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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. William WASHINGTON, Defendant and Appellant.

No. A070166.

Decided: April 04, 1996

Paul Bernstein, by appointment of the Court of Appeal under the First DistrictAppellate ProjectIndependent Care System, Berkeley, for Appellant William Washington. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, San Francisco, for People.


Appellant challenges the involuntary extension of his parole and mental health treatment pursuant to Penal Code sections 2960 et seq.1  This statutory scheme, commonly referred to as the mentally disordered offender (MDO) statutes, authorizes the extension of parole and continued involuntary treatment of severely mentally disordered offenders, who have finished serving their sentences and parole terms.  (§§ 2970, 2974.)   We conclude that application of an amended version of the MDO statutes to prisoners (such as appellant), who committed their crimes between the date that the original MDO statutes were held to be unconstitutional (People v. Gibson (1988) 204 Cal.App.3d 1425, 252 Cal.Rptr. 56 [hereafter Gibson] ) and the effective date of legislation passed to cure the constitutional deficiencies, violates the ex post facto clauses of the federal and state constitutions.   Accordingly, we reverse the judgment of involuntary commitment.2


On April 14, 1989, appellant, who has a long history of suffering from chronic paranoid schizophrenia, robbed a bank.

On January 4, 1990, appellant pleaded guilty to one count of grand theft from a person (former § 487, subd. (2)).  The trial court, pursuant to a plea bargain, sentenced appellant to serve three years, with credit for 557 days in custody.

As a condition of appellant's parole, appellant was placed under the care of the San Francisco Conditional Release Program (CONREP).   Subsequently, appellant's mental state began to deteriorate.   Based upon an evaluation and recommendation submitted by appellant's primary therapist in the CONREP, the San Francisco District Attorney on January 12, 1995, filed a petition, pursuant to sections 2970 and 2972, to extend appellant's parole and treatment for one year.

The petition was tried before a jury.   On April 28, 1995, a jury found that the petition for continued involuntary treatment of appellant was proved.   Appellant's parole was extended to May 1, 1996.

Appellant filed a timely notice of appeal on May 1, 1995.


A. Waiver

At trial, appellant did not challenge the applicability of the MDO statutes to him.   The Attorney General contends that Washington's failure to do so precludes him from raising the issue on appeal.   We disagree.

 The MDO statutes are essentially penal in nature.  (People v. Collins, supra, 10 Cal.App.4th at p. 694, 12 Cal.Rptr.2d 768.)   Appellant's constitutional challenge to the application of this statutory scheme presents a pure question of law directly addressed to the validity of the judgment extending his period of parole.   The Attorney General does not contend that the People will be prejudiced by our consideration of the legal question presented.   Under these circumstances, we will proceed to consider the merits.  (E.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.)

B. The Merits

1. The Statutory Scheme And Its History

The MDO statutes provide for, inter alia, the involuntary continuation of a prisoner's parole and treatment if the prisoner is determined to be suffering from a severe mental disorder that is not in remission or cannot be kept in remission without treatment. (§§ 2970, 2972.)   Continuation of parole and treatment may be sought annually until such time as the prisoner's mental disorder is found to be in remission. (§ 2972, subd. (e).)  The Legislature enacted this statutory scheme “in order to protect the public․” (§ 2960.)

The MDO statutes were first enacted in October of 1985.  (People v. Jenkins (1995) 35 Cal.App.4th 669, 672, 41 Cal.Rptr.2d 502.)   As originally enacted, the statutes purportedly applied to prisoners incarcerated before as well as after January 1, 1986, the effective date of the statutes.  (Ibid.)  The MDO statutes also did not require any finding that the prisoner's mental disorder represents a substantial danger of physical harm to others.   (Gibson, supra, 204 Cal.App.3d at p. 1436, 252 Cal.Rptr. 56.)

On October 6, 1989, the Second District Court of Appeal filed a decision finding two constitutional infirmities in the statute.  (Gibson, supra, 204 Cal.App.3d at pp. 1435, 1440–1441, 252 Cal.Rptr. 56.)   The court concluded that retroactive application of the MDO statutes to a defendant who had committed a crime in 1983 violated the ex post facto clauses of the federal and state constitutions.  (Id. at pp. 1434–1435, 252 Cal.Rptr. 56.)   The court also found that the act violated the equal protection clauses of the federal and state constitutions (U.S. Const., 14th Amend.;   Cal. Const., art.   I, § 7) in that it was unreasonable and arbitrary to exempt prisoners subject to commitment under the MDO statutes from a requirement that the government show proof of present dangerousness, a requirement that was applicable to all other persons subject to involuntary commitment.  (Gibson, supra, 204 Cal.App.3d at pp. 1436–1441, 252 Cal.Rptr. 56.)

In response to Gibson, the Legislature passed urgency legislation intended to remedy these constitutional deficiencies.   The legislation was enacted on July 27, 1989.   It states:  “ ‘This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect․  [¶] ․ In order to keep the mentally disordered offender program in effect for those persons who committed their crimes on or after January 1, 1986, it is necessary that this act take effect immediately.’  [Citation.]  Section 2980 was amended to provide that ‘[t]his article applies to persons who committed their crimes on and after January 1, 1986.’  [Citation.]”  (People v. Jenkins, supra, 35 Cal.App.4th at p. 673, 41 Cal.Rptr.2d 502.)

Appellant committed his crime on April 14, 1989, between the time Gibson was decided and the amendments to the MDO statutes became effective.

2. Ex Post Facto Principles

 The federal and state ex post facto clauses are to be given the same meaning.  (E.g., Tapia v. Superior Court (1991) 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434.)   Among the laws prohibited by these constitutional provisions is “ ‘[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.’  ” (Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30, quoting Calder v. Bull (1798) 3 Dall. 386, 390, 1 L.Ed. 648, emphasis in original;  accord Tapia v. Superior Court, supra, 53 Cal.3d at p. 294–295, 298–299, 279 Cal.Rptr. 592, 807 P.2d 434.)

As observed above, the MDO statutes are penal in nature.  (People v. Collins, supra, 10 Cal.App.4th at p. 694, 12 Cal.Rptr.2d 768;  Gibson, supra, 204 Cal.App.3d at pp. 1431–1434, 252 Cal.Rptr. 56.)   There is no question that they increase the punishment for the underlying crime.   (Gibson, supra, 204 Cal.App.3d at pp. 1431–1435, 252 Cal.Rptr. 56.)

Appellant persuasively argues that application of the amended statutes to any prisoner who committed a crime between the time Gibson was decided and the MDO statutes were amended violates the ex post facto clauses.   He reasons that, during this period, no enforceable MDO statutes existed and therefore the amended statutes retroactively increased the punishment of such a prisoner in the same manner as the original statutes increased the punishment of those prisoners, such as Gibson, who committed crimes prior to the effective date of the original statutes.

The Attorney General responds that there was no ex post facto violation in applying the statute to appellant, because the existence of the original MDO statutes provided “fair warning” to him of the consequences of his criminal conduct.   The Attorney General derives this argument principally from Dobbert v. Florida (1977) 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344.   In that case, the defendant was convicted of murder in the first and second degrees, child torture and child abuse.   At the time the defendant committed the murders, an applicable death penalty statute was in effect.   The statute was later declared unconstitutional and was then amended to cure its constitutional defects.   The amended statute was effective at the time of the defendant's sentencing and he was sentenced to death pursuant to it.   The United States Supreme Court held that application of the amended statute to the defendant did not violate the federal ex post facto clause.   The court reasoned that the amendments to the statute were merely “procedural and on the whole ameliorative” and that the “existence of the [superseded statute] on the statute books [at the time the murder was committed] provided fair warning as to the degree of culpability which the State ascribed to the act of murder.”   (Id. at pp. 292, 297, 97 S.Ct. at 2292.)

 The Dobbert case is clearly distinguishable from the case at hand.   At the time Dobbert committed his crimes, an apparently valid death penalty statute was in effect.   At the time appellant committed his crime, the MDO statutes had been found unconstitutional and were therefore unenforceable.  (1 Sutherland, Statutory Construction (5th ed.1992) § 2.07, pp. 36–44 [unconstitutional statute cannot be applied to the extent that it violates the constitution];  1 LaFave & Scott, Substantive Criminal Law (1986) § 2.10, p. 196 [a successful equal protection challenge to a criminal statute renders the challenged provisions void];  13 Cal.Jur.3d, Constitutional Law, § 75 at pp. 161–162 [unconstitutional law is void].)   Unlike the existence of an effective statute in the Dobbert case, the existence of a statutory scheme that had been declared unconstitutional did not provide “fair warning” that appellant's parole and confinement could be extended, possibly indefinitely.   The possibility that the Legislature could act to cure the constitutional deficiencies in the statutes does not provide the requisite fair warning.3  (Cf. Miller v. Florida (1987) 482 U.S. 423, 431, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 [sentencing statute providing for continuous review and recommended changes did not provide fair warning that defendant would be sentenced pursuant to guidelines in effect on sentencing date, rather than those in effect at time crime committed].)   Furthermore, the fact that the amendments to the MDO statutes were curative in nature does not serve to exclude the amended statutes from ex post facto analysis.  (2 Sutherland, Statutory Construction, op. cit. supra, § 41.12, pp. 420–421;  13 Cal.Jur.3d, Constitutional Law, § 354, p. 877.)   Accordingly, nothing in United States Supreme Court's decision in Dobbert convinces us that appellant's parole may be extended under the amended MDO statutes without violating the ex post facto clauses of the state and federal constitutions.

People v. Jenkins, supra, 35 Cal.App.4th 669, 41 Cal.Rptr.2d 502, also relied upon by the Attorney General, is distinguishable on essentially the same basis.   In Jenkins, the same court that decided Gibson, upheld the application of the amended MDO statutes to a defendant, who committed his crime on February 21, 1986.   The issue decided by the Jenkins court was whether application of a statute to a defendant, who committed his crime after the effective date of the statute, but before the operative date, violated the ex post facto clauses.   While the Jenkins crime was committed after the effective date of the original MDO statutes, it was committed before the statutes were declared unconstitutional.   The defendant therefore received the same “fair warning” that the defendant in Dobbert received and the subsequent amendments to the statutes were solely ameliorative in the Jenkins defendant's case.   We cannot agree with the Attorney General that Jenkins stands for the proposition that the amended MDO statutes may be retroactively applied without violating the ex post facto clauses in all cases, including appellant's.

In summary, application of the amended MDO statutes to prisoners (such as appellant), who committed their crimes after the original MDO statutes were declared unconstitutional in Gibson and before curative amendments to the statutes were effective, falls squarely within the prohibitions of the ex post facto clauses of the federal and state constitutions.   Finding no authority to support the Attorney General's contention that the existence of the unconstitutional statute provided “fair warning” that the MDO statutes could be applied to such prisoners, we conclude that the amended MDO statutes cannot be constitutionally so applied.


Accordingly, the judgment of involuntary commitment pursuant to the MDO statutes is reversed.


1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Appellant also contends that the trial court erred by informing the jury of the consequences of its verdict People v. Collins (1992) 10 Cal.App.4th 690, 694–696, 12 Cal.Rptr.2d 768 and by instructing the jury with a reasonable doubt instruction patterned after the one suggested by our Supreme Court in People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9, 34 Cal.Rptr.2d 558, 882 P.2d 249. Appellant further contends that, if the MDO statutes may constitutionally be applied in his case, then his plea bargain was not entered into knowingly, intelligently and voluntarily.   Finding in appellant's favor on his ex post facto claim, we need not address the remainder of his claims.

3.   Resort to legislative history, although unnecessary to our determination of the ex post facto question, supports our conclusion.   A report from the Senate Committee on the Judiciary regarding the bill amending the MDO statutes states:  “The bill as written may be unconstitutional since it applies what amounts to an ex-post-facto extension of a prison term for those who commit crimes prior to the date this bill is enacted.   See People v. Gibson (1988) 204 Cal.App.3d 1425, 252 Cal.Rptr. 56.   The Joint Committee staff argues that it is not an ex-post-facto law because persons who committed crimes after the enactment of the original unconstitutional statue were on notice of the MDO Program.   However, there is no authority for the argument that the prior existence of an invalid statute is sufficient to give persons notice of a new statute with new and different standards.”  (Sen. Com. on Judiciary, Legislative Bill File on Sen. Bill No. 1625 (1989–1990 Reg. Sess.).)

HAERLE, Associate Justice.

KLINE, P.J., and SMITH, J., concur.