Opinion
As Modified on Denial of Rehearing Oct. 2, 1997.
Opinion on pages 739-754 omitted.
REVIEW GRANTED [*]
Review Granted Dec. 23, 1997.
Previously published at 57 Cal.App.4th 1505A [Copyrighted Material Omitted]
[67 Cal.Rptr.2d 284] Daniel E. Lungren, Attorney General, George H. Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Seth K. Schalit, Deputy Attorney General, for plaintiff and respondent.
David L. Hoffman, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant.
[67 Cal.Rptr.2d 285]JONES, Associate Justice.
George Ben Putney (appellant) appeals the trial court's judgment, rendered after a bench trial, committing him to the custody of the State Department of Mental Health for two years under California's Sexually Violent Predator Act (Act or California Act) (Welf. & Inst.Code, § 6600 et seq.). Appellant raises two broad issues on appeal: (1) that the Act violates the state and federal constitutional prohibitions against ex post facto laws; and (2) that substantial evidence does not support the trial court's finding that appellant is a sexually violent predator. We reject both contentions and affirm the trial court's judgment.
All further statutory references are to the Welfare and Institutions Code except where otherwise indicated.
BACKGROUND
On January 12, 1967, appellant was convicted of two counts of rape accomplished by threat of great bodily harm under the predecessor to what is now Penal Code section 261, subdivision (a)(2). Appellant received two consecutive indeterminate sentences for these convictions. On March 19, 1976, while on parole from his previous convictions, appellant was again convicted of rape accomplished by threat of great bodily harm. He also was convicted of forcible oral copulation under Penal Code section 288, subdivision (a). Appellant received concurrent indeterminate sentences for these convictions. On August 17, 1982, appellant was convicted of one count of forcible sodomy in violation of Penal Code section 286, subdivision (c). Appellant received a sentence of eight years plus a consecutive five-year enhancement for a felony prior. The court stayed imposition of an additional one-year felony enhancement.
On June 11, 1996, the Sonoma County District Attorney filed a petition for commitment against appellant in the Sonoma County Superior Court under the Act. The court found probable cause to believe that appellant was likely to engage in sexually violent predatory criminal behavior upon his release from prison, and remanded appellant to the State Department of Mental Health pending a trial on the district attorney's petition.
Appellant, represented by the public defender, thereafter filed a motion to declare the Act unconstitutional on the ground it violates the ex post facto clauses of the state and federal constitutions. The trial court denied the motion.
A court trial was held on October 3, 1996. The court found that appellant is a sexually violent predator who has committed sexually violent crimes, that defendant has been diagnosed with a mental disorder making him a danger to others, and that he is likely to engage in sexually violent criminal behavior upon his release from prison. The court thereupon granted the district attorney's petition and committed appellant to the custody of the State Department of Mental Health for two years. DISCUSSION
I. A Brief Synopsis Of The Act
In 1995, the California Legislature passed the Act into law. The Legislature stated in the uncodified statement of purpose clause: "The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society. [p] The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing [67 Cal.Rptr.2d 286] threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1, No. 10 West's Cal. Legis. Service, p. 4611.)
As originally enacted, the Act defined a "sexually violent predator" as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) The Legislature amended this definition effective September 13, 1996, to add that for purposes of subdivision (a) "a conviction prior to July 1, 1977, for an offense described in subdivision (b), ... shall also be deemed a sexually violent offense even if the offender did not receive a determinate sentence for that prior offense." (§ 6600, subd. (a).)
"Sexually violent offense" is defined as certain enumerated acts "when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ...." (§ 6600, subd. (b).) The Act defines a "diagnosed mental disorder" as including "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)
The Act generally requires the Director of the Department of Corrections to refer a suspected predator for screening and a psychiatric evaluation at least six months prior to the person's scheduled release date. (§ 6601, subds. (a) & (b).) The evaluation must be performed by two practicing psychiatrists or psychologists designated by the Director of the Department of Mental Health. (§ 6601, subd. (d).) "If both evaluators concur that the person has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for a petition for commitment" to the county in which the person was convicted. (§ 6601, subds. (d) & (i).) Copies of the evaluation reports and other documentation are made available to the district attorney or county counsel. (§ 6601, subds. (d) & (i).) If the county's attorney concurs with the recommendation, a petition for commitment is filed in superior court. (§ 6601, subd. (i).)
Under certain circumstances the screening process may be commenced less than six months before a person's release date. (§ 6601, subd. (a).)
Upon the filing of the petition, the superior court determines whether there is "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602.) The alleged predator is entitled to assistance of counsel at the probable cause hearing. (§ 6602.) If the court determines there is no probable cause, the court must dismiss the petition and any prisoner subject to parole shall duly report to parole. (§ 6602.) If, however, the court finds probable cause, the court must set a trial on the question of "whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release" from prison. (§ 6602.)
At trial, the alleged predator has the right to a jury, to assistance of counsel, to retain experts, to access all relevant medical and psychological records and reports, and to appointed counsel if indigent. (§ 6603, subd. (a).) "The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." (§ 6604.) If there is reasonable doubt that the prisoner is a sexually violent predator, he or she is released from prison at the expiration of his or her term. (§ 6604.) If it is determined, however, that the prisoner is a predator, he or she is committed to the custody of the State Department of Mental Health for two [67 Cal.Rptr.2d 287] years, subject to an annual review and extension of the commitment if the diagnosed mental disorder and consequent danger to society persists. (§§ 6604 & 6605.)
The committed predator has the right to treatment and the right to petition for a conditional release. (§§ 6606, subd. (a) & 6608.) However, amenability to treatment is not a prerequisite to a finding that a person is a sexually violent predator; nor is it required for treatment of that person. (§ 6606, subd. (b).) In addition, there is no requirement that treatment be successful. (§ 6606, subd. (b).)
II. Sufficiency Of The Evidence Argument
We address first appellant's contention that substantial evidence does not support the trial court's judgment that he is a sexually violent predator as defined in the Act because, although couched as an attack on the sufficiency of the evidence, appellant's argument in reality raises solely a legal question of whether the Act applies in this case.
The original version of the Act defined a "sexually violent offense" as one that resulted in a conviction and determinate sentence. (§ 6600, subds. (a) & (b), as enacted Oct. 11, 1995, italics added.) In 1996, the Legislature amended the Act to delete the determinate sentence requirement from the definition of "sexually violent offense" and to add the proviso to the definition of "sexually violent predator" that a conviction prior to July 1, 1977, for a sexually violent offense need not have resulted in a determinate sentence. (§ 6600, subds. (a) & (b), as amended Sept. 13, 1996; Stats.1996, ch. 462, § 4, No. 8 West's Cal. Legis. Service, pp. 2338-2339.)
Appellant does not dispute that his prior convictions are for offenses listed in section 6600, subdivision (b). Rather, he contends his commitment proceeding was initiated on June 10, 1996, prior to the effective date of the 1996 amendments, and that the amended definitions of "sexually violent predator" and "sexually violent offense" may not be applied retroactively to support his commitment as a sexually violent predator. Appellant contends respondent must prove beyond a reasonable doubt that his prior convictions resulted in determinate sentences. He argues that because only one of his "sexually violent offenses" resulted in a determinate sentence, respondent failed to submit evidence sufficient to satisfy this evidentiary burden. Appellant does not challenge the sufficiency of the evidence to support the trial court's judgment under the amended version of the Act. We agree with appellant that "a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434, citations omitted.) We do not agree, however, that the 1996 amendments to the Act were given retroactive application in this case.
It appears from the record that appellant did not raise this issue in the trial court. Generally, parties may not raise an issue for the first time on appeal. (Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.) There is an exception, however, that an issue not raised at trial may be raised for the first time on appeal if it involves "purely a legal question which rests on an uncontroverted record which could not have been altered by the presentation of additional evidence." (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501, 257 Cal.Rptr. 397, citations omitted.) The exception is applicable here. Therefore, we will consider the question raised by appellant.
"A retroactive statute is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute." (Russell v. Superior Court (1986) 185 Cal.App.3d 810, 814, 230 Cal.Rptr. 102, internal quotation marks omitted.) The chief problem with appellant's argument is it presupposes that he acquired a vested right in the commitment scheme in existence at the time respondent filed the petition for appellant's commitment. This is simply incorrect. (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 183-184, 167 Cal.Rptr. 854, 616 P.2d 836 ["[D]angerous[ly] mentally ill persons gain no perpetual 'vested [67 Cal.Rptr.2d 288] right' in the commitment scheme extant when their illnesses first came to public attention.... Such a rule would severely hamper legislative efforts to respond to new knowledge about mental illness, correct perceived deficiencies in the statutory scheme, and refine the state's machinery for treatment and restraint of dangerously disturbed people."].) Thus, application of the 1996 amendments here did not deprive appellant of any vested right.
To the extent appellant's contention can be read as suggesting that he has a vested right in being released from prison on his scheduled release date, we note that "[a] prison inmate has no vested right in his prospective liberty on a parole release date." (In re Powell (1988) 45 Cal.3d 894, 903, 248 Cal.Rptr. 431, 755 P.2d 881.)
For this reason, we conclude that appellant's claim that the trial court gave the 1996 amendments retroactive application lacks merit, and, consequently, that the trial court's judgment is supported by substantial evidence in the record. III. The Act Is Not An Ex Post Facto Law And Therefore Does Not Violate The State Or Federal Constitutional Prohibitions Against Such Laws
Having determined that the Act, as amended, applies to appellant's commitment proceeding, we address appellant's contention that the Act is unconstitutional because it violates state and federal constitutional prohibitions against the passing of ex post facto laws. (U.S. Const., art. I, § 9; Cal. Const., art. I, § 9.) We conclude this contention lacks merit.
An ex post facto law is one " 'which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed....' " (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, quoting Beazell v. Ohio (1925) 269 U.S. 167, 169-170, 46 S.Ct. 68, 68, 70 L.Ed. 216.) " '[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.' " (People v. Mesce (1997) 52 Cal.App.4th 618, 623, 60 Cal.Rptr.2d 745, quoting Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17.)
Appellant asserts a number of ostensibly different reasons why the Act is an ex post facto law. He contends the Act impermissibly lengthens the period of incarceration for his crimes, that the Act is criminal and substantive in nature, that it operates retrospectively, and that its purpose is primarily penal. In our view, the overriding theme of all these arguments is that the Act is an ex post facto law because it is a criminal statute that operates retrospectively.
In Kansas v. Hendricks, --- U.S. ----, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Hendricks ), the United States Supreme Court addressed the question of whether Kansas' Sexually Violent Predator Act (Kan. Stat. Ann. § 59-29a01 et seq.) violates the federal constitutional prohibition against ex post facto laws, and ultimately held that the Kansas Act is not an ex post facto law.
The Supreme Court (the Court) observed that the intent of the Kansas Legislature was to create a civil commitment procedure for sexually violent predators. (Kansas v. Hendricks, supra, --- U.S. at pp. ----- - ----, 117 S.Ct. at pp. 2081-2083.) This objective was evidenced by the placement of the Kansas Act within the Kansas probate code instead of the criminal code, and by its description as creating a civil commitment procedure. (Ibid.) The Court recognized that the label of "civil" is not always dispositive, but stated it would not reject the Legislature's "manifest intent" absent the "clearest proof" that the Kansas Act is so punitive in purpose or effect as to negate that intent. (Ibid., citing Allen v. Illinois (1986) 478 U.S. 364, 369, 106 S.Ct. 2988, 2992, 92 L.Ed.2d 296.) According to the Court, the appellant in Hendricks failed to satisfy this "heavy [67 Cal.Rptr.2d 289] burden." (Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2081-2083.)
The Court held that the Kansas Act does "not implicate either of the two primary objectives of criminal punishment: retribution or deterrence." (Kansas v. Hendricks, supra, --- U.S. at p. ----, 117 S.Ct. at p. 2082.) The purpose of the Kansas Act is not retributive "because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a 'mental abnormality' exists or to support a finding of future dangerousness." (Ibid.; see also id. at p. ----, 117 S.Ct. at p. 2091, Breyer, J., dissenting ["The [Kansas] Act's insistence upon a prior crime, by screening out those whose past behavior does not concretely demonstrate the existence of a mental problem or potential future danger, may serve an important noncriminal evidentiary purpose."].) Also, the Kansas Act "does not make a criminal conviction a prerequisite for commitment--persons absolved of criminal responsibility may nonetheless be subject to confinement under the [Kansas] Act." (Id. at p. ----, 117 S.Ct. at p. 2082.) The Court also held that the Kansas Legislature did not intend the Kansas Act to function as a deterrent because "[t]hose persons committed under the [Kansas] Act are, by definition, suffering from a 'mental abnormality' or a 'personality disorder' that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of confinement. And the conditions surrounding that confinement do not suggest a punitive purpose on the State's part." (Ibid.)
The Court's reasoning is applicable to the California Act as well. The legislative intent behind the California Act is to create a civil commitment proceeding for sexually violent predators. (See Stats.1995, ch. 763, § 1, No. 10 West's Cal. Legis. Service, p. 4611; §§ 6600-6606.) We note the Act is part of the Welfare and Institutions Code instead of the Penal Code. The Act expressly provides that "[c]onviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination." (§ 6600, subd. (a), italics added.) The Act further provides that, at trial, "[j]urors shall be admonished that they may not find a person [is] a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) Thus, the Act does not impose punishment for prior offenses, but instead treats prior offenses as evidence that a person is a sexually violent predator.
Section 6600, subdivision (b) defines a "sexually violent offense" as "the following acts when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ... a felony violation of paragraph (2) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262, Section 264.1, subdivision (a) or (b) of Section 288, or subdivision (a) of Section 289 of the Penal Code, or sodomy or oral copulation in violation of Section 286 or 288a of the Penal Code." (§ 6600, subd. (b).)
In addition, similar to the Kansas Act, the California Act does not make a prior conviction a prerequisite for commitment. The definition of "sexually violent predator" specifically provides that "a prior finding of not guilty by reason of insanity" for one of the enumerated offenses "shall also be deemed to be a sexually violent offense ...." (§ 6600, subd. (a).) Thus, a person absolved of criminal responsibility may nonetheless be subject to commitment under the Act.
This brings within the scope of the Act those persons who successfully asserted a defense of not guilty by reason of insanity prior to enactment of Penal Code sections 28 and 29 and Proposition 8 in 1981. Except for such cases, it appears that a prior conviction is a prerequisite to finding that a person is a sexually violent predator.
Furthermore, based on the Act's definitions of "sexually violent predator" and "diagnosed mental disorder," we find persuasive the Court's reasoning that a person falling [67 Cal.Rptr.2d 290] within the predator definition would not be deterred by the threat of confinement.
Appellant contends the California Act is punitive because its declared purpose is to protect society, and it does not require that a predator be amenable to treatment. The Court specifically rejected an identical challenge to the Kansas Act. (Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2083-2086.) The Court observed that "under the appropriate circumstances and when accompanied by proper procedures, incapacitation may be a legitimate end of the civil law" (id. at p. ----, 117 S.Ct. at 2084, citing Allen v. Illinois, supra, 478 U.S. at p. 373, 106 S.Ct. at 2994), and that it had "never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others" (ibid.). The Court stated: "A State could hardly be seen as furthering a 'punitive' purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease. [Citation.] Similarly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions. [Citations.]" (Kansas v. Hendricks, supra, at p. ----, 117 S.Ct. at p. 2084.)
We note that Justice Breyer, in dissent, acknowledged that a state may enact a civil commitment scheme for dangerous, mentally ill persons without necessarily violating the federal constitution, and that such a scheme may retain its "civil" nature despite having certain resemblances to criminal proceedings. (Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2087-2093.)
Thus, the Legislature's declaration that the protection of society is a primary purpose of the California Act does not necessarily lead to the conclusion that the Act is penal. Moreover, we find further support for our conclusion that the Act is not penal from the Court's observation that an ancillary purpose of the Kansas Act is treatment of the persons identified as sexual predators. (Kansas v. Hendricks, supra, --- U.S. at p. ---- - ----, 117 S.Ct. at pp. 2084-2086.) The California Legislature's statement of purpose clearly indicates that treatment is at least an ancillary purpose of the Act. (Stats.1995, ch. 763, § 1, No. 10 West's Cal. Legis. Service, p. 4611.)
Appellant cites as authority for his position the case of People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373, in which the California Supreme Court held that a civil commitment scheme that did not provide for adequate and effective treatment was unconstitutional. Feagley is distinguishable on its facts, however. That case involved a civil commitment of a mentally disordered sex offender who was found to be unamenable to treatment. (Id. at pp. 343-344, 121 Cal.Rptr. 509, 535 P.2d 373.) The offender was confined as part of the general prison population, and no treatment or therapy was even available. (Id. at p. 364, 121 Cal.Rptr. 509, 535 P.2d 373.) In contrast, while the Act provides that committed persons be kept in a secured facility, there is no indication that such persons are to be confined as part of the general prison population. (§ 6604.) Moreover, the Act mandates treatment for committed persons, whether they are amenable to treatment or not. (§ 6606.)
We also disagree with appellant's argument that the Act is penal because it subjects persons deemed to be sexually violent predators to confinement of potentially indefinite duration. The duration of any particular predator's confinement under the Act is linked to the Act's purpose of holding the predator only until he or she is no longer a threat to society. (Stats.1995, ch. 763, § 1, No. 10 West's Cal. Legis. Service, p. 4611; § 6605.) The Act requires persons determined to be sexually violent predators to be examined on an annual basis. (§ 6605, subd. (a).) Unless the committed person affirmatively waives his or her right to petition the [67 Cal.Rptr.2d 291] court for a conditional release under section 6608, the court is required to set a show cause hearing to determine whether to hold a further hearing on the question of whether the committed person's condition has changed such that he or she is no longer a threat to society. (§ 6605, subd. (b).) If the court determines the further hearing is warranted, then the State, if it seeks to maintain the committed person in confinement, must prove beyond a reasonable doubt that the person is a danger to others and is likely to engage in sexually violent criminal behavior if released. (§ 6605, subd. (d).) If the committed person obtains a favorable decision, he or she "shall be unconditionally released and unconditionally discharged." (§ 6605, subd. (e).) In addition, the State Department of Mental Health can itself seek judicial review of a person's commitment if it has reason to believe that the committed person is no longer a sexually violent predator. (§ 6605, subd. (f).)
We thus believe, as the Court did in Hendricks, that the length of a person's confinement under the Act is only potentially infinite, and that the statutory scheme demonstrates the Legislature's intent to confine sexually violent predators for only as long as they remain predators. (See Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2083-2084.)
A similar scheme is employed in the case of persons who plead and are found not guilty by reason of insanity and who are committed to a state mental hospital under Penal Code section 1026. Penal Code section 1026.2 provides that an insanity acquittee must be released when his or her sanity is restored. (Pen.Code, § 1026.2, subd. (a).) Penal Code section 1026.5, subdivision (a) provides that the length of an insanity acquittee's confinement in actual custody may not exceed the maximum determinate term which could be imposed for the offenses of which he or she has been convicted. (Pen.Code, § 1026.5, subds. (a)(1) & (2); see People v. Wilder (1995) 33 Cal.App.4th 90, 98, 39 Cal.Rptr.2d 247.) At the end of the maximum confinement period, however, the district attorney may petition the court to extend the commitment if the insanity acquittee "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (Pen.Code, § 1026.5, subd. (b)(1).) The acquittee is entitled to a jury trial on the petition and representation by an attorney. (Pen.Code, § 1026.5, subd. (b)(3).) If the court or jury finds that further commitment is warranted, the extension of commitment is limited to two years, "unless another extension of commitment is obtained in accordance with the provisions of [Penal Code section 1026.5, subdivision (b) ]." (Pen.Code, § 1026.5, subd. (b)(8); People v. Wilder, supra, 33 Cal.App.4th at p. 98, 39 Cal.Rptr.2d 247.) In Wilder, the court rejected an insanity acquittee's argument that Penal Code section 1026.5 violated his due process rights because the insanity standard for an extension of commitment is less stringent than the legal insanity standard under Penal Code section 25, subdivision (b). (People v. Wilder, supra, 33 Cal.App.4th at pp. 98-102, 39 Cal.Rptr.2d 247.)
We reject appellant's attempt to distinguish the California Act from the Kansas Act on the ground the California Act creates greater obstacles to a committed person's release. This is not so. Both acts provide for an annual review of the committed person's mental condition. As part of that review, both acts provide for a show cause hearing at which the court determines whether there is probable cause to believe the committed person's condition has so changed that the person is no longer a danger to society. Under both acts, if the court determines that probable cause exists, the matter is set for a further hearing at which the state, if it seeks continued confinement of the committed person, must prove beyond a reasonable doubt that the person's mental disorder remains such that he or she is still a danger to society. (See § 6605; Kan. Stat. Ann. § 59-29a08.) Moreover, the California Act allows the court to consider less restrictive alternatives to actual confinement while the Kansas Act does not. (See §§ 6607 & 6608; Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2094-2096, Breyer, J., dissenting.)
Appellant correctly observes that the California Act, unlike the Kansas Act, provides that if the committed person receives an unfavorable ruling, a new two-year term of confinement commences. (§ 6605, subd. (e).) This is merely a result, however, of the fact that the California Act provides for a two-year confinement period while the Kansas [67 Cal.Rptr.2d 292] Act provides for only a one-year confinement period. Under the California Act, the committed person is still entitled to an annual review even after receiving an unfavorable ruling.
We also reject appellant's argument that persons committed under the California Act are subject to penal conditions of confinement, whereas there was no evidence in Hendricks that such conditions were imposed on Kansas prisoners. Appellant cites no evidence to support his contention. Moreover, the Kansas Act and the California Act do not differ significantly with respect to the conditions under which committed persons are confined. The Kansas Act commits persons to the custody of the department of social and rehabilitation services, which may enter into an interagency agreement with the department of corrections for confinement of those persons. (Kan.Stat.Ann. § 59-29a07.) The California Act is similar in that a person found to be a sexually violent predator is committed to the custody of the Department of Mental Health. The only difference is that under the California Act the confinement facility must be located "on the grounds of an institution under the jurisdiction of the Department of Corrections." (§ 6604.)
In his supplemental brief, appellant contends the Supreme Court in Hendricks relied too heavily on the Kansas Legislature's declared intent in determining that the Kansas Act is civil in nature. He contends the proper analysis focuses on the actual consequences of the challenged statute, citing Lynce v. Mathis (1997) 519 U.S. ----, 117 S.Ct. 891, 137 L.Ed.2d 63 and Weaver v. Graham, supra, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17. He contends that by requiring the petitioner to show the "clearest proof" that the Kansas Act was punitive, the Supreme Court invested the Kansas legislation with a "remarkable immunity." We disagree. Although the Court placed a heavy burden on the petitioner to overcome the Legislature's stated intent, the burden was to show that the Kansas Act was punitive "either in purpose or effect." (Kansas v. Hendricks, supra, --- U.S. at p. ----, 117 S.Ct. at p. 2082, italics added.) The Court's discussion of the manner in which the Kansas Act operates clearly addresses arguments, presumably made by the petitioner, that the Kansas Act is punitive in effect. (See Kansas v. Hendricks, supra, --- U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2081-2086.) Moreover, in this case we have addressed appellant's arguments regarding the effect of the California Act.
Because briefing in this appeal was completed prior to the Supreme Court's decision in Hendricks, we requested supplemental letter briefs from the parties expressing their views as to how the Court's analysis in Hendricks affects the ex post facto issues in this case.
Finally, appellant observes that the Supreme Court in Hendricks only addressed the question of whether the Kansas Act violated the federal constitutional prohibition against ex post facto laws. He contends his ex post facto challenge to the California Act is brought under the ex post facto clauses of both the federal and California constitutions, and that this court is not required to follow the Supreme Court's decision with respect to the California constitution. We agree with appellant that we are not bound to adhere to the Supreme Court's opinion in Hendricks. (Tapia v. Superior Court, supra, 53 Cal.3d at p. 295, 279 Cal.Rptr. 592, 807 P.2d 434 ["we unquestionably have the power to interpret a provision of the state Constitution differently than its federal counterpart (Cal. Const., art. I, § 24)"].) The California courts nonetheless have a lengthy tradition of interpreting the state constitution's ex post facto clause consistently with its federal counterpart. (See People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955; People v. Bunn (1997) 53 Cal.App.4th 227, 230, fn. 3, 61 Cal.Rptr.2d 734; Tapia v. Superior Court, supra, 53 Cal.3d at pp. 295-296, 279 Cal.Rptr. 592, 807 P.2d 434.) Appellant's arguments do not convince us that in this case we should depart from the Supreme Court's interpretation.
At the conclusion of its ex post facto analysis, the Supreme Court stated: "Where the State has 'disavowed any punitive intent'; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the [67 Cal.Rptr.2d 293] general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent." (Kansas v. Hendricks, supra, --- U.S. at p. ----, 117 S.Ct. at p. 2085.) Because all these factors are substantially present in the California Act, we hold that the Act does not abridge the state and federal constitutional prohibitions against ex post facto laws.
In his supplemental brief, appellant requested permission to raise for the first time on appeal an equal protection challenge to the Act. Appellant did not attempt to explain why he did not raise that issue in either his opening or reply briefs, nor do we see any reason for that failure. We therefore deny his request.
DISPOSITION
The judgment is affirmed.
PETERSON, P.J., and HANING, J., concur.
[*] Reprinted without change in the Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.
Feagley also does not address the situation described by the Court in Hendricks, namely, the possibility that a predator is simply not amenable to treatment. As Chief Justice Burger wrote in his concurring opinion in O'Connor v. Donaldson (1975) 422 U.S. 563, 588-589, 95 S.Ct. 2486, 2500, 45 L.Ed.2d 396, "[g]iven the present state of medical knowledge regarding abnormal human behavior and its treatment, few things would be more fraught with peril than to irrevocably condition a State's power to protect the mentally ill upon the providing of such treatment as will give [them] a realistic opportunity to be cured."
We further note that an ex post facto challenge to another similar civil commitment scheme, the Mentally Disordered Offender Law, Penal Code section 2960 et seq., has also been rejected. (People v. Superior Court (Myers ) (1996) 50 Cal.App.4th 826, 58 Cal.Rptr.2d 32.)