APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. (Super. Ct. No. MH100018).
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In November 2006, the People filed a petition pursuant to the Sexually Violent Predators Act (SVPA or the Act) (Welf. & Inst. Code,*fn2 §§ 6600 et seq.) to commit Allen Fields to the Department of Mental Health (the Department) for an indeterminate term of involuntary treatment. After a trial, a jury found that Fields was a sexually violent predator (SVP), and the court committed him to the Department for an indeterminate term.
On appeal, Fields contends that the SVPA, as amended in 2006, violates state and federal constitutional guarantees of equal protection and due process. He further claims that the trial court committed prejudicial error in limiting defense counsel's ability to question the People's expert witnesses with respect to the administration and results of a polygraph examination that was administered to Fields as part of his treatment.*fn3
We reject Fields's constitutional claims. Further, we conclude that any error the court may have made in limiting defense counsel's questioning of the People's experts concerning the polygraph examination was harmless. We therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2006, the People filed an amended petition seeking to recommit Fields as a sexually violent predator within the meaning of the SVPA.
Fields was convicted of molesting four boys, all under the age of 14. In 1983, Fields was convicted of two counts of committing a lewd act upon a child under the age of 14, for which he was sentenced to three years in prison. Fields molested two other boys in 1987. In 1988, after being charged with 93 counts of child molestation and possession of child pornography, Fields pleaded guilty to two counts of committing a lewd act upon a child under the age of 14, and two counts of committing forcible child molestation. Fields was sentenced to prison for 25 years.
During some of these crimes, Fields bound his victims, using restraints that were attached to Fields's bed. During his encounters with one of his victims, Fields would look toward some guns that were mounted on Fields's wall if the victim refused to participate in sexual acts with him. On one occasion, Fields fired a speargun through a piece of paper and said to the victim, "Imagine what that would do to you." At the time, Fields believed he was in love with that victim, and went so far as to name that victim as the beneficiary of his life insurance policy.
In 2003, Fields underwent a bilateral orchiectomy, or the surgical removal of his testes. Fields's family paid for the surgery. At trial, the parties placed significant focus on this fact and the question whether, after such surgery, it remained likely that Fields would engage in sexually violent criminal behavior if released.
Three mental health experts, Dr. Dawn Starr, Dr. Robert Owen and Dr. Doriann Hughes, all of whom are psychologists, testified for the People. Dr. Starr opined that Fields suffers from pedophilia, sexual sadism, and personality disorder with narcissistic and histrionic features. Dr. Owen testified that Fields suffers from "a severe case of pedophilia," and also from a personality disorder with narcissistic and dependent features. Both Drs. Starr and Owen testified that Fields is likely to engage in sexually violent predatory criminal behavior in the future if released. The doctors also questioned the validity of the few studies that have been done concerning physical castration and sexual offense recidivism.
Dr. Hughes treats sexual offenders, including Fields, at Coalinga State Hospital. Dr. Hughes had been meeting with Fields in group sessions twice weekly. Dr. Hughes described the sex offender treatment program in which Fields had been participating. The program consists of five progressive treatment stages called "phases." Dr. Hughes discussed Fields's treatment progress. She noted that he was currently in phase II, but that it was her opinion that Fields very recently became ready to move to phase III.
Dr. Hughes testified that she felt "pretty strongly" that Fields needs to go through phase III of the treatment program before being released, because he "still has a long way to go working through some of these problem behaviors, high risks and characteristics that have been problematic for him in the past."
Fields testified in his own defense. He described being molested by his father when he was a child, and admitted that he had restrained his victims using soft restraints. Fields explained that he had voluntarily undergone surgery resulting in his physical castration. Fields stated that he no longer has deviant sexual fantasies or urges, and said that his behavior and thought patterns had changed since the time he molested his victims. Fields described his perception of his progress in treatment, and explained that if released, he intended to move to Minnesota, where he would temporarily live with his sister and brother-in-law and would voluntarily continue outpatient treatment through Pathway Psychological Services.
Fields called Dr. Robert Halon, a psychologist, to testify as an expert witness for the defense. Dr. Halon testified that he did not believe that Fields posed a serious risk of reoffending, and opined that Fields did not meet the SVP standards. Specifically, according to Dr. Halon, there is a lack of evidence that Fields suffers from a "currently diagnosed mental disorder."
Dr. Mary Flavan, a psychiatrist, also testified for the defense. Dr. Flavan testified that she had spoken with Fields about chemical and physical castration while he was a patient at Atascadero State Hospital. Dr. Flavan had not conducted an evaluation of Fields prior to testifying. While she was working at Atascadero State Hospital and counseling sex offenders, Dr. Flavan compiled literature on the effectiveness of surgical castration on sexual offense recidivism. Dr. Flavan testified that physical castration is "very effective" at preventing recidivism in sexually violent offenders, and noted that some studies demonstrated a recidivism rate of between one and three percent.
Dr. Flavan testified that in her opinion, a sexual offender with characteristics like Fields who has undergone an orchiectomy should be released.
On May 2, 2008, a jury found Fields to be an SVP. The trial court ordered Fields committed to the Department for an indeterminate term.
A. The SVPA Legislative Scheme
Prior to 2006, the SVPA provided for a two-year commitment term for a person who was found to be an SVP.*fn4 At the end of that term, the People were required to file another petition seeking a determination that the person remained an SVP. If the People did not file a recommitment petition, the person would have to be released. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3.) On the filing of a recommitment petition, a new jury trial was conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e); People v. Munoz (2005) 129 Cal.App.4th 421, 429 ["[A]n SVP extension hearing is not a review hearing. . . . An SVP extension hearing is a new and independent proceeding at which . . . the [People] must prove the [committed person] meets the [SVP] criteria, including that he or she has a currently diagnosed mental disorder that renders the person dangerous."].)
In 2006 the SVPA was amended first by the Legislature, and then with the passage of Proposition 83 by the electorate. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83.) The amended SVPA provides that an individual who is determined to be an SVP must be "committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility . . . ." (§ 6604.) Once committed, the individual must have "a current examination of his or her mental condition made at least once every year." (§ 6605, subd. (a).) After the examination, the Department must file a report in the form of a declaration that addresses (1) "whether the committed person currently meets the definition of [an SVP]," and (2) "whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Ibid.) The Department is to file this report with the trial court that committed the person, and must serve the report on the prosecuting agency and the committed individual. The committed individual may retain, or the court may appoint, a qualified expert to examine him or her. (Ibid.)
If the Department concludes in the report that the committed individual no longer meets the requirements of the SVPA, or that conditional release is appropriate, the Department must authorize the committed individual to petition the trial court for release.*fn5 (§ 6605, subd. (b).) Upon receipt of the petition for conditional release or unconditional discharge, the trial court is to set a probable cause hearing at which the court "can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney or the committed person." (Ibid.) If the trial court determines that probable cause exists to believe that the petition has merit, the trial court must set a hearing on the issue, at which time the committed individual is "entitled to the benefit of all constitutional protections that were afforded him or her at the initial commitment proceeding." (Id., subds. (c), (d).) Either party may demand a trial by jury and may retain experts to examine the committed individual. (Id., subd. (d).) In situations in which the Department has authorized an individual to petition for either conditional release or unconditional discharge, the state bears the burden to prove beyond a reasonable doubt that the committed individual is still an SVP. (Ibid.)
The Department is required to seek judicial review of an individual's commitment not only at the time of the annual examination, but at any time that the Department "has reason to believe" a committed individual is no longer an SVP. (§ 6605, subd. (f).) Similarly, if the Department determines that the committed individual's "diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community," the Department must send a report recommending conditional release of the committed individual to the trial court, the county attorney, and the committed individual's attorney. (§ 6607, subd. (a).) The trial court is required to hold a hearing after it receives the report. (Id., subd. (b).)
After the first year of commitment, a committed individual may petition the trial court for conditional release or unconditional discharge even without the "recommendation or concurrence" of the Department. (§ 6608, subds. (a), (c).) The committed individual is entitled to the assistance of counsel in preparing and filing the petition. The individual must serve the Department with the petition. (Id., subd. (a).) After receiving such a petition, the trial court "shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing." (Ibid.)
If, after receiving a petition filed by an individual who has not received the recommendation or concurrence of the Department, the trial court determines that a hearing is appropriate, the committed individual has the burden of proving by a preponderance of the evidence that the petition should be granted. (§ 6608, subd. (i).) If the trial court determines that the committed individual "would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community," the trial court must order that the individual be placed in a state-operated forensic conditional release program. (Id., subd. (d).) The court retains jurisdiction of the person throughout the course of the conditional release program, and, at the end of one year, the court must hold a hearing to determine whether the individual should be unconditionally released from commitment. (Ibid.) If the trial court denies the petition, the committed individual must wait a year before petitioning the trial court again. (Id., subd. (h).) The trial court must deny any subsequent petition filed by that individual "unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted." (Id., subd. (a).) The SVPA is silent with respect to the hearing procedure for individuals who seek to be released without "supervision and treatment in the community," i.e., unconditional release.
As a result of Proposition 83's amendment to section 6604 making an SVP's commitment term indeterminate instead of a two-year term, an SVP now remains committed, either fully or in a conditional release setting, "until he successfully bears the burden of proving he is no longer an SVP or the [Department] determines he no longer meets the definition of an SVP. [Citations.]" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287 (Bourquez).)
B. Fields's Constitutional Arguments are Unavailing*fn6
1. The Amended SVPA does not Violate Constitutional Guarantees of Equal Protection
Fields challenges the amended SVPA on equal protection grounds under two theories. Fields first asserts that the indeterminate commitment scheme of the amended SVPA denies him equal protection of the laws when compared with other civil commitment schemes. Fields also asserts that the amended SVPA violates equal protection principles because it treats SVP's who receive the Department's authorization to file a petition differently from SVP's who do not receive the Department's authorization to file a petition. We reject both contentions.
a. Applicable Standards for Equal Protection Claims
"The right to equal protection of the laws is guaranteed by the Fourteenth Amendment to the federal Constitution and article I, section 7 of the California Constitution. The 'first prerequisite' to an equal protection claim is " 'a showing that 'the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " . . . ' [Citation.]" (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1216 (Hubbart II).) Because individuals who are not similarly situated need not be treated equally (People v. Green (2000) 79 Cal.App.4th 921, 924 (Green)), the first step in an equal protection analysis is to determine whether the two identified groups are in fact similarly situated (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199). The inquiry is not whether the two groups are similarly situated for all purposes, but, rather, whether they are similarly situated for purposes of the law being challenged. (Ibid.)
" 'Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. [Citation.]' [Citation.] The state 'may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of power.' [Citation.]" (Hubbart II, supra, 88 Cal.App.4th at p. 1217.)
"Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment. [Citations.]" (Green, supra, 79 Cal.App.4th at p. 924.) In applying this standard, the state has the burden of establishing that it has a compelling interest that justifies the law and that the distinctions made by that law are necessary to further its purpose. (Warden v. State Bar (1999) 21 Cal.4th 628, 641.)
b. A comparison of the SVPA to other civil commitment schemes does not establish that the SVPA's indeterminate commitment scheme violates Fields's right to equal protection
(i) SVP's are not similarly situated to persons committed under other civil commitment statutes
Fields contends that individuals who are committed under the amended SVPA are similarly situated to those who are committed under the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) (MDO's) and to individuals who are found not guilty by reason of insanity (NGI's) (Pen. Code, § 1026 et seq.), and that the state has no compelling interest that justifies committing SVP's to indeterminate terms while committing other civil committees to determinate terms. We disagree.
First, SVP's are not similarly situated to these other civil committees for purposes of determinate versus indeterminate commitment. The premise that SVP's are similarly situated to MDO's and NGI's overlooks significant differences in the relevant commitment schemes and their purposes with respect to the degree and type of danger that persons committed under the different schemes pose, as well as the severity of the mental illness, prognosis, and amenability to treatment of persons in the different groups. For example, although SVP's, MDO's, and NGI's all suffer from mental disorders, the dangers that the groups pose are different. While the "SVPA narrowly targets 'a small but extremely dangerous group of sexually violent predators . . . ' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley)), the other classifications involve a broad range of mental illness and associated conduct.
Further, an SVP is civilly committed in large part because of the likelihood that he or she will engage in sexually violent criminal behavior in the future. (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127 ["Sex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend . . . ."].) The SVP group presents a substantial danger to the community, has an extremely high rate of recidivism, requires long-term treatment, and has only a limited likelihood of improvement. On the other hand, the other classification groups may include individuals who suffer from mental illnesses that are of short duration, are not likely to reoccur, and/or may be successfully treated with medication or other therapeutic interventions. (See, e.g., People v. Buffington (1999) 74 Cal.App.4th 1149, 1163 [determining SVP's and MDO's are not similarly situated for purposes of equal protection claim based on differential treatment requirements].)
For purposes of an equal protection analysis with regard to determinate versus indeterminate commitment schemes, SVP's are not similarly situated to other individuals who have been committed under different civil commitment statutes.
(ii) The disparate treatment of SVP's and persons committed under other statutes serves a compelling state interest
In addition, even if we were to assume, arguendo, that SVP's are similarly situated to MDO's and NGI's for purposes of indeterminate versus determinate commitment, we would nevertheless conclude that the disparate treatment of these groups is necessary to further compelling state interests.
Fields asserts that under the amended Act, an SVP is given an indeterminate commitment and thereafter has the burden to prove that he should be released, unless the Department authorizes a petition for release, while an MDO is committed for a period of one year and has the right to annual reviews at which the People have the burden to prove beyond a reasonable doubt that the MDO continues to meet the criteria for commitment and the MDO may demand trial by jury. (See Pen. Code, §§ 2970, 2972, subds. (a), (b), (e).) Fields also notes that an NGI is initially committed for a term equal to the applicable sentence for the underlying criminal offense, and that after the expiration of that term, the NGI has the right to recommitment proceedings every two years. In those proceedings, the NGI is entitled to a jury trial and the state bears the burden of proof beyond a reasonable doubt. (See Pen. Code, § 1026.5, subd. (b)(1).) Fields contends that the state does not have a compelling interest in imposing indeterminate terms on SVP's while providing MDO's and NGI's with determinate terms and the right to recommitment proceedings, with their attendant procedural protections, at the conclusion of the determinate terms.
We conclude that there is a compelling state interest in committing SVP's to indeterminate terms, regardless of the commitment terms that are imposed on those who are committed under other civil commitment statutes. SVP's are given indeterminate, rather than fixed, terms of civil commitment because they are less likely to be cured and more likely to reoffend than are other civil committees. (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) SVP's are thus deemed more dangerous than persons who are committed under other civil commitment schemes.
As the California Supreme Court has noted, the SVPA, as originally enacted, "narrowly target[ed] 'a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.' [Citation.]" (Cooley, supra, 29 Cal.4th at p. 253.) With respect to the prior version of the SVPA, the California Supreme Court stated, "The problem targeted by the Act is acute, and the state interests ─ protection of the public and mental health treatment ─ are compelling." (Hubbart I, supra, 19 Cal.4th at p. 1153, fn. 20.)
In election materials pertaining to Proposition 83, voters were presented with information that sex offenders "prey on the most innocent members of our society" and that such offenders "have very high recidivism rates" and are the "least likely to be cured and the most likely to reoffend." (See Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) As noted in People v. Shields (2007) 155 Cal.App.4th 559, 564, in passing Proposition 83, the voters intended to enhance the confinement of SVP's: "Proposition 83 states that the change from a two-year term to an indeterminate term is designed to eliminate automatic SVP trials every two years when there is nothing to suggest a change in the person's SVP condition to warrant release . . . ." The change from the two-year fixed term to an indeterminate term was also intended to reduce the costs of SVP evaluations and court testimony. (Bourquez, supra, 156 Cal.App.4th at p. 1287.) Based on the evidence of the voters' intent in passing Proposition 83, we conclude that the changes made by Proposition 83, including the change from a two-year civil commitment to an indeterminate term, were in furtherance of compelling state interests.
The particularized danger that SVP's pose, and the limited success in treating them-characteristics that voters recognized in passing Proposition 83-justify the state treating SVP's differently from the way it treats individuals who are civilly committed under other statutes. Voters could reasonably have concluded that SVP's should be committed to indeterminate terms, subject to hearings on petitions for release at which the SVP may be required to bear the burden to prove by a preponderance of the evidence that he or she is no longer an SVP.
c. The provisions of the SVPA that provide for different evidentiary burdens for hearings that arise from Department-approved petitions and hearings that arise from petitions filed without the Department's approval do not violate equal protection
Fields contends that the amended SVPA's indeterminate commitment scheme violates his right to equal protection because an SVP who seeks judicial review of his or her status as an SVP, with the approval of the director of the Department, receives a hearing at which the state bears the burden of proving beyond a reasonable doubt that the individual is still an SVP, while an SVP who seeks judicial review of his or her status as an SVP without the approval of the director bears the burden to prove by a preponderance of the evidence that he or she is no longer an SVP. Fields complains "the state treats those seeking review of their indeterminate confinement term differently depending on whether or not a state employee, the Director of Mental Health, grants permission for judicial review."
Fields asserts that the "legitimate purpose of the law is to confine only those individuals who are both mentally ill and dangerous" and that "all SVP detainees meet the same basic criteria," such that "they are all similarly situated with respect to each other." However, given that the law's legitimate purpose is to confine only those individuals who are mentally ill and dangerous within the meaning of the SVPA, the two groups Fields identifies-i.e., SVP's who receive the Department's authorization to file a petition for conditional or unconditional release and those who do not-are not similarly situated for purposes of the SVPA.*fn7
An SVP who receives the Department's authorization to file a petition for release receives such authorization because the Department has concluded, based on the annual review, that the person no longer meets the requirements of the SVPA or that conditional release is appropriate, or because the Department otherwise "has reason to believe" that the individual is no longer an SVP. (§ 6605, subd. (f).) The mental health experts in the Department make these determinations based on diagnostic criteria that are set forth in the statute. There is thus reason to believe that an individual who receives the Department's authorization to file a petition is either no longer "both mentally ill and dangerous," or that he would not pose a danger while under supervision and treatment, and is thus suitable for conditional release. On the other hand, an SVP who does not receive the Department's authorization to file a petition for release has not demonstrated a material change in his status with regard to mental illness or dangerousness since the time of his initial commitment.
It is reasonable for the Legislature to have given the Department the power to determine whether a person continues to meet the SVP criteria. The Department is required to provide programming "which shall afford [an SVP] with treatment for his or her diagnosed mental disorder" that is "consistent with current institutional standards for the treatment of sex offenders." (§ 6606, subds. (a) and (c).) The "structured treatment protocol" that the Department is to develop must "specify measures that will be used to assess treatment progress and changes with respect to the individual's risk of reoffense." (§ 6606, subd. (c).) Every year the Department is required to conduct an examination of each SVP's mental condition in order to consider "whether the committed person currently meets the definition of a sexually violent predator . . . ." (§ 6605, subd. (a).) These provisions, in addition to the other gatekeeping functions assigned to the mental health experts at the Department to ensure that only those persons who meet the SVP criteria are initially committed under the SVPA,*fn8 are all consistent with the notion that we attach significance to the expertise of medical professionals in this area, and that reliance on this expertise is reasonable and, indeed, necessary, to fulfill the goals of the statute.
If the purpose of the law is-as Fields identifies it-"to confine only those who are both mentally ill and dangerous" within the meaning of the SVPA, then those individuals who have demonstrated to mental health experts that they no longer meet the criteria under the SVPA are not similarly situated to individuals who have not done so.
2. The amended SVPA does not violate due process in requiring that a committed person who petitions for release prove by a preponderance of the evidence that he or she no longer poses a danger to others
Fields argues that his indeterminate commitment under the amended SVPA violates his Fourteenth Amendment right to due process and his right to due process under the California Constitution. Fields complains that the statute requires that he bear the burden to prove his right to release, by a preponderance of the evidence, at any release hearing held pursuant to a petition that the Department has not authorized. He maintains that due process requires that the state bear the burden of proof in all commitment proceedings, including a proceeding to continue his detention as an SVP.
"[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425 (Addington).) "Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed. [Citations.]" (Foucha v. Louisiana (1992) 504 U.S. 71, 79 (Foucha).)
For an initial civil commitment, due process requires that the state prove by clear and convincing evidence both that the person is mentally ill and that the commitment is required for his or her own welfare or for the protection of others.*fn9 (Kansas v. Hendricks (1997) 521 U.S. 346, 358; Addington, supra, 441 U.S. at pp. 426-427, 432-433.) Once the person has been committed, due process permits the state to hold the person only as long as he or she is both mentally ill and dangerous, but no longer. (Foucha, supra, 504 U.S. at pp. 71-78 [continuing to hold dangerous person who is no longer mentally ill violates due process]; Jones v. United States (1983) 463 U.S. 354, 368, 370 (Jones) ["acquittee is entitled to release when he has recovered his sanity or is no longer dangerous"].)
According to Fields, the SVPA improperly places the burden on him to prove that he should be released, rather than placing the burden of proof on the state to prove that he is still an SVP. Fields bases his argument primarily on Foucha, supra, 504 U.S. 71. In Foucha, the United States Supreme Court considered the constitutionality of a Louisiana statute that provided for the indefinite involuntary commitment of individuals who had been found not guilty by reason of insanity and who had been determined to be dangerous, but not mentally ill. The trial court in Foucha found that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis, and the state was "not claim[ing] that Foucha is now mentally ill." (Id. at pp. 75, 80.) The Foucha court held that "a law like Louisiana's, which permits the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others," violated the Due Process clause. (Foucha, supra, 504 U.S. at p. 83.)
The Foucha court acknowledged the holding in Addington that a state may not civilly commit a person unless it establishes by clear and convincing evidence that the person is mentally ill and dangerous. (Foucha, supra, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) The court also noted its holding in Jones, supra, 463 U.S. 354, that a person who is found not guilty by reason of insanity may be automatically confined without a separate hearing to determine his or her current mental illness or dangerousness because the verdict is presumed to have shown those requirements, but that an insanity acquittee is entitled to release when he or she is no longer mentally ill or dangerous. (Foucha, supra, 504 U.S. at pp. 76-78.) What the Foucha court found significant was the fact that the evidence presented at a review hearing established that the insanity acquittee in the case before it was not currently mentally ill. It was for this reason that the court concluded that Foucha's continued confinement violated his constitutional right to due process. (Foucha, supra, 504 U.S. at p. 79.)
Fields relies on language in Foucha in which the court noted with disapproval that the Louisiana statute shifted the burden of proof from the state to Foucha on the issue of Foucha's dangerousness. In distinguishing the pretrial detention scheme that the court upheld in United States v. Salerno (1987) 481 U.S. 739 (Salerno)-a scheme that permitted the confinement of persons who were not mentally ill but who posed a danger to others or to the community, in very narrow circumstances-the Foucha court commented: "Unlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement is not carefully limited. Under the state statute, Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous." (Foucha, supra, 504 U.S. at pp. 81-82.)
One must consider the court's disapproval of the state's position as to Foucha in the context of the situation that existed in that case. The State of Louisiana was not contending that Foucha was mentally ill at the time of the hearing, but only that he was dangerous. (Foucha, supra, 504 U.S. at p. 78.) Because Louisiana was not contending that Foucha was mentally ill, "the basis for holding Foucha in a psychiatric facility as an insanity acquittee ha[d] disappeared, and the State [wa]s no longer entitled to hold him on that basis. [Citation.]" (Ibid.) Louisiana argued that under Salerno, it could continue to detain Foucha on the sole ground that he was dangerous. In rejecting ...