PEOPLE v. [And six other cases.] *

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Matthew Harvey HEDGE, Defendant and Respondent. [And six other cases.] *

No. D026713.

Decided: July 22, 1997

Paul J. Pfingst, District Attorney;  Thomas F. McArdle and Craig E. Fisher, Deputy District Attorney, for Plaintiff and Appellant. Martin Nebrida Buchanan, San Diego, Laurel Nelson, Escondido, Melody Harris, Michael Sideman, Athena Shudde, Kerry L. Steigerwalt, San Diego, and J. Thomas Bowden, Goleta, under appointments by the Court of Appeal, for Defendants and Respondents.

In these consolidated appeals, we determine the trial court erred in ruling on demurrer that the Sexually Violent Predators Act (the Act) (Welf. & Inst.Code, § 6600 et seq.) 1 is both unconstitutional on its face and as applied to each of the seven defendants.   After careful review of the Act in light of its legislative history and the recent United States Supreme Court's decision in Kansas v. Hendricks (Hendricks ) (1997) 521U.S. ----, 117 S.Ct. 2072, 138 L.Ed.2d 501, we find the Act satisfies federal substantive due process and does not violate the constitutional guarantees of equal protection or against ex post facto laws and double jeopardy.   Because we so hold, we conclude the trial court erred in sustaining without leave the defendants' demurrers to the petitions filed for their respective commitments under the Act. The judgments entered dismissing the petitions upon the sustaining of the demurrers must therefore be reversed.

SUMMARY OF THE ACT

The Act, contained in sections 6600 through 6608, was enacted October 11, 1995, effective January 1, 1996.  (Stats.1995, chs.762, § 3, 763, § 3.) The Act's uncodified purpose clause states:

“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.  [¶] 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 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.)

The Act defines a “[s]exually violent predator[ (SVP) ]” 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).)  Subdivision (b) of section 6600 lists the qualifying sexually violent offenses for purposes of the Act.2 Although a “diagnosed mental disorder” is not fully defined under the Act, such condition is stated to “include[ ] 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).)

Under section 6601, if the director of the Department of Corrections (DOC) determines that a prisoner may be an SVP, the director must refer the prisoner for an initial screening, which includes evaluation by two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol, commenced at least six months before the prisoner's scheduled release date. (§ 6601, subds.(a), (b), (c) & (d).) 3  If both evaluators conclude that the prisoner “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 the Department of Mental Health (DMH) transmits a request for a petition for commitment under the Act, with copies of the evaluation reports and other supporting documents, to the county in which the prisoner was last convicted. (§ 6601, subds.(d), (h) & (i).)   If the designated county's attorney concurs in the request, a petition for commitment is filed in that county's superior court. (§ 6601, subd. (i).)

Once filed, the superior court is required to hold a probable cause hearing at which the individual named in the petition is entitled to assistance of counsel. (§ 6602.)   If the court determines there is probable cause to believe that the person is likely to engage in sexually violent predatory 4 criminal behavior upon his or her release from prison, the judge “shall” order that a trial be conducted “to determine 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․”  (§ 6602.)   If, however, the court finds no probable cause, the court must dismiss the petition and have the prisoner report to parole. (§ 6602.)

The person subject to a trial under the Act is to remain in custody in a secure facility until the trial is completed. (§ 6602.)   That person is entitled to trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform further evaluations, and access to relevant medical and psychological reports. (§ 6603, subd. (a).)  The court, if jury is waived, or the jury, by unanimous verdict, must determine beyond a reasonable doubt whether the person named in the petition is in fact an SVP. (§ 6604.)   If there is any reasonable doubt, the person is released at the expiration of his or her prison term. (§ 6604.)   If the person is determined to be an SVP, he or she shall be committed to the custody of the DMH for two years “for appropriate treatment and confinement in a secure facility ․,” subject to annual review and extension of commitment if the diagnosed mental disorder and the consequent danger to the community persists. (§§ 6604, 6605.)

The committed SVP is entitled to the appointment of an expert and to review all records for the annual review and, unless waived, is entitled to a show cause hearing in the superior court to determine his or her condition has so changed that he or she would not be a danger to the health and safety of others if released from confinement. (§ 6605, subds.(a) & (b).)   If the court so finds, the SVP is entitled to a full trial at that time with the same rights and constitutional protections as were afforded at the initial commitment proceedings. (§ 6605, subd. (d).)  If the trier of fact rules against the SVP, then the period of confinement shall run for a period of not more than two years from the date of the new ruling. (§ 6605, subd. (e).)  If the ruling is in favor of the SVP, he or she is immediately unconditionally discharged. (§ 6605, subd. (e).)  If at any time the DMH has reason to believe the committed person is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).)

Further, the committed SVP can be placed on conditional release upon a finding he or she is not likely to engage in sexually violent predatory criminal acts while under community supervision and treatment. (§ 6607.)   Anytime after a year from the initial commitment order, the SVP may petition for conditional relief and the director of DMH may recommend such release. (§ 6608.)

Finally, the committed SVP must be provided treatment for his or her diagnosed mental disorder, whether or not it is found the SVP is amenable to treatment. (§ 6606, subds.(a) & (b).)   The right to such treatment does not mean it must be potentially successful, but that it “shall be consistent with current institutional standards for the treatment of sex offenders ․” (§ 6606, subds.(b) & (c).)

PROCEDURAL BACKGROUND AND FACTS

In each of the cases now before us, the defendant was evaluated pursuant to section 6601 as a potential SVP, and a petition for his commitment was filed in San Diego Superior Court.   Each defendant demurred to the petition on the ground it failed to state a cause of action because the Act was unconstitutional on its face and as applied to him.   Each specifically claimed the Act violated substantive due process, equal protection, and the guarantees against ex post facto laws and double jeopardy.   The court sustained the respective demurrers, ruling the Act unconstitutional.   In a “Memorandum Decision,” the court set forth in detail its reasons for finding the Act “both facially and as applied to [defendants]” violative of the due process clause of the United States Constitution and of the state and federal prohibitions against ex post facto laws and double jeopardy, dismissed the respective petitions, and released each defendant on parole.   The court in essence found the Act failed to constitutionally define qualifying “mental disorders” to satisfy due process and that the Act was essentially a punitive consequence of each defendant's prior convictions, not a “civil” commitment procedure, thereby rendering its application to each defendant a prohibited ex post facto law and a violation of double jeopardy.

The People timely appealed from the dismissals and requested, with the concurrence of defense counsel, we consolidate the seven cases for briefing purposes, designating the case of People v. Matthew Harvey Hedge (Hedge ), case No. D026713, as the lead case and deferring briefing on the remaining six cases.   Because each case involves the same constitutional issues in essentially the same procedural and factual contexts,5 we granted the motion to consolidate the pending appeals, deferring briefing on all but the Hedge case until further order of this court.

On our own motion, we expedited the appeal, setting forth a briefing schedule and noting argument would be heard on the first available calendar after such briefing was complete.   After the opening brief and respondent's brief in Hedge were filed, we invited the parties on the other cases to bring to our attention by way of a respondent's letter brief any new argument or new material that they believed we should consider.   None was filed.

Pending the set argument date, the United States Supreme Court filed its opinion in Hendricks, which upheld the constitutionality of Kansas's Sexually Violent Predator Act, an act similar to ours.   We thus invited counsel on all cases to file simultaneous letter briefs discussing counsel's views of the impact of Hendricks on the pending appeals.   We have considered these letter briefs along with those originally filed and argument of counsel in our analysis of the constitutional issues raised in these consolidated cases.

DISCUSSION

Before turning to our discussion, we clarify several matters.

 Preliminarily, we note that Hedge 6 objects to the People's right to review the dismissal of his petition by appeal, arguing such right in a criminal case is limited by Penal Code section 1238 to an order setting aside an indictment, information, or complaint, none of which is applicable because the pleading here was by petition.   Because we conclude in our analysis below that the instant proceedings are “civil,” not punitive, based on the Legislature's intent and purpose and effect of the Act (see United States v. Ward (1980) 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742), we find the court's order dismissing Hedge's petition is a final judgment from which the People have the right to appeal under Code of Civil Procedure section 904.1, subdivision (a)(1).  (See People v. Superior Court (Myers) 50 Cal.App.4th 826, 833-834, 58 Cal.Rptr.2d 32.)

Next, it must be remembered the trial court's ruling on the petition to commit Hedge under the Act was made on demurrer before the probable cause hearing.   At such procedural stage, the court was required to assume the truth of the facts pleaded, and only to consider whether those facts stated a cause of action on which relief could be granted.7  (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824;  see generally Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 1997) §§ 7:39 & 44, pp. 7-16, 7-18.1.) The court thus could only sustain Hedge's demurrer without leave if it found fatal defects appearing on the face of the pleading, or if such defects were identified by taking judicial notice of facts outside the petition.  (See, e.g., Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

 Further, a facial attack on the constitutionality of a legislative act made on demurrer considers only the text of the statute or act and not its application to the particular circumstances of an individual.   (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)   Only if it is shown that there is no set of circumstances existing under which the legislation or act would be valid will a facial challenge be successful.  (United States v. Salerno (1987) 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697.)   Hence, having sustained without leave Hedge's demurrer, the court effectively found the Act is facially unconstitutional not only as to Hedge, but as to all offenders whose crimes preceded enactment of the Act. The court's ruling also necessarily found any commitment under the Act is always punitive, prohibited additional or double punishment, and that such commitment could in no case be permitted for the protection of society and the treatment of a qualifying offender for a present mental disorder.8

 Mindful of the narrow procedural juncture at which this matter comes before us, we now turn to the People's contentions the trial court erred by accepting Hedge's constitutional challenges to the Act. When reviewing each argument that questions the affirmance of a constitutional challenge to a legislative enactment, such as the Act, “ ․ it is our duty to uphold [the] statute unless its unconstitutionality clearly, positively, and unmistakably appears;  all presumptions and intendments favor its validity.”  (Mills v. Superior Court (1986) 42 Cal.3d 951, 957, 232 Cal.Rptr. 141, 728 P.2d 211.)   We “resolv[e] all doubts in favor of the Act.” (California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594, 131 Cal.Rptr. 361, 551 P.2d 1193.)   It is particularly appropriate we accord the presumption of constitutionality to legislative acts “when the Legislature[, as evidenced here by the earlier quoted purpose clause of the Act,] has enacted a statute with the relevant constitutional prescriptions clearly in mind.  [Citation.]   In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision.”  (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215.)

I

Ex Post Facto

 The People first assert the trial court erred in concluding the Act was an ex post facto law.   We agree.

 The ex post facto clauses of the United States and California Constitutions prohibit retroactive application of penal statutes and are interpreted identically.  (U.S. Const., art.   I, § 10, cl. 1;  Cal. Const., art.   I, § 9;  People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955;  Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-297, 279 Cal.Rptr. 592, 807 P.2d 434.)   A legislative act violates the ex post facto prohibition if it is a criminal or penal law which makes more burdensome the punishment for a crime after its commission.  (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30;  People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)

As the court in Hendricks recognized, the crux of the ex post facto challenge to the Kansas Act in that case was whether it established criminal or civil proceedings.  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2081.)   The same is true here, where Hedge argues, as he did below, that the newly enacted Act seeks to impose “punishment” based upon his past crime for which he has already been convicted and forced to serve a prison term.  (Ibid.)

In resolving the matter, the court in Hendricks reiterated that:

“The categorization of a particular proceeding as civil or criminal ‘is first of all a question of statutory construction.’  [Citation.]   We must initially ascertain whether the legislature meant the statute to establish ‘civil’ proceedings.   If so, we ordinarily defer to the legislature's stated intent.”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2081.)

The court noted the Kansas Legislature evidenced its intent to create a civil commitment scheme by placing the Kansas Act in the Kansas Probate Code rather than in the Penal Code and that although a “ ‘civil label is not always dispositive,’ [citation],” it would “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 [that] intention’ to deem it ‘civil.’  [Citation.]”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2082.)

After reviewing the language of the Kansas Act in light of the stated intent for its enactment,9 the court in Hendricks found that the Kansas Act was civil, deferring to that legislature's stated intent to establish such proceedings for the care and treatment of sexually violent predators and “designed to protect the public from harm.”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2082.)   The court found the fact the Kansas Act did not “affix culpability for prior criminal conduct [,]” rather using such only for evidentiary purposes to show that a current qualifying mental condition exists or to support a finding of future danger to the public, was important for determining that the Act was not “seeking retribution for a past misdeed.”  (Ibid.) The court found further support for its conclusion the Kansas Act was not penal in the facts “no finding of scienter is required to commit an individual who is found to be a sexually violent predator[,]” and it could not “be said that the legislature intended the Act to function as a deterrent.”  (Id. at p. ----, 117 S.Ct. at p. 2082.)

The court in Hendricks found detention for the purpose of protecting the public from harm from dangerously mentally ill persons was a legitimate “non-punitive governmental objective․”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at 2083, citing United States v. Salerno, supra, 481 U.S. at pp. 746-747, 107 S.Ct. at pp. 2101-2102.)   It rejected Hendricks's arguments the potential of indefinite commitment duration, the failure to offer legitimate treatment while confined and the use of procedural safeguards traditionally found in criminal trials evidenced the Kansas Act established criminal proceedings.  (Kansas v. Hendricks, supra, at p. ----, 117 S.Ct. at p. 2083.)   It found “commitment under the Act is only potentially indefinite[,]” (id. at p. ----, 117 S.Ct. at p. ----) because the Kansas Act provides for continual annual reviews for any extensions of the initial one year commitment and gives the person so committed the right to immediate release once he or she is adjudged “ ‘safe to be at large.’ ”  (Ibid., citing Kan.Stat.Ann. §§ 59-29a07 & 59-29a08.)   It explained it had already determined in Allen v. Illinois (1986) 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 that the decision of a state to afford the safeguards usually found in criminal proceedings to a new civil legislative act does not transform it into a criminal prosecution but merely shows the state is taking “great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards.”  (Kansas v. Hendricks, supra, at --- U.S. at p. ----, 117 S.Ct. at p. 2083.)   And it noted that even if it found that Hendricks's mental condition was untreatable while committed under Kansas's Act, it would still not find the Act punitive:

“While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, [citation], we have 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.   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.]”  (Id. at p. 2072, 117 S.Ct. at p. 2084.)

The court further found that even if the primary purpose of the Kansas Act were to keep sexually violent predators confined, the fact that “an ancillary purpose of the Act was to provide treatment [for those confined,]” did not require a conclusion the Act was punitive.  (Kansas v. Hendricks, supra, 521U.S. at p. ----, 117 S.Ct. at p. 2084.)   It also rejected arguments the Kansas Act was punitive because Hendricks was confined on prison grounds because he was housed in “a unit segregated from the general prison population [which was not operated] by employees of the Department of Corrections, but by other trained individuals.”  (Ibid., fn. omitted.)

The court concluded that:

“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 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, 521 U.S. at p. ----, 117 S.Ct. at p. 2085.)

It therefore held the Kansas Act did not establish criminal proceedings and that involuntary confinement under the Act was not punitive.  (Ibid.)

In turn, the court found its conclusion the Kansas Act was not punitive fatal to Hendricks's ex post facto claim.  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2086.)   Because an essential prerequisite, the imposition of punishment, was missing from the Kansas Act, the court held its application to Hendricks did not raise ex post facto concerns.  (Ibid.) Nor did the court find that the Kansas Act had a retroactive effect, stating:

“Rather, the [Kansas] Act permits involuntary confinement based upon a determination that the person currently both suffers from a ‘mental abnormality’ or ‘personality disorder’ and is likely to pose a future danger to the public.   To the extent that past behavior is taken into account, it is used, as noted above, solely for evidentiary purposes.   Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause.”  (Ibid., original italics.)  10

Here, the trial judge in ruling the Act violated the ex post facto clause found from his review of the stated intent for enacting the Act that “[t]reatment appears to be incidental to the main consequence of confinement-successful separation of the suspected recidivist from the remainder of society.”   He supported this conclusion with his interpretation that the Act applied even when a person did not have a “mental illness” with the lack of legislative findings that effective treatment exists for mental conditions such as pedophilia or that SVP's in general are amenable to treatment, with the lack of a legislative finding as to why SVP's were inappropriate for treatment under existing laws, with his interpretation the Act was intended primarily to continue the person's confinement and prevent release on parole, and with the fact the confinement of persons under the Act was to be in mental health facilities located on secure state prison grounds.

 When we review the matter in light of the analysis in Hendricks, comparing the language of the Act, which includes its legislative intent 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, chs.762, § 1, 763, § 1), to the language of the Kansas Act, we cannot say, as the trial court did, that the California Legislature acted with punitive intent when it enacted the Act.11 It expressly disavowed any such intent;  it narrowly defined the segment of particularly dangerous individuals for which confinement could be sought (§ 6600, subds. (a) & (b));  it provided strict procedural safeguards (§§ 6601-6608);  it directed that the confined persons be segregated from the general prison population (§ 6604); 12  it mandated treatment for the person confined even if that person is not amenable to treatment (§ 6606); 13  and it permitted immediate release upon a showing the committed individual is no longer dangerous or mentally impaired (§§ 6605-6608).

Further, when enacted, the Act was placed in the Welfare and Institutions Code rather than in the Penal Code. Like the Kansas Act, the Act on its face does not suggest “that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2082.)   While it provides many of the procedural safeguards traditionally found in criminal matters, “[t]hat [the California Legislature has chosen] to afford such procedural protections does not transform a civil commitment proceeding into a criminal prosecution.”  (Id. at p. ----, 117 S.Ct. at p. 2083.)   As Hedge concedes, the California Supreme Court has repeatedly required these same protections in virtually all civil involuntary commitment proceedings.  (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 178-179, 167 Cal.Rptr. 854, 616 P.2d 836;  Conservatorship of Roulet (1979) 23 Cal.3d 219, 223, 152 Cal.Rptr. 425, 590 P.2d 1.)

Moreover, the Act does not require “scienter” or criminal intent in order to find and commit a person as an SVP. “The absence of such a requirement here is [further] evidence that confinement under the statute is not intended to be retributive.”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2082.)   Similar to the Kansas Act, the Act does not affix culpability for prior criminal conduct but rather uses such solely for evidentiary purposes of showing that a diagnosed mental disorder or illness exists or to support a future dangerousness finding.  (Ibid.;  § 6600, subd. (a).)  By targeting only those qualified individuals who suffer from diagnosed mental disorders or abnormalities which prevent them from controlling their violent sexual tendencies, the Act, like the Kansas Act, also does not function as a deterrent, thus providing further evidence of its civil intent.14  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2081.)

Hedge makes much of the fact the court in Hendricks relied upon the factor that the Kansas Act did not require a criminal conviction as a prerequisite for commitment under that proceeding to determine it was not punitive.15  (Kansas v. Hendricks, supra, 521 U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2081-2083.)   Although the Act has subsequently been amended to include persons not found guilty by reason of insanity and those found to be mentally disordered sex offenders (pre-1977) (Stats.1996, ch. 462, § 4), hence making it more like the Kansas Act, Hedge argues such amendment has no bearing on our review of the intent of the Act as originally adopted.   While, admittedly, such amendments have little or no bearing on “determining the relevant intent of the Legislature that enacted the law” (Peralta Community College Dist. v. Fair Employment & Housing Com. (1990) 52 Cal.3d 40, 52, 276 Cal.Rptr. 114, 801 P.2d 357), Hedge fails to appreciate that such is but one factor in the equation of determining whether the Act is penal or civil.   He also fails to recognize that under either the Kansas Act or the Act, it is past criminal acts, regardless of a determination that the person should be absolved of criminal responsibility for such conduct, which merely help define the narrow class of persons who fall under the respective commitment proceedings.   The Act does not increase the sentence for those earlier criminal offenses or allow the trier of fact to impose a civil commitment based solely on such past conduct. (§ 6600, subd. (a).)  Only if the proposed SVP is found to have a current mental disorder, illness or abnormality that presents a future danger to society will commitment under the Act be imposed.

Hedge simply has not shown that the Act is “ ‘so punitive either in purpose or effect to negate [the California Legislature's] intention’ to deem it ‘civil.’ ”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2082.)   We thus hold, as did the court in Hendricks, “that the Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive.”  (Id. at p. ----, 117 S.Ct. at p. 2085.)

This conclusion, as it did in Hendricks, necessarily strikes a fatal blow to Hedge's claim the Act violates the ex post facto clause.   Without the Act being punitive, it does not impose additional punishment.   Moreover, because the Act, as the Kansas Act does, only permits confinement based upon a determination the proposed SVP presently suffers from a “diagnosed mental disorder,” which includes the mental condition similarly defined and found to be a type of mental illness in Hendricks, and is likely to pose a future danger to the public, it does not have retroactive effect.  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2086.)

Hedge's reliance on People v. Gibson (1988) 204 Cal.App.3d 1425, 1434, 252 Cal.Rptr. 56 and other cases predating the ex post facto analysis set forth in Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 and that adopted by our Supreme Court in People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955, is unfounded.  “Under Collins, ․ the ex post facto clause prohibits not just a burden but a more burdensome punishment.”  (People v. McVickers, supra, 4 Cal.4th at p. 84, 13 Cal.Rptr.2d 850, 840 P.2d 955, original italics.)   The proper inquiry post-Collins is not whether the law results in a disadvantage to the person affected by it but rather whether it increases the penalty by which a crime is punished.  (Ibid.) Our analysis in light of Hendricks has determined application of the Act to Hedge does not cause him to suffer increased penalty for his earlier committed crimes.16

Our conclusion is further supported by decisions of courts in other jurisdictions analyzing similar statutes in other states before Hendricks was decided.17  The sexual predator statute in Illinois was upheld against similar constitutional challenges even though that statute required the commitment of a sexually dangerous person to be in a psychiatric center located in a maximum security facility run by the DOC and required the truth of the person's prior convictions be proven “to show the accused's mental condition and to predict future behavior.”  (Allen v. Illinois, supra, 478 U.S. at p. 371, 106 S.Ct. at p. 2993.)   Although, as Hedge points out, the Illinois statute provides for treatment of sex offenders in lieu of criminal punishment, such circumstance does not mean that other commitment procedures, including those which take effect after a defendant has served a criminal sentence, constitute punishment.   Rather, as noted in Hendricks and above, numerous factors bear on the determination whether a statute is civil or criminal;  no one circumstance is controlling.

The Washington State Supreme Court in In re Young (1993) 122 Wash.2d 1, 857 P.2d 989 18 and the Wisconsin State Supreme Court in State v. Carpenter, supra, 197 Wis.2d 252, 541 N.W.2d 105, and State v. Post (1995) 197 Wis.2d 279, 541 N.W.2d 115, have recently rejected like arguments in ex post facto challenges to their respective state's sexually violent predator statutes, finding them not to be penal sanctions.   The Wisconsin statute dealing with the commitment of sexually violent persons is virtually identical to the Act. Because the principle purposes of the Wisconsin statutory proceeding were to protect the public and treatment of the sex offender, significant nonpunitive and remedial purposes, the Wisconsin Supreme Court found the required attributes of restraint and a prior conviction before imposition of a current commitment did not transform such commitment into punishment for a past crime.  (State v. Carpenter, supra, 541 N.W.2d at pp. 112-113.)   As with the Act, “[t]he focus of the statute is on the offender's current mental condition and the present danger to the public, not punishment.”  (Id. at p. 113.)

In sum, we find the Act, like the statutes upheld in Hendricks, Allen, Young, Post and Carpenter, is not a penal statute.   Accordingly, it does not violate Hedge's rights under the ex post facto clauses of the state and federal Constitutions.

II

Double Jeopardy

 We also agree with the People that Hedge's double jeopardy argument fails.   Because the double jeopardy clause protects against multiple punishments for the same offense (United States v. Halper (1989) 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487), our determination the Act does not constitute “punishment” for a criminal offense forecloses the possibility of a double jeopardy violation.   Such conclusion is fully supported by the finding in Hendricks that “commitment under the Act is not tantamount to ‘punishment,’ ․ even though that confinement may follow a prison term.”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2086.)   And, though the California Supreme Court has at times construed the state double jeopardy clause more extensively than the United States Supreme Court has in interpreting its federal counterpart (see, e.g., People v. Fields (1996) 13 Cal.4th 289, 298, 52 Cal.Rptr.2d 282, 914 P.2d 832, Stone v. Superior Court (1982) 31 Cal.3d 503, 509-510, 183 Cal.Rptr. 647, 646 P.2d 809), like the court in People v. Superior Court (Williams) (1991) 233 Cal.App.3d 477, 284 Cal.Rptr. 601, reasoned:

“[W]e are aware of no case which concludes double jeopardy provisions are applicable to conservatorship, commitment, recommitment, or extension of commitment proceedings.   These types of proceedings are essentially civil in nature and are not adjudications of criminal offenses.   It would be singularly inappropriate to apply double jeopardy provisions to these types of proceedings where the issue to be determined is not whether [Hedge] committed an act or offense, but whether [he] suffers from a mental condition which makes him dangerous to others.”  (Id. at pp. 486-487, 284 Cal.Rptr. 601.)

We therefore conclude the Act does not punish Hedge twice for the same crime and consequently does not violate double jeopardy provisions.

III

Substantive Due Process

 The People also argue the trial court erred in finding the Act unconstitutional “both facially and as applied to Hedge” for failing to satisfy federal substantive due process requirements in its definition of “diagnosed mental disorder.” 19  We agree.

 The California and United States Constitutions require that a person shall not be deprived of life, liberty, or property without due process of law.  (U.S. Const., Amends. 5, 14;  Cal. Const., art.   I, § 7.) Freedom from personal restraint is a fundamental liberty interest.  (United States v. Salerno, supra, 481 U.S. at p. 750, 107 S.Ct. at p. 2103.)   If a state law infringes upon personal liberty, as the Act does here, it is constitutional only if it furthers compelling state interests and is narrowly drawn to serve those interests.  (Reno v. Flores (1993) 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1.)   As we have already noted, California has a compelling interest both in treating persons found to be SVP's and in protecting society from their dangerous tendencies.  (See Addington v. Texas (1979) 441 U.S. 418, 426, 99 S.Ct. 1804, 1809-1810, 60 L.Ed.2d 323.)   The trial judge here, however, found the Act violated due process because he did not think it was narrowly tailored to serve those interests.   Specifically, he found the definition of “diagnosed mental disorder” in section 6600, subdivision (c) “allows the indefinite commitment of those labeled individuals based only upon a conclusion that the individual is dangerous without a finding of mental illness in the constitutional sense required by Foucha.” 20  The United States Supreme Court in Hendricks rejected a similar interpretation of the requirement of Foucha for the Kansas Act. (Kansas v. Hendricks, supra, 521 U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2079-2081.)   We find the reasoning of Hendricks dispositive in this matter.

Like Hendricks, Hedge argued below that Foucha required a finding of “mental illness” as a prerequisite for civil commitment and that the use of the term “diagnosed mental disorder” which includes “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others” (§ 6600, subd. (c)), was not equivalent to “mental illness” and thus allowed commitment without the required finding of “mental illness.”   The court in Hendricks rejected this argument, noting “the term ‘mental illness' is devoid of any talismanic significance.”  (Kansas v. Hendricks, supra, 521U.S. at p. ----, 117 S.Ct. at p. 2080.)

The court in Hendricks reiterated that it has never enunciated a single definition to describe the mental condition sufficient for involuntary mental commitment, often using the terms “mental illness” interchangeably with “emotionally disturbed,” leaving the State legislatures to adopt their own specialized terms to define mental health concepts for civil commitment statutes.  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2081.)   The court commented that “[l]egal definitions ․ which must ‘take into account such issues as individual responsibility ․ and competency,’ need not mirror those advanced by the medical profession.  [Citation.]”  (Ibid.)

While reaffirming that dangerousness alone is ordinarily insufficient to justify an indefinite involuntary commitment, the court in Hendricks found that when such is coupled “with the proof of some additional factor, such as a ‘mental illness' or ‘mental abnormality[,]’ ” a civil commitment scheme will pass constitutional muster.  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2080.)   Such additional requirements “serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control.”  (Ibid.) The court found the Kansas Act a constitutional civil commitment statute because:

“It 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.]   The precommitment requirement of a ‘mental abnormality’ or ‘personality disorder’ is consistent with the requirements of ․ other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.”   (Ibid.) 21

The Act also couples its dangerousness element with the requirement an individual have a “diagnosed mental disorder.” (§ 6600, subd. (a).)  While the Act does not fully define diagnosed mental disorder, such term includes a mental condition defined virtually identical to the one defined by the Kansas Act. Because the Act on its face does not differ from other civil commitments in its requirement of a finding of “mental disorder,” we find it is sufficiently narrowly drawn and does not violate substantive due process as that constitutional requirement is interpreted in Hendricks or by California cases (see People v. Superior Court (Dodson) (1983) 148 Cal.App.3d 990, 998-999, 196 Cal.Rptr. 431 and cases cited there).

As repeatedly noted, in a facial challenge to a statute, as here, Hedge cannot prevail by suggesting that “ ‘in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute․’ ”  (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145, italics omitted.)   Nor can he challenge its application as to himself based on factual matters contained in the petition and its supporting data.   The trial court's determination that the facts supporting his diagnosed mental disorder were insufficient to show Hedge had a present mental illness was thus clearly in error.   For purposes of demurrer, the facts in the petition and attached psychotherapist reports setting forth Hedge's “diagnosed mental disorder” are uncontradicted and sufficient for purposes of due process.   Thus, factual arguments raised by Hedge and Roberge in their supplemental letter briefs concerning their specific mental conditions are also improper at this stage of the proceedings.

Moreover, Hedge's argument the dangerousness component of the statute violates due process because it does not require clear and convincing proof of present danger is meritless.   He bases his claim on the Act's language that a person may be committed if he or she is “likely” to engage in sexually violent criminal conduct. (§ 6600, subd. (a).)  However, the plain language of the Act requires proof beyond a reasonable doubt that the person has a currently diagnosed mental disorder making him or her a danger to the health and safety of others. (§§ 6603, subd. (d), 6604, 6600, subd. (a).)

 As the court in Conservatorship of Hofferber, supra, 28 Cal.3d at p. 175, 167 Cal.Rptr. 854, 616 P.2d 836 stated:

“If [it is] feasible within [the] bounds set by their words and purpose, statutes should be construed to preserve their constitutionality.”  (Ibid.)

We find nothing on the face of the Act supports Hedge's claim that it allows commitment based on anything less than the constitutionally permissible burden of proof.   The Act is specifically tailored to assure only those most likely to engage in violent sexually predatory behavior can be committed under its provisions.

 Further, to the extent Hedge makes a facial due process claim on the ground the Act fails to provide for successful treatment of the committed person, we agree with the court in In re Blodgett (Minn.1994) 510 N.W.2d 910 that, “[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided.”  (Id. at p. 916.)   Given the current state of psychiatry, a mental health commitment cannot be invalidated simply because the committed person may not ever be cured.  (O'Connor v. Donaldson, supra, 422 U.S. at pp. 587-589, 95 S.Ct. at pp. 2499-2500.)

In any event, we believe that the Act's mandatory treatment of committed persons “consistent with current institutional standards for the treatment of sex offenders ․” (§ 6606, subd. (c)), does give a person, like Hedge, “ ‘a realistic opportunity’ ” to improve his mental condition.   (People v. Feagley, supra, 14 Cal.3d at p. 359, 121 Cal.Rptr. 509, 535 P.2d 373.)   Due process does not require more.

Based on all of the above reasons, we conclude the Act does not violate the federal or state due process clauses.   The trial court therefore erred in finding the Act violative of federal due process.

IV

Equal Protection

 Because the trial court sustained Hedge's demurrer on other grounds, it did not consider his assertion the Act violates the federal and state constitutional guarantees of equal protection of the laws (U.S. Const., 14th Amend;  Cal. Const., art, I, § 7).   Relying on Baxstrom v. Herold (1966) 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 and People v. Gibson, supra, 204 Cal.App.3d 1425, 252 Cal.Rptr. 56, Hedge argues the Act, unlike other civil commitment statutory schemes, violates equal protection because it does not require that an individual represent a “present” danger in order to be committed for mental health treatment.   Consequently, he asserts the Act, like the commitment schemes found improper in Baxstrom and Gibson, improperly allows confinement “for the arbitrary reason that [a person] is nearing completion of service of his term of imprisonment.”  (People v. Gibson, supra, 204 Cal.App.3d at p. 1437, 252 Cal.Rptr. 56.)   In essence, Hedge claims the Act violates equal protection because it applies without justification a different civil commitment standard to persons like him who are completing prison terms and are similarly situated to all others who are committed under the State's other civil commitment schemes.   We find no violation of equal protection.

 In order to prevail on an equal protection claim, a person must show the state has adopted a classification that affects similarly situated groups in an unequal manner.  (City of Cleburne v. Cleburne Living Center, Inc. (1985) 473 U.S. 432, 439, 105 S.Ct. 3249, 3253-3254, 87 L.Ed.2d 313;  In re Eric J. (1979) 25 Cal.3d 522, 530, 159 Cal.Rptr. 317, 601 P.2d 549.)   Hedge has not done so.

His reliance on Baxstrom and Gibson is misplaced.   In Gibson, where the court found that the originally written MDO commitment statutory scheme violated equal protection, the state had only to prove that the prisoner's crime was one involving force or violence causing serious bodily injury and that the prisoner had a severe mental disorder which had contributed to the underlying crime and was not in remission.22  (People v. Gibson, supra, 204 Cal.App.3d at p. 1436, 252 Cal.Rptr. 56.)   The court in Gibson equated the MDO law to the commitment procedure discussed in Baxstrom that was invalidated by the United States Supreme Court because it treated prisoners reaching the end of their terms differently from others subject to commitment by denying them a jury trial on the issue of their mental illness and failing to require proof of their dangerousness.  (Baxstrom v. Herold, supra, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620.)   The court in Gibson concluded the MDO law similarly violated equal protection because it provided for commitment of prisoners at the end of their terms without requiring “proof of any present dangerousness as a result of mental illness.”  (People v. Gibson, supra, 204 Cal.App.3d at p. 1436, 252 Cal.Rptr. 56.)

That the Act provides for a jury trial on the issue of mental illness is not disputed.   Nor does the Act suffer from the same constitutional infirmity as did the original MDO law, and as did the statute in Baxstrom.   Rather, the Act does require a finding that the person to be committed is “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).)  That the definition of “danger” in the Act may be stated differently than in other such civil commitment statutes is not fatal.   As the court in Conservatorship of Hofferber, supra, 28 Cal.3d at page 176, 167 Cal.Rptr. 854, 616 P.2d 836 stated after considering a similar issue concerning the different definitions of danger, the distinctions among the various definitions are “more form than substance.”  (Ibid.) The court in Hofferber recognized that the confinement of a mentally ill person on the basis of dangerousness, however defined, is based on “propensities” and the “possibility” of further acts of violence.  (Ibid.)

Although we agree a “conclusive presumption of current dangerousness” based only on past violent felonious conduct would deny equal protection (Conservatorship of Hofferber, supra, 28 Cal.3d at p. 177, 167 Cal.Rptr. 854, 616 P.2d 836;  Jones v. United States (1983) 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694), where, as here, a finding that the person is presently a danger to others, in addition to having a mental illness and qualifying past criminal conduct, based on the appropriate standard of proof, satisfies not only due process concerns but negates an equal protection violation.

Moreover, the Legislature clearly stated a legitimate or rational purpose for adopting the Act, i.e., the state has a compelling interest in both treating the class of mentally disordered sexual offenders defined by the Act and in protecting society from their dangerous tendencies.  (Addington v. Texas, supra, 441 U.S. at p. 426, 99 S.Ct. at pp. 1809-1810.)   The unique feature of the Act is that it narrowly restricts commitments to the class of persons who have demonstrated a particular type of danger-those who have committed sexually violent predatory offenses and who have the propensity due to their mental disorder to commit further acts of sexual predatory violence.   That persons near the end of their terms who are subject to other civil commitment schemes may also be dangerous in varying degrees is irrelevant.  “[T]he Legislature is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.”  (State of Minnesota v. Probate Court (1940) 309 U.S. 270, 275, 60 S.Ct. 523, 526, 84 L.Ed. 744.)   We believe it has done so here.   No equal protection violation is shown.

CONCLUSION

“Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable.”  (Varanelli v. Structural Pest Control Board (1969) 1 Cal.App.3d 217, 220, 81 Cal.Rptr. 492;  Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252, 48 Cal.Rptr.2d 12, 906 P.2d 1112.)   And where the Legislature has stated its intent for enacting a statute was to establish a civil proceeding for purposes of treating persons posing a danger to the public, the person challenging the statute must show a punitive purpose by the “ ‘clearest proof’.”  (United States v. Ward (1980) 448 U.S. 242, 249, 100 S.Ct. 2636, 2641-2642, 65 L.Ed.2d 742.)   The burden of showing such unconstitutionality is on the challenger.   (People v. Jackson (1980) 28 Cal.3d 264, 317, 168 Cal.Rptr. 603, 618 P.2d 149.)   We conclude Hedge has not met his burdens.   We therefore find the trial court erred in declaring the Act unconstitutional on its face and as applied to Hedge and the other proposed SVP's whose cases have been consolidated with Hedge's case.

DISPOSITION

The judgments of dismissal are reversed.   The matter is remanded to the trial court with directions to vacate its various orders sustaining the demurrers to each of the seven petitions and ordering release of the seven proposed SVP's in question and to enter new orders overruling each of the seven demurrers insofar as they are based on the constitutional violations addressed in this opinion, to direct the interim detention of the seven proposed SVP's in accordance with the relevant provisions of the Act pending further proceedings, and to conduct the further proceedings specified in the Act in a manner consistent with this opinion.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   These qualifying offenses, which must be “committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ․,” include Penal Code sections 261, subdivision (a)(2), 262, subdivision (a)(1), 264.1, 288, subdivisions (a) or (b), 289, subdivision (a), and sodomy or oral copulation in violation of Penal Code sections 286 or 288a. (§ 6600, subd. (b).)  For purposes of the Act, sexually violent offenses may also include a finding of not guilty by reason of insanity for an offense described in the Act, a conviction leading to a finding that the person was a mentally disordered sex offender, a conviction in another state of an offense that includes all the elements of an offense described in the Act, and a conviction before July 1, 1977, of an offense enumerated in the Act, even if the offender did not receive a determinate sentence for that crime. (§ 6600, subd. (a), as amended Stats.1996, ch. 462, § 4, eff.   Sept. 13, 1996.)

3.   The six-month time period does not apply during the first year the Act is operative (§ 6601, subd. (j)) and may be shortened under certain circumstances (§ 6601, subd. (a)).“The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders ․ [including] criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).)

4.   The Act defines “predatory” as “an act directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (§ 6600, subd. (e).)

5.   The six cases consolidated with Hedge are:  People v. Robert Emmett Blevins, case No. D027221;  People v. Frederick Douglass Harmon, case No. D026867;  People v. James Paul Donnell, case No. D026742;  People v. Anthony Crane, case No. D027701;  People v. Douglas Badger, No. case D02868;  and People v. Joseph Albert Roberge, case No. D027104.   Although Donnell was the first case to be dismissed after the sustaining of a demurrer without leave to amend, Hedge was the first to be dismissed via a written decision.   In the other five cases, counsel representing each proposed SVP objected to the petition on the same constitutional grounds as in Hedge and the parties stipulated to submitting the matter based on the briefs filed in Hedge.   The court thereafter issued essentially the same written decision in each case as it did in Hedge, changing the ruling only with respect to the specifically alleged facts of each petition that qualified the proposed SVP for commitment under the Act.

6.   Because Hedge is the lead case, reference to the proposed SVP named Hedge will also refer to each of the other proposed SVP's unless otherwise noted.

7.   Because no factual findings are permissible on demurrer (Colm v. Francis (1916) 30 Cal.App. 742, 752, 159 P. 237), neither side presented evidence at the hearing on the demurrer on which factual findings could be made.   The petition filed alleging Hedge is an SVP under the Act recited his qualifying prior convictions of two forcible lewd acts on a child in violation of Penal Code section 288, subdivision (b), against two victims, that he had received a determinate term for those crimes, and incorporated the findings of two psychotherapists that Hedge suffered from a currently diagnosed mental disorder that made him a danger to the health and safety of others and that it was likely he would engage in sexually violent criminal behavior if released.

8.   We believe such broad conclusions by the trial court would have necessarily involved factual findings which are not permitted at the demurrer stage.   In fact, the trial court's decision contains several statements that we can only construe as factual findings, opinions or assumptions.   The decision states Hedge was not suffering from any mental illness and that “[i]n substance and stripped of all of the diagnostic manual labels, the forensic reports show an individual who has regularly defied society's rules by engaging in repeated criminal behavior and who can be predicted to engage in recidivist behavior in violation of the criminal law in the future.”   Such findings by the trial court are not proper on demurrer as they can only be made after determining the facts stated in the petition are not true.   However, for purposes of demurrer, the psychotherapist reports attached to the petition, alleging that Hedge suffers from a form of mental illness justifying an involuntary mental health civil commitment, were required to be assumed true.   Any dispute as to their accuracy or sufficiency to support a finding of a “diagnosable mental disorder” under the Act would need to be resolved at a different procedural stage of the proceedings.

9.   The Kansas Legislature in the preamble of its Act explained:  “ ‘[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute]․  In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior.   The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high.   The existing involuntary commitment procedure ․ is inadequate to address the risk these sexually violent predators pose to society.   The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional modalities for people appropriate for commitment under the [general involuntary civil commitment statute].’  Kan. Stat. Ann.[ (1994) § 59-29a01].”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2077.)The Kansas Legislature thus established “ ‘a civil commitment procedure for the long-term care and treatment of the sexually violent predator [,]’ ” (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2077) whom it defined as:  “ ‘any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ”  (Ibid. quoting from Kan. Stat. Ann. § 59-29a02(a).)   In turn, the Kansas Act defined “mental abnormality” 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.’  [Kan. Ann.] § 59-29a02(b).”  (Kansas v. Hendricks, supra, 521 U.S. at pp. ---- - ----, 117 S.Ct. at pp. 2076-2079.)

10.   The court in Hendricks did not cite the well established authority of that court on the meaning of the ex post facto clause which it had earlier noted in Beazell v. Ohio (1925) 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 “may be dispensed with․”  (Id. at pp. 169-170, 46 S.Ct. at pp. 68-69.)

11.   Contrary to Hedge's supplemental arguments the legislative history reveals the Acts's punitive purposes, the plain language of legislative intent included when the Act was adopted, as well as the legislative analysis that accompanied the final version of the bill which referred to the Act as a “civil commitment,” outweighs any earlier isolated comments accompanying one of the original bills for the Act (e.g., Assem.   Bill No. 888).   Selected statements from the legislative history of a statute which might reflect a punitive motivation are simply not sufficient to negate the presumption of constitutionality consistent with the statute's stated purposes.  (State v. Carpenter (1995) 197 Wis.2d 252, 541 N.W.2d 105, 112, fn. 11;  Wiley v. Bowen (D.C.Cir.1987) 824 F.2d 1120, 1122.)

12.   Effective July 22, 1996, a person determined to be an SVP is to be placed in Atascadero State Hospital in the 1996-1997 fiscal year “unless there are unique circumstances that would preclude the placement of a person at that facility.” (§ 6600.05;  Stats.1996, ch. 197, § 20.)   Contrary to Hedge's assertion in his supplemental letter brief that the Act is criminal because he and other state prisoners have received treatment at Atascadero while under prison commitments with DOC and thus an individual confined there under the Act is not segregated from the general prison population, he has failed to show commitment under the Act is not in a separate secure facility under the custody of the director of DMH at Atascadero State Hospital.   Rather, such is a factual issue which cannot be reached at this time.   On its face, the Act provides commitment separate from the general prison populace.

13.   Recognizing Hendricks is dispositive of his federal constitutional argument regarding the lack of effective treatment for his mental condition, Hedge argues the California Constitution requires meaningful treatment as an essential condition of any valid civil commitment scheme.  (People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373.)   Since the Act does not guarantee him treatment that offers him a realistic opportunity to be cured of his diagnosed mental condition, Hedge claims it is unconstitutional under California law.  (Ibid.) Again, we emphasize that the demurrer stage of these proceedings, as does the ex post facto question, precludes any consideration of the circumstances specific to Hedge and the possible effectiveness of treatment for his mental condition.   Such is simply irrelevant at this time.To the extent Hedge is arguing the lack of effective treatment renders commitment under the Act cruel and unusual punishment, such claim also fails.   As we determine, the Act is a civil commitment proceeding which provides both treatment and confinement of the SVP for the protection of society, not punishment.   While in some cases treatment will not be effective because none has been developed, such fact does not render unconstitutional an involuntary confinement for the protection of others.  (See O'Connor v. Donaldson (1975) 422 U.S. 563, 588-589, 95 S.Ct. 2486, 2500, 45 L.Ed.2d 396 (conc. opn. of Burger, C.J.);  Bailey v. Gardebring (8th Cir.1991) 940 F.2d 1150, 1155.)   Any possible fact specific contention regarding cruel and unusual punishment will have to come after full exploration of the facts and not at this stage.

14.   To the extent the Act may arguably be said to deter the specific individual because he will not be able to perpetrate sexually violent crimes upon women and children in the community while he is committed, such alleged individual punitive effect is not intended as such but is an inevitable consequence of a law that has primarily a legitimate regulatory purpose, it is not punishment.  (California Dept. of Corrections v. Morales (1995) 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588;  De Veau v. Braisted (1960) 363 U.S. 144, 160, 80 S.Ct. 1146, 1154-1155, 4 L.Ed.2d 1109.)

15.   Roberge has also filed a separate letter brief raising this point.

16.   A similar conclusion has also been reached recently by the court in People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 58 Cal.Rptr.2d 32, which rejected an ex post facto challenge to the Mentally Disordered Offenders (MDO) civil commitment scheme [Pen.Code §§ 2960-2981].

17.   As the parties acknowledge, the other decisions in this state addressing various constitutional questions concerning the Act are pending review before our Supreme Court:  Hubbart v. Superior Court (1996) 50 Cal.App.4th 1155, 58 Cal.Rptr.2d 268 review granted February 26, 1997 (S052136);  Garcetti v. Superior Court (1996) 49 Cal.App.4th 1533, 57 Cal.Rptr.2d 420 review granted February 5, 1997, (S057336);  People v. Superior Court (Cain) (1996) 49 Cal.App.4th 1164, 57 Cal.Rptr.2d 296 review granted February 5, 1997 (S057272);  each has been reprinted without change in the Review Granted Opinions Cumulative Supplement to permit tracking pending review and disposition by the Supreme Court.

18.   In a federal habeas proceeding, the Federal District Court for the Western District of Washington found the statute violated both the substantive due process and ex post facto provisions of the United States Constitution.  (Young v. Weston (W.D.Wash.1995) 898 F.Supp. 744.)   That decision is now pending before the Ninth Circuit Court of Appeals.   Such lower federal court decision is not binding on this court.  (See Peoplev. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129;  Matter of Paschke (1996) 80 Wash.App. 439, 909 P.2d 1328, 1333, fn. 5.)

19.   Hedge argues on appeal, as he did below, that the Act violated the due process clauses of both the state and federal Constitutions because on its face it permits involuntary commitment without proof of mental illness, it is unconstitutional as applied to him because he does not currently suffer from mental illness, it unconstitutionally permits confinement without clear and convincing proof of present dangerousness;  and it does not provide a realistic opportunity for an SVP to be cured or to improve his or her mental condition.   Be it ever so repetitive, we stress this matter comes to us by way of dismissal after a demurrer to the face of the petition for Hedge's commitment under the Act. That being so, the matter is not ripe for any factual determinations specific to Hedge.   We thus need not address his second argument at this time.

20.   Foucha v. Louisiana (1992) 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437.

21.   The court stressed that before a commitment proceeding under the Kansas Act could be commenced, a person had to have “ ‘been convicted of or charged with a sexually violent offense,’ and ‘suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ”  (Kansas v. Hendricks, supra, 521 U.S. at p. ----, 117 S.Ct. at p. 2080.)

22.   The MDO law was subsequently amended in response to Gibson and now includes the requirement that “by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others.”  (Pen.Code, § 2962, subd. (d)(1).)

HUFFMAN, Associate Justice.

KREMER, P.J., and NARES, J., concur.

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