APPEALS from the Superior Court of Riverside County. James A. Edwards and Robert D. Macomber, Judges.‡ Reversed with directions. (Super.Ct.No. RIC342383).
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PUBLICATION
Eric Wayne Taylor (Taylor), Robert Landis (Landis), Michael Badura (Badura), Steven Arthur Reynolds (Reynolds), and George Wright (Wright), collectively referred to as defendants, were convicted in separate criminal proceedings of various sexual offenses and were sentenced to state prison. Each was subsequently found to be a sexually violent predator (SVP) at the conclusion of his determinate sentence, and was subjected to civil commitments pursuant to the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.),*fn3 prior to November 2006.
Under the law as it existed at the time of defendants' initial commitments, the civil commitment was for a two-year period, after which the People were required to petition to extend the commitment (or to recommit) for an additional two years, if, in the opinion of the California Department of Mental Health (DMH), the individual still met the criteria for a SVP.
On September 20, 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) went into effect, changing the commitment term from two years to an indeterminate term. On November 7, 2006, Proposition 83, also known as Jessica's Law, became law, further amending the provisions of the SVPA. Each defendant in this case was the subject of petitions to extend their two-year commitments when the amendments went into effect. In each case, the People made a motion to retroactively convert their first SVP commitment to an indeterminate term, which was granted by the trial court in each case. Thus, there were no trials on the current extension petitions.
This consolidated appeal raises various challenges to the constitutionality of the statutory changes and the propriety of their retroactive application to individuals whose initial commitments predated the amendments. On this record, we conclude that imposing an indeterminate term under the SVPA amendments does not violate due process, equal protection, or ex post facto principles when a defendant is afforded a trial to determine if he or she currently meets SVP criteria. Because there were no trials on the current petitions, we must reverse with directions to complete the SVP recommitment proceedings in accordance with our opinion.
We also hold that defendant Reynolds's argument that his initial commitment was void due to the court's reliance on a psychological assessment protocol that was not formally adopted (underground regulation) is not well founded.
A detailed history of the cases against each defendant is unnecessary to our decision, which involves pure questions of law. It is sufficient to note that all five defendants were previously convicted of offenses listed as violent sexual offenses within the meaning of the SVPA. Each defendant was sentenced to state prison for a determinate term, and each was referred for evaluation under the SVPA prior to release. All defendants were previously found to be SVP's and committed to the DMH for two-year terms under the SVPA. Petitions to extend those commitments were pending in each case in 2006, prior to the enactment of the SVPA amendments. In October 2007, after the effective date of the amendments and while the current SVP extension proceedings were pending, the trial court granted the People's motions to retroactively apply the indeterminate terms to the initial commitments of Taylor, Badura, Landis, and Reynolds. A similar motion was made as to Wright, which was granted in January 2008.
In granting the People's motions to retroactively apply the indeterminate terms to the initial commitments, the trial court denied defendants' requests for jury trials on the current SVP petitions. Each defendant appeals, asserting that the amendments (1) violate due process guarantees based on the burden shifting provisions of section 6608; (2) violate the equal protection principle because SVP's are treated differently from other persons civilly committed for mental illness; and (3) violate double jeopardy and ex post facto principles. Additionally, defendants claim that the order granting the People's motion to retroactively convert their initial commitments to indeterminate terms violated their due process rights by denying each of them a trial on the current SVP petition. Reynolds also challenges his initial commitment as void due to reliance on assessment protocols that had not been formally adopted (underground regulations).
We hold that the statutory scheme on its face is constitutional. However, Taylor, Badura, Wright and Reynolds were denied a trial on their current status as SVP's, requiring reversal of the retroactive conversion of their initial commitments and remand for further proceedings to determine their status as SVP's. We also hold that Reynolds's initial commitment was not void, despite the fact the psychological assessment protocol had not been formally adopted.
We deal first with the issues common to all defendants.
1. Application of the Amended Provisions of the SVPA to Persons Subject to Petitions to Extend a Two-year Term Do Not Violate Due Process Principles Provided the Individuals Are Afforded a Trial to Determine Current SVP Criteria
All five defendants argue that the amended provisions of the SVPA are unconstitutional because (a) each defendant was deprived of a trial; (b) the amended SVP procedure places the burden on each defendant to petition for release after an indeterminate commitment; and (c) replacing a two-year commitment with an indeterminate commitment permits the state to hold a person for the rest of his or her life without having to prove he or she remains mentally ill and dangerous. Defendants also complain that the amended provisions of the SVPA violate the due process principle by shifting to each defendant the burden of proving they are no longer SVP's. We disagree.
Prior to the 2006 amendments, the SVPA required the People to file a new petition to extend the civil commitment of a SVP every two years and to prove that an individual met the criteria to be considered a SVP beyond a reasonable doubt. (Former §§ 6601, subd. (i), 6604, 6604.1; People v. Munoz (2005) 129 Cal.App.4th 421, 429.) In 2006, the Legislature amended the SVPA to provide for indeterminate terms of commitment, and the voters approved Proposition 83, which also provided for indeterminate terms of commitment for SVP's. The amendments included indeterminate terms of commitment upon the initial order of commitment and deleted all references to two-year commitment terms or extensions of prior commitments. (§ 6604.1.)
Prior to filing a petition to determine if an individual is a SVP, the individual must be evaluated by two practicing psychologists or psychiatrists. (§ 6601, subd. (d).) Once the petition is filed, the court conducts a probable cause hearing; if the court finds there is probable cause to believe the individual is a SVP, the person named in the petition may be detained in a secure facility or state hospital until a trial is completed. (§ 6602.) The individual is entitled to a trial by jury, ...