THE PEOPLE v. RAYMOND SWAIN JR

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND SWAIN, JR., Defendant and Appellant.

F056514

Decided: March 03, 2010

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

This appeal is from an order civilly committing appellant Raymond Swain, Jr., under what is commonly known as the Sexually Violent Predator Act (SVPA) ( Welf. & Inst.Code,1 § 6600 et seq.) to the State Department of Mental Health (Department) for an indeterminate term.2  The commitment petition was filed on February 16, 2007, and went to jury trial on November 5, 2008.   The jury concluded that Swain was a sexually violent predator (SVP) as defined by the SVPA, and the trial court ordered Swain committed.   Swain challenges the validity of his commitment on a number of constitutional and statutory grounds.   Based on the California Supreme Court's recent ruling in People v. McKee (2010) 47 Cal.4th 1172, we reverse the trial court's order.

Factual Summary

The jury heard evidence at trial from four experts on the issue of whether Swain was an SVP as defined by the statute:  psychologists Dr. Michael Musacco and Dr. Dawn Starr for the prosecution, and psychologists Dr. Mark Miculian and Dr. John Hupka for the defense.   Musacco and Starr both testified that Swain had committed several qualifying offenses under the SVPA, including a 1987 attempted rape of a single victim who had testified against Swain in a burglary case, and a 1987 rape and sexual assault of two women who got into a car with Swain in an attempt to purchase drugs.   In 1990, Swain raped and sexually assaulted a fourth woman.   This offense did not result in a conviction, but did result in a parole violation and a return to prison.   In addition to the qualifying offenses, Swain has a long history of criminal behavior.   Since 1988, he has spent the majority of his life in prison or jail.   A number of Swain's nonrape offenses were committed against women and were what could generally be characterized as violent domestic violence offenses.

Both Musacco and Starr diagnosed Swain with paraphilia not otherwise specified, polysubstance abuse, and antisocial personality disorder.   According to Musacco, paraphilia is a recurrent, intense, sexually arousing fantasy, urge, or behavior and, in Swain's case, is directed toward nonconsenting women.   Paraphilia is a lifelong condition.   According to Musacco, antisocial personality disorder is also a chronic condition that will not improve without treatment and includes legal problems, aggressive, irresponsible, and impulsive behavior, and lack of remorse.   Musacco testified that both of these disorders are diagnosable mental disorders within the meaning of the SVPA. Each disorder impairs volition and control.   As an example, Musacco referenced the 1987 assaults that occurred within a short time of Swain's release from jail that were committed against people who could identify him.   According to Musacco, this is evidence that Swain has serious difficulty controlling himself.   Musacco described Swain as being “way out of control with regard to his violent propensities toward females.”

Starr's diagnosis is the same as Musacco's:  paraphilia not otherwise specified, antisocial personality disorder, and polysubstance abuse.   She testified that the offenses were happenstance or opportunity crimes, i.e., not predatory, but driven by paraphilia.   As an alternative diagnosis, Starr testified that Swain's behaviors are the result of his antisocial personality disorder.   She testified that both paraphilia and antisocial personality disorder create a risk that Starr will reoffend.   She stated that most people in prison meet the criteria for an antisocial personality disorder, and that for a diagnosis of antisocial personality disorder to be a qualifying disorder under the SVPA, it must be tied to sexually offensive behaviors.   She added that the symptoms of antisocial personality disorder generally do not include recurrent sexual crimes into adulthood.   Both Dr. Starr and Dr. Musacco opined that, based on their assessment of Swain, he was at a high risk of reoffending and committing sexually predatory crimes if released without treatment.

The defense psychologists disagreed that Swain qualified as a sexually violent predator as defined by the SVPA. Dr. Miculian initially concluded that Swain met the SVPA criteria based on his assessment and evaluation that Swain was likely to engage in sexually predatory behavior.   At trial, however, Miculian testified that, after attending a training course, he now believed that Swain's offenses were likely the result of his antisocial personality disorder and not due to any sexual deviance.   He reasoned that there was no evidence that Swain's rapes were an attempt to fulfill a fantasy and no evidence to link Swain's offenses with sexual motivation.   Miculian believed that Swain's antisocial personality disorder might lead to Swain reoffending by engaging in general criminal behavior, including sexual offenses, but he saw no evidence that Swain's criminality was the result of paraphilia.   According to Miculian, Swain did not have a qualifying mental disorder under the SVPA.

Dr. Hupka testified that, in his opinion, Swain did not have a diagnosed mental illness as defined by the SVPA. He diagnosed Swain with antisocial personality disorder and substance abuse disorder.   He testified that persons with antisocial personality disorder often fail to abide by societal rules and have no regard for the pain or suffering of others.   According to Dr. Hupka, Swain's qualifying offenses were the result of his antisocial personality disorder and not of paraphilia.   Dr. Hupka testified that if released, Swain was at high risk of reoffending, but not as the result of a qualifying mental disorder.   Hupka testified that if Swain reoffended by committing any range of criminal offenses, including sexual offenses, it would be the result of his antisocial personality disorder and not because of a qualifying mental disorder such as paraphilia.

Discussion

I. Instruction to jury

Swain contends he was denied due process of law because the jury was not instructed that an antisocial personality disorder is not a diagnosed mental disorder within the meaning of section 6600, subdivision (c).  According to Swain, before an individual can be civilly committed, he or she must be shown to suffer from a mental illness.   He argues that an antisocial personality disorder, which merely predisposes the individual to criminal behavior, is not such a disorder.   Swain claims that, when the jury asked during deliberations whether an antisocial personality disorder qualifies as a mental disease, the court should have instructed them that it did not.

We agree with the People that the issue has been forfeited.   Swain made no request for an amplifying instruction on the issue of whether an antisocial personality disorder can be a qualifying mental disorder and made no objection when the trial court failed to give one.   Generally, if a defendant wishes to amplify an instruction, or believes an instruction given to be insufficient, he or she must raise the issue before the trial court to preserve the issue for appeal.  (People v. Cole (2004) 33 Cal.4th 1158, 1211.)   When the jury sent its question to the court, the prosecutor wanted the court to instruct the jury that an antisocial personality disorder was a qualifying mental disorder under the statute.   Defense counsel objected and the trial court ultimately agreed with Swain.   Rather than answer the question affirmatively, the trial court said it would redirect the jury to the previous instructions concerning what constitutes a qualifying mental disorder under the statute (CALJIC No. 4.19).   Defense counsel agreed this was the appropriate response.

If a defendant objects to the trial court's proposed response to a jury question during deliberations, the objection must be made then or the issue is forfeited on appeal.  (People v. Boyette (2002) 29 Cal.4th 381, 430;  People v. Kageler (1973) 32 Cal.App.3d 738, 746.)   Here, in contrast, defense counsel agreed to the trial court's proposed response.  (See People v. Hamilton (2009) 45 Cal.4th 863, 949-950 [when record reveals court notified defense counsel and defendant of jury's question and that they agreed to court's response, defendant has failed to preserve claim for appeal].)   In any event, since Swain has framed this issue as a constitutional due process claim, and in anticipation of an ineffective-assistance-of-counsel claim, we address the issue on the merits.

It is well recognized that the definition of a qualifying mental disorder under the SVPA covers a wide range of mental impairments, as long as the triggering condition is a volitional impairment that prevents the individual from controlling criminal sexual behavior that poses a serious risk of danger to the public.  (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1152-1153.)   Under the statute, a “diagnosed mental disorder” is defined as a condition affecting the “emotional or volitional capacity” and which “predisposes” the person to commit criminal sex acts “in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)  Although prior qualifying sex crimes are used as evidence in determining whether the person named in the petition is an SVP, the verdict cannot be based on prior crimes absent 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).)

We have found no authority to support Swain's position that an antisocial personality disorder alone cannot form the basis of an SVP commitment, where, like here, the jury makes the required finding that the disorder makes him a danger to the public because, as a result of the disorder, it is likely that he will engage in sexually violent predatory conduct.  (See People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204, 211 [antisocial personality disorder can be basis for extended commitments under Pen.Code § 1026.5].) Our state Supreme Court rejected this argument in Hubbart v. Superior Court, supra, 19 Cal.4th 1138, stating that the SVPA comports with due process because it focuses on the inability to control dangerous conduct caused by a mental disorder-not the mental disorder itself.   It passes constitutional scrutiny for this reason even though it does not restrict the manner in which the underlying impairment is statutorily defined.  (Hubbart v. Superior Court, supra, at p. 1158.)

Swain argues that the United States Supreme Court, in Kansas v. Hendricks (1997) 521 U.S. 346, precluded an antisocial personality disorder from providing the basis of an SVPA commitment because the disorder was not a serious mental disorder or mental abnormality that made it difficult, if not impossible, for the person to control his dangerous behavior.   According to Swain, his diagnosis does nothing more than predict further criminality, which the Supreme Court in Hendricks said could not be the basis of a valid civil commitment.   We do not agree.   Nowhere in the Hendricks decision does the court say that an antisocial personality disorder cannot form the basis of a civil commitment.   What the court does say is that there must be a finding that the mental abnormality or personality disorder precludes the individual from controlling his dangerous behavior beyond just a threat of future criminality.  (Kansas v. Hendricks, supra, at p. 357.)   An instruction that antisocial personality disorder is never a qualifying mental disorder under the statutory definition is an incorrect statement of the law and would properly have been refused if requested.  (People v. Gordon (1990) 50 Cal.3d 1223, 1275, overruled on other grounds in People v. Hamilton, supra, 45 Cal.4th at p. 926.)

The jury in this case was instructed consistent with the law.   A sexually violent predator is defined as one who has been convicted of a sexually violent offense, diagnosed with a mental disorder, and one who, because of the disorder, poses a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory behavior.  “Diagnosed mental disorder” was defined for the jury consistent with the statutory language as a condition that affects 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 instruction further informed the jury that it could not find Swain to be an SVP unless there was evidence of a current diagnosed mental disorder that makes him a danger to others because it is likely as a result of the mental disorder that he will engage in sexually violent predatory criminal behavior.

Additionally, this case was not tried on a theory that it was Swain's antisocial personality disorder diagnosis alone that served as the qualifying mental disorder.   The evidence from all four experts was that Swain's antisocial personality disorder made it difficult for Swain to control his behavior and that, in combination with his past offenses and other factors, this led to a high risk that he would reoffend, committing violent sexual offenses.   Dr. Hupka, the expert offering an opinion most favorable to the defense, testified that, if released, it was likely Swain would commit the same types of offenses he had committed in the past.   Dr. Miculian, the other defense expert, at one time concluded that Swain was at a high risk of reoffending and that his future offenses would most likely be sexually predatory offenses.   Miculian also acknowledged that Swain had committed a high number of sex crimes in a short period of time, and that this could indicate paraphilic behavior, although he stated it could also be part of a general criminality.   The jury was free to accept the conclusions of the prosecution experts over the defense experts, or to find Miculian's first assessment that Swain suffered from paraphilia to be more persuasive than his testimony at trial that Swain did not.   In any event, the evidence established that, in Swain's case, the diagnosis of antisocial personality disorder included the specific risk that Swain would commit sexually violent offenses if released, which is more than a general threat of future criminal behavior.

Whether Swain's antisocial personality disorder was a qualifying mental disorder as defined by the SVPA is a factual conclusion for the jury to make under a proper set of instructions.   Nothing in Kansas v. Crane (2002) 534 U.S. 407 leads us to conclude that Kansas v. Hendricks, supra, 521 U.S. 346 or Hubbart v. Superior Court, supra, 19 Cal.4th 1138, requires a different conclusion.   Although Kansas v. Crane warns that civil commitment may not be used to protect the public from general criminality, the opinion affirmed a state's right to civilly commit individuals where (1) there is proof that these individuals pose a real threat to public safety as a result of a mental disorder recognized by the psychiatric profession, and (2) there is a serious lack of ability to control behavior and a high risk that the individual will commit sexually violent offenses if released.  (Kansas v. Crane, supra, at pp. 412-413.)

In our opinion, there is no legal authority to support Swain's position that an antisocial personality disorder may not as a matter of law serve as a qualifying mental disorder under the SVPA. We conclude the jury was properly instructed on the definition of a qualifying mental disorder.

II. Due process

Swain claims that the SVPA as modified denies him due process of law under both the state and federal Constitutions because the statute as amended eliminated certain procedural safeguards, including the limited duration of the commitment.

The issues raised in Swain's challenge on due process grounds have recently been decided against Swain in People v. McKee, supra, 47 Cal.4th 1172.   We need not expand upon the analysis provided in the court's opinion in McKee.   An initial civil commitment for an indefinite term does not violate due process merely because it is indefinite.  (See Jones v. United States (1983) 463 U.S. 354, 368 [statute providing for indefinite commitment of criminal defendant acquitted by reason of insanity and requiring defendant to prove by preponderance of evidence that he is no longer insane or dangerous in order to be released does not violate due process];  see also Kansas v. Hendricks, supra, 521 U.S. 346 [upholding Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that committed person is no longer dangerous];  see also Foucha v. Louisiana (1992) 504 U.S. 71, 77 [indefinite civil commitment consistent with due process if commitment statute provides fair and reasonable procedures so that person is held only as long as he is both mentally ill and dangerous].)

A commitment under California's SVPA is “only potentially indefinite” due to the requirement of an annual review.  (Kansas v. Hendricks, supra, 521 U.S. at p. 364.)   Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (§ 6605, subd. (a).)  The results are to be filed with the court and served on the committed person.  (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for this type of discharge or conditional release is to be filed. (§ 6605, subd. (b).)  At the hearing on this petition, the committed individual has the right to appointed counsel, the right to a jury trial, and the right to an appointed expert.   (Id., subd. (d).)  In addition, the state has the burden of proving beyond a reasonable doubt that the SVP is to remain committed.  (Ibid.)

If at any time the Department has reason to believe the person committed is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).)  If the Department does not certify that the person should be discharged or conditionally released, the committed person can file a petition seeking conditional release or discharge. (§ 6608, subd. (a).)  Section 6608, subdivision (i), provides that, in any hearing on a petition filed under this section, the petitioner has the burden of proof by a preponderance of the evidence.   The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California's scheme (§ 6608) assures that an individual remains committed only as long as he or she meets the statutory definition of an SVP and that constitutional requirements are satisfied.  (See Kansas v. Hendricks, supra, 521 U.S. at pp. 364-365;  People v. McKee, supra, 47 Cal.4th at p. 1193.)

Swain also argues that he was denied due process because he was not provided notice that the prosecution was seeking an indeterminate term instead of a two-year commitment.   This argument fails because the petition did not mention a two-year term and was filed in 2007 after the amendments to the SVPA became effective.   Therefore, the petition's reference to section 6600 et seq. placed Swain on notice that the prosecutor was seeking an indeterminate term of commitment.

III. Administrative Procedures Act

Swain also contends that the order of commitment is invalid because it was obtained by the use of evaluations procured by the Department in violation of the Administrative Procedures Act (APA).  (Gov.Code, § 11340 et. seq.)   Government Code section 11340.5, subdivision (a), of the APA provides that “[n]o state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in [Government Code] Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.”   The Office of Administrative Law is charged with enforcing this requirement.  (Gov.Code, §§ 11340.2, 11340.5, subd. (b).)

The SVPA requires that a suspected SVP undergo two psychological evaluations conducted pursuant to a protocol established by the Department.   Evaluations concluding that an individual is an SVP lead to what is essentially a probable cause hearing, and ultimately to trial. (§ 6601, subds.(c) & (d);  Cooley v. Superior Court (2002) 29 Cal.4th 228, 247.)   The Office of Administrative Law found that the protocol was an “underground regulation” and unlawful.  (2008 OAL Determination No. 19, Aug. 15, 2008 (OAL file No. CTU 2008-0129-01) < http://www.oal.ca.gov/res/docs/pdf/determinations/2008/2008_OAL_Determination_ 19.pdf> [as of Feb. 18, 2010].)  “ ‘An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA]. [Citation].’ ”  (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429.)   Although we are not bound by the Office of Administrative Law's conclusion that the Department of Labor's protocol is an illegal underground regulation, our review is generally deferential.  (See Grier v. Kizer (1990) 219 Cal.App.3d 422, 428, disapproved on other grounds in Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 577.)   We will assume without deciding that the protocol is an underground regulation in violation of the APA.

Even so, Swain is unable to show any prejudice from use of the non-APA-compliant evaluation protocol.   The protocol is statutorily mandated for use in the administrative actions leading up to the filing of an SVP petition (§ 6601, subds.(c) & (d)) and was used in this case as the foundation for the expert opinion that Swain was an SVP as defined by the SVPA. The evaluations play a significant part in the trial process, as well as in the probable cause hearing.  (People v. Scott (2002) 100 Cal.App.4th 1060, 1063 [evaluation is collateral procedural condition designed to ensure SVP proceedings initiated only when there is substantial factual basis for doing so, but after petition is filed issue becomes whether there is evidence that alleged SVP is person likely to engage in sexually violent predatory criminal behavior].)   Swain, however, must still show prejudice.

Article VI, section 13, of the California Constitution provides that a judgment cannot be set aside “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”   Error is reversible only where it affects the substantial rights of the parties, a party has sustained a substantial injury, and a different result would have been probable if the error had not occurred.  (See also Code Civ. Proc., § 475;  Sabek, Inc. v. County of Sonoma (1987) 190 Cal.App.3d 163, 168 [anyone who seeks reversal must show error was prejudicial];  accord, People v. Medina (2009) 171 Cal.App.4th 805 [claim that protocol's status as underground regulation undermines legitimacy of SVP commitment reviewed for prejudice].)   Prejudice is not presumed.  (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)

There is no reason to believe that a dismissal of the petition on the grounds that the protocol was not APA compliant would have resulted in an abandonment of the commitment proceedings.   There is also no evidence to support a conclusion that, had Swain been evaluated under an APA-compliant protocol, he would have been found not to be an SVP. The Office of Administrative Law's determination includes a caveat that its review of the protocol was only for the purpose of deciding whether it was a regulation within the meaning of the APA and that it was not evaluating the advisability or wisdom of the protocol itself.  (OAL Determination No. 19, supra, at p. 1.)

There are evaluations under the Department protocol that do not result in a finding that an individual is an SVP. The statute anticipates a disagreement by evaluators using the same protocol for assessment.   Section 6601, subdivision (e), states that if only one of the two evaluators concludes that a person meets the criteria for commitment under the SVPA, the Department may not request a petition for commitment under the SVPA. There is no suggestion in the record that the evaluators felt constrained by the protocol and would have concluded differently had they not been required to follow it.   There is no showing that, had the protocol been submitted to APA review, it would have been changed or that any changes would affect Swain's personal standing as an SVP.

In this case, all four of the experts testified that Swain suffered from a mental disorder-antisocial personality disorder-and all four testified that Swain was at high risk of reoffending.   Their testimony differed only on whether Swain also suffered from paraphilia and whether Swain's risk of reoffending was for predatory sex offenses alone or general criminality.   The record is simply insufficient to show that a different result was probable had the Department's protocol been vetted through APA procedures.  (People v. Medina, supra, 171 Cal.App.4th at p. 820.)

IV. Ex post facto, double jeopardy, cruel and unusual punishment claims

Swain contends that a petition seeking an indeterminate term is constitutionally infirm because commitment for an indeterminate term violates the constitutional prohibition against double jeopardy, constitutes cruel and unusual punishment, and violates ex post facto rules.   It is well established now that a commitment under the SVPA, even as amended, is civil in nature and does not amount to punishment.  (See People v. McKee, supra, 47 Cal.4th at pp. 1195-1195 [rejecting Swain's argument that the amendments to SVPA by Prop. 83 and Senate Bill No. 1128 render the statutory scheme punitive];  Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1179 [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns];  see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [ex post facto clause prohibits only those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts”].)

Since the SVPA, as amended, is not punitive in nature, the constitutional provisions cited by Swain that apply only to criminal cases afford him no relief.

V. Single-subject rule

Swain contends that Proposition 83 is invalid because it violates the single-subject rule contained in article II, section 8, subdivision (d), of the California Constitution, which provides that “[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”

An initiative does not violate the single-subject requirement if all of its parts are reasonably germane to each other and to the general objective of the initiative.  (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157;  Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140 which combined such disparate subjects as term and budgetary limitations and pension restrictions].)   Proposition 83 addressed a number of civil and criminal statutes, but all were related to the punishment and control of sexual predators.  (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83;  see also Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1282;  Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2010 supp.) foll. § 6604, p. 163;  Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff.Nov. 8, 2006).)

The single-subject rule does not require that the collateral parts of an initiative be equivalent, for example, that they be all civil, completely criminal, or only substantive or procedural.   Nor does it mandate that the collateral parts be tied directly in application.   The only requirement is that the provisions work together to further the initiative's stated purpose.  (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 [upholding Prop. 115 in single-subject challenge despite sweeping changes affecting various aspects of the criminal justice system];  Brosnahan v. Brown (1982) 32 Cal.3d 236, 247 [upheld Prop. 8];  Manduley v. Superior Court (2002) 27 Cal.4th 537, 573 [upheld Prop. 21].)   We conclude that all of the component parts of Proposition 83 bear a reasonable relationship to its stated purpose.

VI. First Amendment right to petition

Swain's final constitutional challenge to the SVPA is his assertion that the statute limits his right to seek redress of grievances in the courts in violation of the First Amendment.   Our federal Constitution requires that defendants have “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.”  (Bounds v. Smith (1977) 430 U.S. 817, 825, overruled on other grounds in Lewis v. Casey (1996) 518 U.S. 343.)

Swain argues that, under the SVPA, he may only file a petition for release with the concurrence of the director of the Department of Mental Health, and thus the Department has set itself up as an impermissible “gatekeeper” between the SVP and the courts.   He argues that sections 6608 and 6605 contain procedural bars that limit meaningful access to the courts, including the trial court's ability to deny summarily the petition without holding a hearing if it finds the petition frivolous, and placing the burden of proof on the SVP.

We disagree.   An SVP may bring a petition for release even without the concurrence of the Department. (§ 6608, subd. (a).)  When this occurs, there is a threshold showing required before a full evidentiary hearing is granted.   A judicial officer is charged with determining whether the petition is frivolous.   The SVP has the assistance of counsel to make his initial showing. (§§ 6608, subd. (a), 6605, subd. (a).)  This process does not deny access to the courts;  to the contrary, it facilitates it.   Further, the preponderance standard imposed in SVP cases is the standard imposed in the majority of civil actions. (§ 6608, subd. (i).)

The cases cited by Swain are distinguishable and involve cases in which a prisoner's ability to access the courts was restricted by institutional rules or deficiencies.   This is not the case under the SVPA. In Ex parte Hull (1941) 312 U.S. 546, prison officials were intercepting petitions deemed not in proper form and returning them to the prisoner.   In Lewis v. Casey, supra, 518 U.S. 343, 351, the court found meaningful access denied when prison authorities failed to provide adequate assistance of counsel or other help in preparing prisoners' petitions and did not provide adequate access to law libraries.   The same was true in Bounds v. Smith, supra, 430 U.S. 817.   In contrast, the SVPA facilitates access to the courts.   Further, a committed person always has the right to seek release by way of a petition for writ of habeas corpus.  (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.)

Finally, there is no showing that Swain has been denied access to the courts.   As the People correctly point out, there can be no constitutional challenge to a statute based on a hypothetical situation that has not yet occurred.   (People v. Hsu (2000) 82 Cal.App.4th 976, 982.)

VII. Equal protection

Swain's final argument has been decided in his favor by our state Supreme Court, in People v. McKee, supra, 47 Cal.4th at pp. 1196-1208.   Swain contends that he has been denied equal protection because SVP's receive treatment disparate from other similarly situated persons, specifically, mentally disordered offenders (MDO) subject to commitment under the Mentally Disordered Offenders Act (Pen.Code, § 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity (NGI).  (Pen.Code, § 1026 et. seq.).

In order to show that equal protection has not been afforded, a claimant must first show that the state has adopted a classification affecting two or more similarly situated groups in an unequal manner.   The test is not whether persons are similarly situated for all purposes, but whether they are similarly situated for purposes of the law challenged.  (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253.)

Relying on In re Moye (1978) 22 Cal.3d 457 and In re Smith (2008) 42 Cal.4th 1251, the court in McKee found that SVP's and MDO's are similarly situated.   The court acknowledged that MDO's and SVP's do not share identical characteristics, but concluded that MDO's and SVP's are similarly situated for equal protection purposes because both classes of individuals are involuntarily committed to protect the public from those who are dangerously mentally ill.   (People v. McKee, supra, 47 Cal.4th at p. 1203.)

The court also concluded that the two classes of individuals are treated differently under the commitment statutes.  “SVP's under the amended [SVPA] are given indeterminate commitments and thereafter have the burden to prove they should be released (unless the DMH authorizes a petition for release).   In contrast, an MDO is committed for one-year periods and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.”  (People v. McKee, supra, 47 Cal.4th at p. 1202.)   In response to the prosecution's argument that there are differences in the two classes of individuals, the court said, “identification of the ․ differences does not explain why one class should bear a substantially greater burden in obtaining release from commitment than the other.”  (Id. at p. 1203.)   Instead, the court concluded that, because the two classes of individuals are similarly situated for equal protection purposes, they can be treated differently with respect to obtaining release from the involuntary commitment only upon proper justification, which had not yet been provided.  (Id. at p. 1207.)

The court explained that, when society varied the standard and burden of proof for SVP's in the manner accomplished in Proposition 83, it did so because it believed that “the risks involved with erroneously freeing SVP's from their commitment are significantly greater than the risks involved with freeing MDO's.” (McKee, supra, 47 Cal.4th at p. 1204.)   The court, however, concluded there was no proof to substantiate this belief.   The court rejected the prosecution's attempt to establish this belief as fact by referring to the language in Proposition 83's preamble, concluding that legislative fact-finding must be based on substantial evidence.   The distinctions drawn in Proposition 83 and by the SVPA between MDO's and SVP's must be founded on fact.   The record in McKee contained no justification for the disparate treatment of MDO's and SVP's.

The court in McKee also found merit in the companion argument that NGI's and SVP's are similarly situated, yet are treated differently under their respective civil commitment statutes.  (People v. McKee, supra, 47 Cal.4th at p.1203.) As with MDO's, the McKee court concluded, “the People have not yet carried their burden of justifying the differences between the SVP and NGI commitment statutes.”  (Id. at p. 1207.)   The court went on to say that it was not concluding that the People could not meet its burden of showing that the differential treatment of SVP's is justified, only that it had not yet done so.  (Id. at pp. 1207-1208.)   It remanded the matter to the trial court to determine whether the People can demonstrate “the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment.”  (People v. McKee, supra, 47 Cal.4th at p. 1208.)

McKee does not explain whether the justification will be a one-time finding, forever applicable to all SVP's committed under the statutory scheme, or whether in every case there must be justification for treating a particular SVP differently from MDO's and NGI's. The opinion appears to contemplate a categorical justification with its citation in footnote 9 to Department of Justice studies and the like.   However, it also suggests in footnote 10 that there may be classes of SVP's that pose a greater risk to particularly vulnerable victims, such as children.  (People v. McKee, supra, 47 Cal.4th at p. 1208, fn. 10.)   In any event, until we receive further direction from the state Supreme Court, we remand to the trial court to determine whether sufficient justification has been shown for treating SVP's differently than MDO's and NGI's under the guidance provided in McKee.

DISPOSITION

The judgment is reversed and remanded with directions to the trial court to hold proceedings and to resolve the issue of whether the People can prove a factually based justification for treating SVP's differently than MDO's and NGI's.

Wiseman, Acting P.J.

WE CONCUR:

Dawson, J.

Kane, J.

FOOTNOTES

FN1. All references are to the Welfare and Institutions Code unless otherwise noted..  FN1. All references are to the Welfare and Institutions Code unless otherwise noted.

FN2. In September 2006, Senate Bill No. 1128 amended the SVPA primarily by changing the former two-year civil commitment for an individual found to be an SVP to an indeterminate-term commitment.   There were several significant procedural changes implemented by the 2006 amendments as well.   (Stats.2006, ch. 337, §§ 53-62, hereafter Senate Bill No. 1128.)   Later, the voters approved Proposition 83 (“Jessica's Law”), which also amended the SVPA and several other statutes addressing violent sex offenses.  (See Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2010 supp.) foll. § 6604, p. 163;  Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff.Nov. 8, 2006).)   Like Senate Bill No. 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment..  FN2. In September 2006, Senate Bill No. 1128 amended the SVPA primarily by changing the former two-year civil commitment for an individual found to be an SVP to an indeterminate-term commitment.   There were several significant procedural changes implemented by the 2006 amendments as well.   (Stats.2006, ch. 337, §§ 53-62, hereafter Senate Bill No. 1128.)   Later, the voters approved Proposition 83 (“Jessica's Law”), which also amended the SVPA and several other statutes addressing violent sex offenses.  (See Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2010 supp.) foll. § 6604, p. 163;  Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff.Nov. 8, 2006).)   Like Senate Bill No. 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment.