(Santa Clara County Super. Ct. No. No. 210929). Trial Judge: Hon. Paul Bernal.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Appellant Denis Keith Rotroff appeals from an order of commitment for an indeterminate term that followed appellant's waiver of a jury trial and submission upon documentary reports and the trial court's finding, beyond a reasonable doubt, that appellant was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6604.*fn1 On appeal, appellant challenges the constitutionality of the Sexually Violent Predator Act (SVPA) as amended by the passage of Proposition 83 in 2006.*fn2
Appellant maintains that Proposition 83*fn3 violated the single subject rule because it "combined too many disparate topics without a common purpose under a broad and amorphous theme of dealing with sex offenders." The single subject rule is expressed in two constitutional provisions, one applicable to statutes and the other applicable to initiative measures. California Constitution, article II, section 8, subdivision (d), which applies to initiatives, provides: "An initiative measure embracing more than one subject may not be submitted to the electors or have any effect."*fn4
The single subject rule is "a constitutional safeguard adopted to protect against multifaceted measures of undue scope" and "forbids joining disparate provisions which appear germane only to topics of excessive generality such as 'government' or 'public welfare.' " (Brosnahan v. Brown (1982) 32 Cal.3d 236, 253.) "The single subject rule as applied to the initiative has the dual purpose of avoiding log-rolling and voter confusion. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231 . . . .)" (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1098.) It is intended to avoid passage of a measure that combines "provisions which might not have commanded majority support if considered separately" and to "minimize the risk of voter confusion and deception. [Citation]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 231.)
The California Supreme Court has "construed our two single subject provisions in an accommodating and lenient manner so as not to unduly restrict the Legislature's or the people's right to package provisions in a single bill or initiative. [Citations.]" (Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 764.) It has "found the single subject rules to have been satisfied so long as challenged provisions meet the test of being reasonably germane to a common theme, purpose, or subject. [Citations.]" (Ibid., fn. omitted.)
In Brosnahan v. Brown, supra, 32 Cal.3d 236, 248, it was argued that Proposition 8, commonly known as "The Victims' Bill of Rights," violated the single subject rule because it contained "disparate provisions covering a variety of 'unrelated' matters such as school safety, restitution, bail, diminished capacity, and the like." The California Supreme Court concluded that the proposition met "the 'reasonably germane' standard" because "[e]ach of its several facets bears a common concern, 'general object' or 'general subject,' promoting the rights of actual or potential crime victims." (Id. at p. 247.) The court stated: "As explained in the initiative's preamble, the 10 sections were designed to strengthen procedural and substantive safeguards for victims in our criminal justice system. These changes were aimed at achieving more severe punishment for, and more effective deterrence of, criminal acts, protecting the public from the premature release into society of criminal offenders, providing safety from crime to a particularly vulnerable group of victims, namely school pupils and staff, and assuring restitution for the victims of criminal acts." (Ibid.) The "readily discernible common thread" uniting the initiative's provisions was the goal of protecting and enhancing the rights of crime victims. (Ibid.)
In Manduley v. Superior Court (2002) 27 Cal.4th 537, the Supreme Court upheld Proposition 21 against various claims that it violated the single subject rule. (Id. at pp. 573-581.) Its provisions related to Three Strikes law, criminal gang activity, and the juvenile justice system. (Id. at pp. 574-575.) The court determined that "[t]he general object of the initiative is to address the problem of violent crime committed by juveniles and gangs" (Id. at pp. 575-576.) It decided: "[T]he provisions of Proposition 21 that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiative's common purpose of addressing violent crime committed by juveniles and gangs." (Id. at p. 576.) It further determined that "[r]evising the list of violent and serious felonies to add crimes for which juveniles and gang members can receive increased penalties is reasonably germane to the initiative's general purpose of addressing juvenile and gang-related crime," "[e]ven if some of the crimes added to the list of violent and serious felonies are more likely to be committed by an adult who is not a gang member," because "the offenses nonetheless constitute crimes that commonly are committed by members of street gangs and/or juvenile offenders"(id. at p. 578).
In this case, the separate provisions of Proposition 83 are "reasonably germane to a common theme, purpose, or subject" of protecting the public against the commission of sex offenses. Appellant has not identified any provision that falls outside this common purpose. The fact that the measure affected both Welfare and Institution Code and Penal Code sections is not determinative. (See Manduley v. Superior Court, supra, 27 Cal.4th at pp. 574-575.) While appellant complains that the proposition reflects a "scattered shotgun approach to diverse topics," he concedes that these topics "relate broadly to sex offenses." The single subject rule does not require that each of the provisions of an initiative measure effectively interlock in a functional relationship. (Id. at p. 575.)
In addition, we must reject appellant's assertion that the public probably misunderstood that "SVP proceedings were civil in nature" since we assume the voters duly considered and comprehended the voter materials. (Id. at p. 580.) The proposition's official summary prepared by the Attorney General, which is contained in the Official Voter Information Guide, explicitly stated up front, underneath the official title: "Changes current two-year involuntary civil commitment for a sexually violent predator to an indeterminate commitment, subject to annual review by the Director of Mental Health and subsequent ability of sexually violent predator to petition court for sexually violent predator's conditional release or unconditional discharge." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) official title and summary of Prop. 83, p. 42, italics added.) One of the proposition's express findings supporting the changes in the SVPA stated in part: "California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments." (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (k), p. 127, italics added.)
Proposition 83 does not violate the single-subject requirement of article II, section 8, subdivision (d), of the California Constitution.
Appellant maintains that the revised SVPA, by providing for an indeterminate term of commitment for persons determined to be SVP's, "creates an unacceptable risk that an SVP detainee who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process." He insists that due process requires "periodic and mandatory hearings in which the government bears the burden of proof."
There is no dispute that persons committed under the SVPA are entitled to the protection of due process. "[F]or the ordinary citizen, commitment to a mental hospital produces 'a massive curtailment of liberty,' [citation], and in consequence 'requires due process protection.' [Citations.]" (Vitek v. Jones (1980) 445 U.S. 480, 491-492, [100 S.Ct. 1254].) "It is clear that 'commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.' Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979)" (Jones v. U.S. (1983) 463 U.S. 354, 361 [103 S.Ct. 3043].)
The existence of a recognized liberty interest requiring due process protection, however, does not tell us what procedures are required because "due process is flexible and calls for such procedural protections as the particular situation demands." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S.Ct. 2593].) The United States Supreme Court has generally eschewed "rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures." (Wilkinson v. Austin (2005) 545 U.S. 209, 224 [125 S.Ct. 2384].) "To determine what procedural protections the Constitution requires in a particular case, we weigh several factors: [¶] 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)." (Zinermon v. Burch (1990) 494 U.S. 113, 127 [110 S.Ct. 975].)
The significance of the private interest of an individual subjected to the SVPA cannot be overstated since it is "the most elemental of liberty interests" (Hamdi v. Rumsfeld (2004) 542 U.S. 507, 529, 124 S.Ct. 2633, 159 L.Ed.2d 578), the fundamental right of a citizen "to be free from involuntary confinement by his own government without due process of law." (Id. at p. 531.) "To the extent Proposition 83 has increased the burden upon liberty interests by requiring only one predicate offense and imposing an indeterminate term of commitment, it has increased the weight of the first factor," the private interest affected by official action. (People v. Allen (2008) 44 Cal.4th 843, 863, fn. 15.)
As this court previously observed in People v. Litmon (2008) 162 Cal.App.4th 383, 401, "the state has no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others. (Addington v. Texas, supra, 441 U.S. at p. 426, 99 S.Ct. 1804, 60 L.Ed.2d 323; cf. Foucha v. Louisiana, supra, 504 U.S. at pp. 80-82, 112 S.Ct. 1780, 118 L.Ed.2d 437 [state had no legitimate interest in continued detention of insanity acquittee who was no longer mentally ill]; O'Connor v. Donaldson (1975) 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 ['State cannot constitutionally confine without more a nondangerous [mentally ill] individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends'].)" In "O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), [the United States Supreme Court] held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, 'it could not constitutionally continue after that basis no longer existed.' Id., at 575, 95 S.Ct., at 2493." (Foucha v. Louisiana (1992) 504 U.S. 71, 77 [112 S.Ct. 1780].)
"The Due Process Clause 'requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.' Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972)." (Jones v. U.S. (1983) 463 U.S. 354, 368 [103 S.Ct. 3043].) Since "it is impossible to predict how long it will take for any given individual to recover-or indeed whether he ever will recover" (ibid.), California has now provided for an indeterminate commitment term for persons determined to be sexually violent predators and annual reevaluations by the DMH and other procedural safeguards. (See §§ 6604, 6605, 6608.) The critical issue, which we closely ...