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Court of Appeal, First District, Division 5, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent.

Althor CAIN et al., Real Parties in Interest. The PEOPLE, Petitioner, v. THE SUPERIOR COURT of San Francisco County, Respondent.

Kinn S. WEBER et al., Real Parties in Interest. The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent. Robert C. WHITE et al., Real Parties in Interest.

Nos. A074501, A074644, A075283.

Decided: October 01, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Senior Assistant Attorney General, Morris Lenk, Bruce M. Slavin, Supervising Deputy Attorney General, for Appellant. Brendan Conroy, San Francisco, Jeff Brown, Public Defender, Earnest Llorente, Deputy Public Defender, for Real Parties in Interest.

In these consolidated writ proceedings we hold that the Sexually Violent Predators Act (Welf. & Inst.Code, div. 6, pt. 2, ch. 2, art. 4, §§ 6600 et seq.) 1 is not an ex post facto law.

The People seek writ review of orders of the superior court dismissing petitions for commitment under the Act. The People filed the petitions against real parties in interest, ten prisoners who have been convicted of sexually violent felonies and are about to complete their sentences.   The petitions allege that real parties are sexually violent predators, which means, inter alia, that each real party has a diagnosed mental disorder which makes it likely he will commit sexually violent felonies if released.   If the petitions are granted, real parties will be civilly committed as sexually violent predators and confined for treatment.   Real parties moved to dismiss the petitions, arguing the Act is an ex post facto law because it allows for physical confinement beyond the length of their criminal sentences.   The superior court agreed and dismissed the petitions.   We disagree and grant the peremptory writ.


Procedural Background and Facts

The Act became law in 1995 as a legislative response to the problem of the sexually violent predators.   In the Act's uncodified purpose clause, “The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators ․ have diagnosable mental disorders [and] 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․  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.  [¶] ․ It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes.”  (Stats.1995, ch.763, § 1, No. 10 West's Cal. Legis.   Service, p. 4611.)

 The Act defines a sexually violent predator in terms of both prior sexual offenses and present mental illness.   A predator is a person who (1) has been convicted of a sexually violent offense against two or more victims and has received a determinate prison sentence, and who (2) has a diagnosed mental disorder that makes the person “a danger to the health and safety of others in that it is likely that [the person] will engage in sexually violent criminal behavior.” (§ 6600, subd. (a).) 2

A screening process to determine whether an inmate is a predator begins at least six months prior to the scheduled date for release from prison. (§ 6601, subds.(a) & (b).) 3  If the Director of the Department of Corrections determines that a prisoner may be a predator, the director must refer the prisoner for screening and psychiatric evaluation by two practicing psychiatrists or psychologists designated by the Department of Mental Health. (§ 6601, subds.(a), (b), (c) & (d).)   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” (§ 6601, subd. (d)), the Department of Mental Health transmits a request for a petition for commitment to the county in which the prisoner was convicted. (§ 6601, subds.(d), (h) & (i).) 4  Copies of the evaluation reports and other supporting documents are sent to that county's district attorney or county counsel. (§ 6601, subds.(d) & (i).)   If the attorney for the county concurs in the request, a petition for commitment is duly filed in that county's superior court. (§ 6601, subd. (i).)

Upon the filing of the petition, the superior court is obligated to commence a process to test the petition for probable cause.   The court “shall” review the petition for commitment and “shall” determine whether “there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.” (§ 6602.)   The court makes the probable cause determination after a hearing at which the alleged predator has the right to the assistance of counsel. (§ 6602.) 5  If the court finds no probable cause, the court must dismiss the petition and the prisoner reports to parole. (§ 6602.)   If the court finds probable cause, the court sets the petition for trial on the issue whether the person “[I]s, by reason of 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 release. (§ 6602.)   The alleged predator must remain in custody in a secure facility until trial is completed. (§ 6602.)

At trial, the alleged predator is entitled to a jury, to the assistance of counsel and experts, to appointed counsel if indigent, and to access to relevant medical and psychological reports. (§ 6603.)   The jury (or, if waived, the court) must determine beyond a reasonable doubt whether the alleged predator is in fact a sexually violent predator. (§ 6604.)   If there is a reasonable doubt on the part of the trier of fact, the prisoner is released at the expiration of his or her sentence.   If the prisoner is found to be a predator, he or she must be civilly committed to the custody of the Department of Mental Health for two years, subject to annual review and extension of commitment if the diagnosed mental disorder, and consequent danger to the community, persists. (§§ 6604 & 6605.)   The committed predator has the right to petition for conditional release. (§ 6608.)   The committed predator also has a right to treatment. (§ 6606, subd. (a).)  However, “Amenability to treatment is not required for a finding that any person is [a sexually violent predator], nor is it required for treatment of that person.” (§ 6606, subd. (b).)  The right to treatment does not mean such treatment must be potentially successful. (§ 6606, subd. (b).)

In the matters now before us, real parties were evaluated pursuant to section 6601 as potential predators, and petitions for commitment were duly filed in respondent superior court.   Real parties demurred to the petitions on the ground the Act was unconstitutional.   Real parties raised several arguments, but the trial court limited itself to the issue of whether the Act is an ex post facto law by increasing the period of physical confinement beyond the criminal sentence.   The court declared the Act unconstitutional because it did not require amenability to treatment as a precondition to commitment.   The court apparently reasoned that if a sexually violent predator was not amenable to treatment, his continued confinement beyond the length of his criminal sentence was not for curative purposes but punitive, and therefore increased punishment beyond that enforceable at the time the underlying crime was committed.

The People had no information regarding amenability of treatment, no doubt because amenability is specifically irrelevant, by statute, to the predator determination.   Accordingly, the superior court dismissed the petitions for commitment.   The People sought writ review.   We stayed the orders of dismissal and directed the superior court to proceed, without regard to amenability to treatment, with the probable cause determinations required by the Act. (§§ 6601.5 & 6602.)   We solicited opposition from real parties and issued an order to show cause in lieu of an alternative writ.   Having heard oral argument, we uphold the Act and issue the peremptory writ.6



The People contend the superior court erred by accepting real parties' constitutional challenge to the Act. We agree, and conclude the Act is not an ex post facto law.

 The Act, like all legislation, is presumed constitutional and may not be struck down in the absence of clear and unmistaken constitutional infirmity.  (People v. Jackson (1980) 28 Cal.3d 264, 317, 168 Cal.Rptr. 603, 618 P.2d 149, cert. den. sub nom. Jackson v. California (1981) 450 U.S. 1035, 101 S.Ct. 1750, 68 L.Ed.2d 232.)   If the Act suffers from the infirmity of being an ex post facto law, it must do one of three things:  “[P]unish[ ] as a crime an act previously committed, which was innocent when done;  ․ make [ ] more burdensome the punishment for a crime, after its commission, or ․ deprive[ ] one charged with crime of any defense available according to law at the time when the act was committed, ․” (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (Collins ), quoting Beazell v. Ohio (1925) 269 U.S. 167, 169–170, 46 S.Ct. 68, 68, 70 L.Ed. 216.) 7

 An ex post facto law is not one which merely “disadvantages” the defendant retroactively.   There has been some confusion in the law, traceable to the discussion of “disadvantage” in three decisions of the United States Supreme Court, including the oft-cited Weaver v. Graham (1981) 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17.   Many courts and attorneys, including counsel for real parties herein, contend that retroactive “disadvantage” is a component of an ex post facto law.   The United States Supreme Court, however, has corrected its own course deviation and has firmly rejected any focus on “disadvantage” in an ex post facto analysis.  “After Collins supra, 497 U.S. 37, 110 S.Ct. 2715, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ․ but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.”  (Cal. Dept. of Corrections v. Morales (1995) 514 U.S. 499, ––––, fn. 3, 115 S.Ct. 1597, 1602, fn. 3, 131 L.Ed.2d 588, 595, fn. 3, italics original (Morales );  see Pro–Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1683, 54 Cal.Rptr.2d 600.)

 The People contend the Act cannot be an ex post facto law because it is neither retroactive nor penal, and we agree.   The Act does not retroactively increase the sentence for real parties' original sex offenses:  the Act imposes a mental health commitment for a present diagnosed mental illness which makes it likely the predator will commit future sexually violent offenses.   The Act specifically states that, at trial, “Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a).)  In other words, a jury cannot impose a civil commitment solely based on past criminal conduct.8  In upholding a similar statute as not an ex post facto law, the Supreme Court of Washington ruled “The sexually violent predator [s]tatute is not concerned with the criminal culpability of petitioners' past actions.   Instead, it is focused on treating petitioners for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality.”   (In re Young (1993) 122 Wash.2d 1, 857 P.2d 989, 997.)

 Likewise the Act is not penal.   The Act imposes a civil commitment for treatment of a diagnosed mental disorder.   Mental health commitments are generally considered to be not penal, but curative and civil.   (See, e.g., Conservatorship of Hofferber (1980) 28 Cal.3d 161, 181–182, 167 Cal.Rptr. 854, 616 P.2d 836;  People v. Juarez (1986) 184 Cal.App.3d 570, 575, 229 Cal.Rptr. 145;  Stickel v. Superior Court (1982) 136 Cal.App.3d 850, 853, 186 Cal.Rptr. 560.)   In any given specific case the question whether a statute is criminal or civil is a matter of statutory interpretation.  (See United States v. Ward (1980) 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742.)

In Allen v. Illinois (1986) 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (Allen ), the United States Supreme Court construed the Illinois Sexually Dangerous Persons Act to be civil, not criminal, for purposes of the Fifth Amendment.   The Illinois statute is very similar to the Act now before us.   Both laws impose a civil commitment for the purpose of treatment of a mental illness in a psychiatric facility.   Both require both a past conviction of sexual assault plus a present mental disorder creating a propensity to commit future sexual offenses.   Both provide that the person be committed for only so long as they are mentally ill.   Both allow the right to petition for release.

 Real parties' attempt to distinguish Allen fails;  in particular, the fact that the sexual predator commitment presupposes a conviction for a criminal offense does not make the Act itself a criminal law.   Although the Illinois law also requires proof of at least one act of sexual assault, “[T]hat antecedent conduct is received not to punish past misdeeds, but primarily to show the accused's mental condition and to predict future behavior.”  (478 U.S. at p. 371, 106 S.Ct. at p. 2993.)   The Supreme Court of Washington followed Allen and concluded the Washington sexual predator law was for the purpose of treatment and was not penal.  (In re Young, supra, 857 P.2d at pp. 997–998.) 9  A similar conclusion has been reached by the Supreme Court of Wisconsin.  (State v. Carpenter, supra, 541 N.W.2d at pp. 113–114.)

Real parties rely heavily on People v. Gibson (1988) 204 Cal.App.3d 1425, 252 Cal.Rptr. 56 (Gibson ).  Gibson found the mentally disordered offender provisions of Penal Code sections 2962 et seq. to be ex post facto.   At the time Gibson was decided, those statutes provided for mandatory confinement in a mental hospital as a condition of parole for certain mentally ill offenders whose mental illness contributed to their original offense.  Gibson found the provisions penal and thus their retroactive application unconstitutional.   We need not discuss in detail the statutory scheme (since amended) at issue in Gibson.   That scheme, contrary to that of the Act, was expressly declared to be solely for the protection of the public.   The scheme had considerably more penal features than the one now before us, including additional incarceration stemming from parole revocation based on the defendant's failure in a treatment plan.  (Gibson, supra, 204 Cal.App.3d at p. 1434, 252 Cal.Rptr. 56.)   The Gibson court was also concerned about the potential of a lifetime commitment without any showing the offender was dangerous.  (Id. at p. 1435, 252 Cal.Rptr. 56.)  Gibson is distinguishable.

 Finally, we deal with the question of amenability to treatment.   The superior court apparently presumed that some real parties may not be amenable to treatment, and that the lack of amenability transmutes their continued confinement from curative to punitive, and thus from civil to penal.   Circumstances specific to an individual, however, are irrelevant to an ex post facto analysis, which focuses on the law itself.  (In re Stanworth (1982) 33 Cal.3d 176, 187, 187 Cal.Rptr. 783, 654 P.2d 1311;  cf.  California Dept. of Corrections v. Morales, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1605.)   Individual amenability to treatment is also specifically made irrelevant to the definition of a predator under the Act. (§ 6606, subd. (b).)  Furthermore, the lack of amenability to treatment does not render mental health commitments unconstitutional if the confinement is necessary for the protection of others.  (See Bailey v. Gardebring (8th Cir.1991) 940 F.2d 1150, 1155.)   If amenability to treatment is required for custody under a mental health civil commitment, the curable may be confined but the incurable—perhaps the most dangerous—must, under the real parties' reasoning, be released.   This is untenable and inconsistent with existing law.   The right to treatment is not a right to success.   Given the current state of psychiatry, a mental health commitment cannot be invalidated because the person committed may not ever be cured.  (O'Connor v. Donaldson (1975) 422 U.S. 563, 587–589, 95 S.Ct. 2486, 2499–2500, 45 L.Ed.2d 396 (Burger, C.J., concurring);  State v. Post, supra, 541 N.W.2d at p. 124.) 10

We note in closing that the People are free to initiate commitment proceedings under the Lanterman–Petris–Short Act (Welf. & Inst.Code, div. 5, pt. 1, ch. 1, §§ 5000 et seq.) against any state prisoner due to be released into the community.   The Lanterman–Petris–Short Act provides for the civil commitment of a person who, because of a mental disorder, is gravely disabled or a danger to himself or others (§ 5150);  the statute has passed constitutional muster.  (See Thorn v. Superior Court (1970) 1 Cal.3d 666, 83 Cal.Rptr. 600, 464 P.2d 56 3 Witkin, Cal. Procedure (3d ed 1985) Actions, § 31, pp. 61–62.)   The sexually violent predator proceedings are simply an extension of the police power of civil commitment into a narrower, more well-defined context for both the protection of society and the treatment of a mentally disordered criminal with probable proclivities to reoffend.   Rather than await a reoffense and offer condolences to the family of the victim, the People are not only ensuring that predatory, violent sexual offenders be removed from society, but at the same time ensuring that they receive whatever treatment psychiatry can offer for their maladies.   This seems to us an entirely reasonable approach to those that prey upon the innocent.



The Sexually Violent Predators Act is not an ex post facto law.   Accordingly, let a peremptory writ of mandate issue commanding respondent superior court to set aside its orders dismissing the petitions for commitment, and to proceed further with the commitment proceedings under the Act as constitutional legislation.


1.   All references to “the Act” are to the Sexually Violent Predators Act. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   All references to sections 6600, 6601 and 6601.5 are to those sections as amended by Statutes 1996, chapter 462, sections 4, 5 and 6, No. ––– West's California Legislative Service, pages _ (eff. Sept. 13, 1996).A “sexually violent offense” is further defined as any one of several enumerated sex offenses, “when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person ․” (§ 6600, subd. (b).)  For purposes of the Act, a conviction of a sexually violent offense includes a finding of not guilty by reason of insanity, a conviction leading to a finding that the defendant is a mentally disordered sex offender, and a conviction in another state of an offense including all the elements of any of the sex offenses enumerated in the Act. (§ 6600, subd. (a).)“Diagnosed mental disorder” is defined 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).)“ ‘Predatory’ means an act is 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).)

3.   Under certain circumstances the director may commence the evaluation process less than six months prior to the release date. (§ 6601, sub. (a).)

4.   No request for a petition may be filed unless two mental health professionals agree.   If the two professionals designated by the Department of Mental Health do not agree, two independent professionals are appointed (§ 6601, subd. (e)), both of whom must concur in the filing of a request (§ 6601, subd. (f)).

5.   All references to sections 6601.3 and 6602 are to those sections as amended by Statutes 1996, chapter 4, sections 2 and 4, No. ––– West's California Legislative Service, pages _ (eff. Jan. 25, 1996).The Act also provides for urgency review of probable cause.   The Board of Prison Terms may order that a prisoner remain in custody for predator screening, but no longer than 45 days past his scheduled release date. (§ 6601.3, subd.(a).)  If the hold placed on the prisoner by the board per section 6601.3, subdivision (a) will expire before a probable cause hearing can be conducted under section 6602, the agency bringing the petition may request urgency review.   Upon such a request, a judge of the superior court shall review the petition and determine whether it contains sufficient facts which, if true, “would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior” upon release. (§ 6601.5, subd. (a).)  If the judge determines that the petition, on its face, supports a finding of probable cause, the judge “shall” order that the person be detained in a secure facility pending a section 6602 probable cause hearing, which must be held within ten days of the detention order. (§ 6601.5, subd. (a).)

6.   We briefly discuss a few procedural matters.   The ten petitions for commitment were consolidated in the trial court in three groups of four, three, and three, respectively.   The People brought three writ petitions, one from the ruling in each group.   These writ petitions have been consolidated in this court on our own motion.   Real parties in interest are all represented by the same counsel.We need not decide whether the dismissal orders are appealable or reviewable in ordinary circumstances by extraordinary writ.   The People brought a writ to seek appellate review of a matter of urgent statewide significance.   Real parties do not object procedurally to the People's choice of writ review over any remedy by appeal.   Under the circumstances of this test case, we review the merits of the People's petitions for extraordinary writ.

7.   The ex post facto clauses of the federal and the California constitutions are analyzed identically.  (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)

8.   So too, the mental health evaluations in the pre-petition screening process takes into account the prisoner's institutional history, as well as present mental disorder. (§ 6601, subds. (b) & (c).)

9.   The Federal District Court for the District of Washington disagreed with the Supreme Court of Washington's decision in In re Young and issued a writ of habeas corpus.  (Young v. Weston (W.D.Wash.1995) 898 F.Supp. 744 (Young ).)   The federal court invalidated the Washington sexual predator law on several grounds, including ex post facto, concluding the law was both penal and a retroactive disadvantage to the defendant.   In its ex post facto analysis, the federal court concluded the Washington law was penal despite the fact that whether a statute is civil or criminal is a question of statutory interpretation;  despite the fact that the Washington Supreme Court had interpreted the law as civil;  and despite the fact that a federal court is bound by a state court's interpretation of the language of its own statutes and the legislative intent behind them.  (Parrish v. State of Colo. (10th Cir.1996) 78 F.3d 1473, 1478.)   The federal court in Young also proceeded on a legal analysis and certain assumptions of fact which are not supportable.   The court improperly followed the Weaver v. Graham “disadvantage” test, despite the fact that Morales had clarified the law in April of 1995, four months before the federal court in Young filed its opinion.   The federal court in Young also assumed that punishment was the primary intent behind the Washington law, based on the unwarranted assumption that prisoners suffer from their mental disorders from the moment of imprisonment, and are never treated until they serve their sentences and are found predators.   The federal court purported to rely on “common sense” (Young, supra, 898 F.Supp. at p. 753), but made no reference to any fact placed before it in consonance with the rules of evidence.With regard to its ex post facto analysis, the federal court decision in Young is out of synch with the decisions of the several states, which have generally upheld their sexual predator laws against constitutional attack.  (See State v. Post (1995) 197 Wis.2d 279, 541 N.W.2d 115;  State v. Carpenter (Wis.1995) 541 N.W.2d 105;  In re Blodgett (Minn.1994) 510 N.W.2d 910;  In re Young, supra, 122 Wash.2d 1, 857 P.2d 989.)   The lower federal court decision in Young is also not binding on state courts, as the appellate courts of Washington have since noted.   (Matter of Paschke (Div. 3 1996) 80 Wash.App. 439, 909 P.2d 1328, 1333, fn. 5 [“The district court's determination [in Young ] is not binding on Washington courts.  [Citation.]”].)Any vulnerability of sexual predator statutes appears to involve not an ex post facto problem but the requirement of mental illness, as opposed to a personality disorder, as a precondition to commitment.   Apart from its ex post facto analysis, the federal court in Young found the Washington law violated substantive due process by not requiring mental illness.  (898 F.Supp. at pp. 748–751.)   The Kansas Supreme Court reached a similar conclusion.  (Matter of Care and Treatment of Hendricks (1996) 259 Kan. 246, 912 P.2d 129, cert. granted sub nom. Kansas v. Hendricks (1996) 517U.S. 1153, 116 S.Ct. 1540, 134 L.Ed.2d 643 [Kansas sexual predator law invalidated by state supreme court on the ground that unlike some other predator laws it did not require an existing mental illness as a predicate of confinement.].) Although the issue is not now before us, we assume that to pass due process muster the Act's requirement of a “mental disorder” must be construed as a requirement of mental illness as opposed to a personality disorder or mental abnormality.   The distinction is critical to a substantive due process analysis of civil commitment.   Confinement under a civil commitment requires dangerousness coupled with mental illness.   A mere “personality disorder” or “mental abnormality” is generally insufficient.  (See Foucha v. Louisiana (1992) 504 U.S. 71, 75–83, 112 S.Ct. 1780, 1782–1787, 118 L.Ed.2d 437;  Young, supra, 898 F.Supp. at pp. 749–750.)   Since statutes must be interpreted to preserve their constitutionality, we assume, without deciding, that California's sexual predator statute's requirement of “mental disorder” would be interpreted as requiring mental illness.

10.   At oral argument real parties contended that Allen made amenability to treatment a precursor to a determination that a commitment proceeding is civil not criminal.   We fail to see how.

HANING, Associate Justice.

PETERSON, P.J., and CHAMPLIN, J.,* concur.

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