfied due process requirements. (Id. at pp. 356-360.) Although the Hendricks court described the post-commitment procedures under the Kansas statutory scheme (id. at p. 353), it did not consider these procedures in its due process analysis. Thus Hendricks is inapposite.
In Foucha, supra, 504 U.S. 71, the United States Supreme Court considered the constitutionality of a Louisiana statutory scheme that provided for the commitment in a psychiatric hospital of an individual found not guilty by reason of insanity. The Lousiana law allowed the continued commitment of an individual who was dangerous, but not necessarily mentally ill. (Id. at p. 73.)
The Supreme Court explained that “to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.” (Foucha, supra, 504 U.S. at pp. 75-76.) However, when a person is found not guilty by reason of insanity, a separate hearing establishing mental illness and dangerousness is not required, because these requirements may be “properly inferred” from the verdict. (Id. at p. 76.) Nonetheless, “ ‘[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,’ [citation]; i. e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer.” (Id. at p. 77.) Because there was no evidence that Terry Foucha was suffering from a mental illness, the Supreme Court determined that due process precluded his continued commitment. (Id. at pp. 77-80.)
The Supreme Court also observed that “Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous.” (Foucha, supra, 504 U.S. at pp. 81-82.) Cheek refers to this portion of Foucha in contending that the SVPA deprives him of due process by placing the burden of proof on him in a hearing under section 6608. This portion of Foucha, however, does not support Cheek’s argument.
The court in Foucha explained that a person who poses a danger to others may be subject to limited confinement in “certain narrow circumstances.” (Foucha, supra, 504 U.S. at p. 80.) For example, in United States v. Salerno (1987) 481 U.S. 739 (Salerno), the court rejected constitutional challenges to a statute providing for the pretrial detention of dangerous arrestees. The Foucha court explained that the “sharply focused” statute in Salerno provided, among other limitations, that only those arrested for the most serious of crimes (such as violent crimes and those punishable by life imprisonment or death) could be detained, the government had to prove by clear and convincing evidence that the arrestee posed a danger to the community, and the maximum duration of the pretrial detention “was limited by the ‘stringent time limitations of the Speedy Trial Act.’ [Citation.]” (Foucha, supra, 504 U.S. at p. 81.) In contrasting the confinement scheme described in Salerno with the Louisiana statutory scheme (see id. at p. 73) under which Foucha was confined, the court in Foucha made clear that in order to detain for dangerousness alone, the Louisiana statutory scheme needed to be more “carefully limited” (id. at p. 81) in order to “to defeat Foucha’s liberty interest under the Constitution in being freed from indefinite confinement in a mental facility” (id. at p. 82). Further, after summarizing the evidence that had been introduced against Foucha, the court found little evidence that he was dangerous. (Id. at p. 82.) It was in this context that the court objected to placing the burden of proof on Foucha.
Proceedings under the Louisiana statutory scheme of confinement at issue in Foucha, supra, 504 U.S. 71, are not comparable to proceedings under the amended SVPA. Pursuant to section 6605, the committed person’s mental condition is examined annually and the resulting report must be filed with the court. (§ 6605, subd. (a).) If the Department of Mental Health determines that the person is no longer a sexually violent predator or that conditional release is appropriate, the person may petition the court accordingly. (§ 6605, subd. (b).) If the court finds probable cause, the state will bear the burden of proof beyond a reasonable doubt. (§ 6605, subds. (c) & (d).) A person petitioning for discharge under section 6608 on the ground that the person is no longer a sexually violent predator is seeking a determination that is contrary to the initial adjudication and, to the extent the petition is brought more than one year after the initial adjudication, contrary to a more recent determination by the Department of Mental Health that the person is and remains a sexually violent predator—that is, the person has a mental illness and is dangerous. Nothing in Foucha suggests that due process precludes the state from imposing the burden of proof on the committed person in this circumstance.
Cheek also complains the filing of a petition under section 6605 for conditional release or unconditional discharge “is at the absolute discretion of the Department of Mental Health.” According to Cheek, the “government” can therefore “prevent any hearing,” after the initial commitment hearing, in which it would have the burden of proving beyond a reasonable doubt that the defendant has the requisite mental condition. We do not agree with Cheek’s interpretation of section 6605. Section 6605 requires an annual mental examination of the committed person (§ 6605, subd. (a)) and expressly provides that the Director of the Department of Mental Health “shall” authorize the committed person to file a petition for release if the Department determines that the person is no longer a sexually violent predator or that conditional release is appropriate (§ 6605, subd. (b)). The director has no discretion in these circumstances to withhold authorization for the filing of the petition.
Cheek further contends that under section 6608, which allows a committed person to petition for discharge or conditional release without authorization from the Director of Mental Health, there is no provision for the appointment of a mental health expert for the committed person and the trial court may summarily deny the petition if it believes the petition is frivolous.
Section 6608 entitles the committed person to the assistance of counsel. (§ 6608, subd. (a).) Although section 6608 does not explicitly provide for the appointment of a mental health expert, an annual mental examination by a professionally qualified person is provided under section 6605, with the resulting report filed with the court and a copy given to the committed person. (§ 6605, subd. (a).) Section 6605 also permits the committed person to retain an expert, or to request a court-appointed expert, and requires that the expert have access to all records concerning the committed person. (§ 6605, subd. (a); but see People v. Hardacre (2001) 90 Cal.App.4th 1392, 1398-1399 [appointment of expert under section 6605 to assist committed person in preparing for show cause hearing is within trial court’s discretion; only if trial court finds probable cause and schedules a full hearing must the court appoint an expert].) Thus, at a minimum, the committed person will receive an annual report regarding the person’s mental condition upon which the person may base a petition for discharge or conditional release. As for Cheek’s objection to the trial court’s authority to deny a frivolous petition without a hearing (§ 6608, subd. (a)), he fails to cite any authority suggesting that this limited power of the trial court violates an individual’s right to due process.
As the United States Supreme Court held in Jones, supra, 463 U.S. 354, it is constitutionally permissible to confine an individual in a mental institution until the individual has regained sanity or is no longer dangerous. (Id. at pp. 368-370.) We find that the procedures provided in the amended SVPA, including sections 6605 and 6608, are constitutionally adequate to ensure that a commitment under the amended SVPA does not continue if the individual’s mental condition no longer meets the criteria for commitment as a sexually violent predator.
2. Ex Post Facto Law and Double Jeopardy
Cheek next argues that an indeterminate term of commitment under the amended SVPA constitutes “punishment.” Cheek asserts that because this “punishment” is based on prior sexual offenses for which he has already been convicted and served prison time, the amended SVPA violates the ex post facto and double jeopardy clauses of the United States Constitution.
In support of his argument that the SVPA is now punitive in nature, Cheek generally refers to the “scope of the reforms embodied in [Senate Bill] 1128” and Proposition 83.[8] He also asserts that an indeterminate term of commitment is “excessive” because a “mental disorder is not necessarily a permanent condition.” Cheek further contends that the behavior “trigger[ing] application of the SVPA – both past conduct and future conduct – is defined as a crime” and the amendments “expanded the number of crimes” that make a defendant eligible for commitment.
An “essential prerequisite” for an ex post facto or double jeopardy claim is that the statute be punitive. (Hendricks, supra, 521 U.S. at p. 369.) To determine whether a statute is punitive, the court “must initially ascertain whether the legislature meant the statute to establish ‘civil’ proceedings. If so, [the court] ordinarily defer[s] to the legislature’s stated intent.” (Id. at p. 361.) “Although . . . a ‘civil label is not always dispositive,’ [citation], [a court] will reject the legislature’s manifest intent only where a party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ [Citation.] In those limited circumstances, [a court] will consider the statute to have established criminal proceedings for constitutional purposes.” (Ibid.)
When analyzing the effects of a statutory scheme, there are seven factors that provide “a useful framework,” although “they are ‘neither exhaustive nor dispositive . . . .” (Smith v. Doe (2003) 538 U.S. 84, 97.) Those factors are whether the statutory scheme: (1) “has been regarded in our history and traditions as a punishment,” (2) “imposes an affirmative disability or restraint,” (3) “promotes the traditional aims of punishment,” (4) “has a rational connection to a nonpunitive purpose,” (5) “is excessive with respect to this purpose” (ibid.), (6) “whether the regulation comes into play only on a finding of scienter,” and (7) “whether the behavior to which it applies is already a crime” (id. at p. 105).
The California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart), held that the original version of California’s SVPA, which went into effect in 1996 (id. at p. 1143), was not punitive in nature and did not otherwise implicate ex post facto concerns (id. at p. 1179). Among other things, the Hubbart court explained that the California Legislature, in describing the underlying purpose of the SVPA as originally enacted, “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. (See, e.g., Stats. 1995, ch. 763, § 1; Sen. Com. on Crim. Procedure, Analysis of Assem. Bill No. 888 (1995-1996 Reg. Sess.) July 11, 1995.) 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.’ (§ 6250.) Consistent with these remarks, the SVPA 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. [Citations.]” (Hubbart, supra, 19 Cal.4th at p. 1171.) Although the Legislature also expressed concern over the harm inflicted by sexually violent predators, the Hubbart court concluded that “the legislative record as a whole” (id. at p. 1172) indicated that the Legislature “intended a nonpenal ‘civil commitment scheme designed to protect the public from harm.’ [Citation.]” (Ibid., quoting Hendricks, supra, 521 U.S. at p. 361.)
In this case, Cheek does not specifically identify anything in the legislative history of Senate Bill 1128, or in Proposition 83, suggesting that the Legislature or voters intended the 2006 amendments to change the SVPA from a nonpenal civil commitment scheme to a punitive scheme.
Cheek also fails to provide “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’ [Citation.]” (Hendricks, supra, 521 U.S. at p. 361.) In contending that the amended SVPA is punitive in purpose, he generally asserts that “both measures,” which we assume to mean Senate Bill 1128 and Proposition 83, “(1) increased penalties for violent and habitual sex offenders and child molesters; (2) lengthened periods of parole; and (3) expanded the definition of a sexually violent predator.” As for the first two changes asserted by Cheek, we assume he is referring to amendments other than to the SVPA. We do not agree with Cheek that changes to other statutory provisions outside of the SVPA would transform the SVPA into a punitive statutory scheme. As for the “expanded definition of a sexually violent predator,” Cheek does not specify what definitional change he is referring to,[9] nor otherwise explain how a change in the definition makes the statute punitive in purpose or effect.
Cheek also asserts that an indeterminate term of commitment is “excessive” because a “mental disorder is not necessarily a permanent condition.”
We do not agree that the indeterminate term of commitment is excessive in view of the procedures for release set forth in the amended SVPA. “[T]he confinement of ‘mentally unstable individuals who present a danger to the public’ [is] one classic example of nonpunitive detention. [Citation.]” (Hendricks, supra, 521 U.S. at p. 363.) “[T]he critical factor is whether the duration of confinement is ‘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.’ ” (Hubbart, supra, 19 Cal.4th at p. 1176, quoting Hendricks, supra, 521 U.S. at p. 363.) As we have explained, the amended SVPA sets forth procedures, including those specified in sections 6605 and 6608, to release the committed person where the person’s condition no longer meets the criteria for commitment. Thus, we believe that “[f]ar 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. Cf. Jones, [supra,] 463 U.S. at [p.] 368 (noting with approval that ‘because it is impossible to predict how long it will take for any given individual to recover [from insanity] – or indeed whether he will ever recover – Congress has chosen . . . to leave the length of commitment indeterminate, subject to periodic review of the patient’s suitability for release’.” (Hendricks, supra, 521 U.S. at pp. 363-364.)
Cheek further contends that the behavior “trigger[ing] application of the SVPA – both past conduct a