Ct.App. 4/1 D050554 San Diego County Super. Ct. No. MH97752. Judge: Peter Gallagher.
The opinion of the court was delivered by: Moreno, J.
Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators (SVP's) can be released from civil commitment under the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.). In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP.
Defendant, who is subject to indeterminate commitment pursuant to Proposition 83, challenges the law on several constitutional grounds: that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and that it violates the ex post facto clause, article I, section 10 of the United States Constitution. Like the Court of Appeal, we conclude that defendant's due process and ex post facto challenges are without merit. As for the equal protection challenge, we conclude that the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment. As explained below, we remand to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles. (See In re Moye (1978) 22 Cal.3d 457.)
i. Factual and Procedural Background
On November 8, 2004, a petition was filed to establish Richard McKee as an SVP within the meaning of the Act. The petition alleged McKee was "a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior." It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.*fn1 The petition requested that McKee be committed to the custody of the State Department of Mental Health (DMH) for a period of two years.
On February 16, 2007, McKee demurred to the petition on the ground that the Act, as amended on November 7, 2006, by the voters' passage of Proposition 83, was unconstitutional. The trial court overruled the demurrer.
On March 5, 2007, an amended petition was filed restating the original petition's factual allegations and requesting that McKee be committed to an indeterminate term pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a verdict finding McKee was an SVP within the meaning of the Act. On March 13, the trial court issued an order committing McKee to the custody of the DMH for an indeterminate term pursuant to the Act.
McKee timely filed a notice of appeal. The court rejected McKee's claims that the indeterminate commitment instituted by Proposition 83 violated federal or state due process, ex post facto or equal protection provisions. The court also rejected McKee's challenge to the sufficiency of the evidence and to the adequacy of the jury instructions. We granted review, and subsequently limited the issues to whether the Act as amended by Proposition 83 violated McKee's constitutional rights under the due process, equal protection, and ex post facto clauses.*fn2
II. The SVP Act and Proposition 83
The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603, subd. (d), 6604),*fn3 are found beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147 (Hubbart).) A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment.*fn4 (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial would be 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).) As was stated in 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."
As originally enacted, an SVP was defined as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a 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." (Former § 6600, subd. (a).) A "sexually violent offense" included a Penal Code section 288 lewd act on a child under age 14. (Former § 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145.) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)
The Act was "designed to ensure that the committed person does not `remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177.) The Act therefore provides "two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]section 6608 permits a defendant to petition for conditional release to a community treatment program. . . . [Second,] [s]section 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)
On November 7, 2006, California voters passed Proposition 83, entitled "The Sexual Predator Punishment and Control Act: Jessica's Law" amending the Act effective November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. It increases penalties for sex offenses, both by altering the definition of some sex offenses and by providing longer penalties for some offenses as well as modifying probation and parole provisions: it requires a GPS tracking device for felons subject to such registration for the remainder of their lives; it prohibits a registered sex offender from living within 2,000 feet of schools and parks; and it changes the SVP Act by reducing the number of sexually violent offenses that qualify an offender for SVP status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis by the Legislative Analyst of Prop. 83, pp. 43-44.) Proposition 83 also changes an SVP commitment from a two-year term to an indefinite commitment. It is this latter provision with which this case is concerned and which will be described in more detail below.
Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP's, now provides in relevant part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the DMH for appropriate treatment and confinement . . . ." (Italics added.) Proposition 83 did not change section 6604's requirement that a person's initial commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations: Pursuant to section 6605, subdivision (a), the DMH now files an annual report in conjunction with its examination of SVP's that "shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and 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." Subdivision (b) now provides that "[i]f the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge." (§ 6605, subd. (b).) If the state opposes the director's petition, then, as under the pre-Proposition 83 statute, it must prove beyond a reasonable doubt that the person still meets the definition of an SVP.
In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file, as was the case with the pre-Proposition 83 Act, a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also unamended by the Act, provides: "In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence." (Italics added.) After a trial court denies a section 6608 petition, "the person may not file a new application until one year has elapsed from the date of the denial." (§ 6608, subd. (h).)
In short, under Proposition 83, an individual SVP's commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had been the way an SVP could cut short his two-year commitment, now becomes the only means of being released from an indefinite commitment when the DMH does not support release.*fn5
McKee contends his indefinite involuntary commitment as an SVP under the Act violates his federal constitutional right to due process of law. There is no question that civil commitment itself is constitutional so long as it is accompanied by the appropriate constitutional protections. "States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. [Citations.] . . . It . . . cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty." (Kansas v. Hendricks (1997) 521 U.S. 346, 356-357 (Hendricks).) In order to properly justify a civil commitment, "[a] finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a `mental illness' or `mental abnormality.' [Citations.]" (Id. at p. 358.)
McKee contends that it is the fact that his commitment is now indefinite, and that it is his burden to show by a preponderance of the evidence that he is no longer an SVP, that violates his federal due process rights. In making this argument, he relies in large part on Addington v. Texas (1979) 441 U.S. 418 (Addington).) In Addington, the court held unconstitutional a civil involuntary commitment statute that authorized an indefinite commitment when the state proved by a preponderance of the evidence that the individual was mentally incompetent. (Id. at pp. 419-422.) As Addington explained: "The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others." (Addington, supra, 441 U.S. at p. 426.) The Addington court assessed the risk of improperly subjecting an individual to civil commitment: "At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered. [¶] The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." (Id. at pp. 426-427.)
The Addington court therefore concluded that "the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence." (Addington, supra, 441 U.S. at p. 427.) It held that due process required proof by clear and convincing evidence at the appellant's initial civil commitment hearing. (Id. at p. 433.)
McKee argues Addington requires the state to prove by at least clear and convincing evidence in not only the first commitment hearing but periodically at subsequent commitment hearings as well, and that therefore section 6608, subdivision (i) violates due process by imposing on the petitioner the burden of proving by a preponderance of the evidence that he is entitled to release. As explained below, the United States Supreme Court case law decided after Addington leads to the conclusion that the clear and convincing evidence standard does not apply to subsequent commitment proceedings for SVP's.
The primary case relied on by the People is Jones v. United States (1983) 463 U.S. 354 (Jones). Jones considered a District of Columbia statute that governed civil commitment of those who had been adjudged not guilty by reason of insanity of criminal charges (NGI's). Under that statutory scheme, a defendant was required to prove his affirmative defense of insanity by a preponderance of the evidence. (Id. at p. 356, fn. 1.) After his acquittal by reason of insanity, another statute provided for his immediate commitment, with a hearing required within 50 days to determine whether he was eligible for release. At the hearing, he had "the burden of proving by a preponderance of the evidence that he [was] no longer mentally ill or dangerous. [Citation.]" (Id. at p. 357.) If he did not meet that burden at the 50-day hearing, he was "entitled [by statute] to a judicial hearing every six months at which he may establish by a preponderance of the evidence that he is entitled to release. [Citation.]" (Id. at p. 358, fn. omitted.)
The court rejected a due process challenge to the statute. Congress had determined "that a criminal defendant found not guilty by reason of insanity in the District of Columbia should be committed indefinitely to a mental institution for treatment and the protection of society. [Citations.]" (Jones, supra, 463 U.S. at pp. 361-362.) An NGI determination "establishe[d] two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness." (Id. at p. 363.) Jones stated: "Congress has determined that these findings constitute an adequate basis for hospitalizing the acquittee as a dangerous and mentally ill person. [Citations.] We cannot say that it was unreasonable and therefore unconstitutional for Congress to make this determination. [¶] The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness. [Citation.] Indeed, this concrete evidence [of commission of a criminal act] generally may be at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding." (Id. at p. 364, fns. omitted.)
Distinguishing Addington, the court explained that in equating NGI commitment with the ordinary civil commitment at issue in Addington, "petitioner ignores important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof. The Addington Court expressed particular concern that members of the public could be confined on the basis of `some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.' [Citations.] . . . But since automatic commitment under [the District of Columbia's NGI commitment statute] follows only if the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error. More important, the proof that he committed a criminal act as a result of mental illness eliminates the risk that he is being committed for mere `idiosyncratic behavior[.]' [Citation.]" (Jones, supra, 463 U.S. at p. 367, fns. omitted.) Jones therefore concluded that "concerns critical to our decision in Addington are diminished or absent in the case of insanity acquittees. Accordingly, there is no reason for adopting the same standard of proof in both cases. . . . The preponderance of the evidence standard comports with due process for commitment of insanity acquittees." (Jones, supra, 463 U.S. at pp. 367-368.)
Although McKee was not found not guilty by reason of insanity, he has been found beyond a reasonable doubt in his initial commitment to meet the definition of an SVP. That finding is, for present constitutional purposes, the functional equivalent of the NGI acquittal in Jones. As in Jones, McKee has already been found not only to have previously committed the requisite criminal acts but was found beyond a reasonable doubt to have "a 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).) Therefore, as in Jones, the danger recognized in Addington "that members of the public could be confined on the basis of `some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable' " or "for mere `idiosyncratic behavior' " (Jones, supra, 463 U.S. at p. 367) is greatly diminished. Accordingly, as in Jones, the requirement that McKee, after his initial commitment, must prove by a preponderance of the evidence that he is no longer an SVP does not violate due process.
McKee seeks to distinguish Jones, arguing that in the latter case, an individual was entitled to a hearing every six months, whereas there is no such entitlement for the SVP after Proposition 83. In fact, section 6608, subdivision (h) permits an SVP to file a new petition for release as early as a year after the previous petition was denied. The statute does permit the court to deny a hearing if the petition is frivolous. Section 6608, subdivision (a) provides in pertinent part: "If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition 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. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the 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."
McKee contends that the court's discretion to deny a petition without a hearing as frivolous denies due process. We disagree. A frivolous petition is one that "indisputably has no merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [defining frivolous appeals].) McKee cites no authority for the proposition that due process is violated by not granting such petitions a hearing. The fact that the statute gives the court the authority to deny such petitions does not, of itself, serve as an obstacle to the primary due process goal of ensuring that only those individuals who continue to meet SVP criteria will remain involuntarily committed.*fn6
McKee further contends that his lack of access to mental health experts to challenge his continuing commitment violates due process. As he points out, although section 6605, subdivision (d) mandates the appointment of experts when the DMH authorizes an indigent inmate to petition for release, section 6608, subdivision (a) merely provides that petitioner has the right to counsel, with no mention of experts, when he petitions without the DMH's approval.
McKee is correct that expert testimony is critical in an SVP commitment proceeding, in which the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather involves a prediction about the individual's future behavior. If the state involuntarily commits someone on the basis of expert opinion about future dangerousness, places the burden on that person to disprove future dangerousness, and then makes it difficult for him to access to his own expert because of his indigence to challenge his continuing commitment, that schema would indeed raise a serious due process concern.
We do not believe, however, that the statute needs to be interpreted in this narrow manner. It is true that section 6608, subdivision (a), unlike section 6605, subdivision (d), does not explicitly provide for experts when an SVP petitions the court for release. But section 6605, subdivision (a) states that in conjunction with the DMH's examination of an SVP's mental condition, which must occur "at least once every year," an SVP who is indigent may request and the court may appoint "a qualified expert or professional person to examine him or her." Although section 6605, subdivision (a) does not explicitly provide for the appointment of the expert in conjunction with a section 6608 petition, such appointment may be reasonably inferred. As is clear from the context, the annual examination authorized by section 6605, subdivision (a), occurs not solely or even primarily for the purpose of assessing the SVP's treatment needs, but mainly for determining whether involuntary commitment is still required, or whether the SVP has sufficiently changed as a result of treatment to be released. There is no indication that the Legislature that authorized these expert appointments on behalf of an indigent SVP believed that such experts should be disallowed from testifying at an SVP's section 6608 hearing, nor that an SVP's indigence should serve as an obstacle to such testimony. On the contrary, the statute appears to encourage state-funded qualified expert appointed for a petitioner's benefit so as to ensure that the commitment lasts no longer than is necessary.
We construe statutes when reasonable to avoid difficult constitutional issues. (See In re Smith (2008) 42 Cal.4th 1251, 1269.) After Proposition 83, it is still the case that an individual may not be held in civil commitment when he or she no longer meets the requisites of such commitment. An SVP may be held, as the United States Supreme Court stated under similar circumstances, "as long as he is both mentally ill and dangerous, but no longer." (Foucha v. Louisiana (1992) 504 U.S. 71, 77.) Given that the denial of access to expert opinion when an indigent individual petitions on his or her own to be released may pose a significant obstacle to ensuring that only those meeting SVP commitment criteria remain committed, we construe section 6608, subdivision (a), read in conjunction with section 6605, subdivision (a), to mandate appointment of an expert for an indigent SVP who petitions the court for release.
Construing the amended Act in the above manner, we conclude it does not violate the due process clause.
McKee also contends his indefinite commitment under the terms of Proposition 83 violated the federal constitutional prohibition against ex post facto laws because it is punitive and was applied to his conduct prior to its enactment. We disagree.
Article I, section 10 of the United States Constitution provides: "No state shall . . . pass any . . . ex post facto law . . . ." The ex post facto clause prohibits only those laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37, 43.)
In Hubbart, supra, 19 Cal.4th 1138, we made clear, in considering an ex post facto challenge to the pre-Proposition 83 version of the Act, that the Legislature had "disavowed any `punitive purpose,' and declared its intent to establish `civil commitment' proceedings in order to provide `treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior. [Citations.] The Legislature also made clear that, despite their criminal record, persons eligible for commitment and treatment as SVP's are to be viewed `not as criminals, but as sick persons.' [Citation.] Consistent with these remarks, the [Act] was placed in the Welfare and Institutions Code, surrounded on each side by other schemes concerned with the care and treatment of various mentally ill and disabled groups." (Hubbart, at p. 1171.)
In concluding that our Act is not punitive, and therefore not within the scope of the ex post facto clause, we relied on the United States Supreme Court's similar conclusion in Hendricks with respect to Kansas' Sexually Violent Predator Act. As the court stated: "Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged `safe to be at large,' he is statutorily entitled to immediate release. [Citation.]" (Hendricks, supra, 521 U.S. at pp. 363-364, italics added.)
We therefore concluded the Act was not punitive because "[v]iewed as a whole, the SVPA is also designed to ensure that the committed person does not `remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' " (Hubbart, supra, 19 Cal.4th at p. 1177, citing Hendricks, supra, 521 U.S. at p. 364.) It is true that, in elaborating on this statement, we pointed to the fact that "each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again proves, beyond a reasonable doubt, that the person is dangerous and mentally impaired. (§ 6604.)" (Hubbart, supra, 19 Cal.4th at p. 1177.) But nothing in Hubbart suggests that these requirements are indispensable to shielding the Act from an ex post facto challenge. In fact, the non-punitive objectives of the Act - treatment for the individual committed and protection of the public - remain the same after Proposition 83. Moreover, under the Act after Proposition 83, as before, a person is committed only for as long as he meets the SVP criteria of mental abnormality and dangerousness. As such, the Proposition 83 amendments at issue here cannot be regarded to have changed the essentially non-punitive purpose of the Act.
McKee also argues that Proposition 83, taken as a whole, including increased provisions regarding the punishment for those convicted of sexually related offenses, evinces a punitive purpose. Obviously, the portion of Proposition 83 that concerns increased punishment for sex offenses is punitive. But the fact that the amendments to the civil commitment statute are part of the same legislative enactment as amendments to the Penal Code does not render the former amendments punitive.
McKee also argues the seven-factor test articulated in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, applies to invalidate the Proposition 83 amendments at issue here. As the United States Supreme Court has explained, the Mendoza-Martinez factors provide "a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are `neither exhaustive nor dispositive' [citations], but are `useful guideposts' [citation]. The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a non-punitive purpose; or is excessive with respect to this purpose." (Smith v. Doe (2003) 538 U.S. 84, 97.)*fn7
Although one of the five factors - affirmative restraints on liberty - is present here, as it is with all involuntary civil commitments, the other four factors go against McKee: (1) civil commitment has historically been imposed nonpunitively on those whose inability to control their behavior poses a danger to the public (see Hendricks, supra, 521 U.S. at p. 357); (2) as discussed above, the amendments to the SVP Act under consideration here do not alter the Act's non-punitive purpose of treatment and public protection; (3) the civil commitment has a rational connection with those purposes; and (4) even with indefinite commitment and alterations in the burden and standard of proof, the commitment authorized by the Act is not excessive and is designed to last only as long as that person meets the definition of an SVP. We therefore conclude that the Proposition 83 amendments do not make the Act punitive and accordingly do not violate the ex post facto clause.
C. Equal Protection Clause
McKee contends his involuntary commitment as an SVP under the Act, as amended by Proposition 83 in 2006, violated his federal constitutional right to equal protection under the law because it treats SVP's significantly less favorably than those similarly situated individuals civilly committed under other statutes. We conclude his claim has some merit and will require remand for further proceedings.
In re Moye, supra, 22 Cal.3d 457 (Moye) is highly relevant to assessing McKee's claim and will be discussed at length. Moye followed In re Franklin (1972) 7 Cal.3d 126, in which the court held that a person who has been found not guilty by reason of insanity can be civilly committed for at least the maximum term of the underlying offense, and may only be released from commitment during that term if he proves by a preponderance of the evidence that he is no longer a danger to the health and safety of himself or others. (Id. at p. 148.) As Moye summarized, we explained in Franklin "that by reason of the prior judicial determination of insanity, `persons acquitted by reason of insanity fall within a special class, thereby providing a rational basis for differences in the treatment afforded them. . . . [¶] . . . "The special interest which the public has acquired in the confinement and release of people in this exceptional class results from the fact that there has been a judicial determination that they have already endangered the public safety and their own as a result of their mental conditions as distinguished from people civilly committed because of only potential danger." ' " (Moye, supra, at pp. 462-463.) The question presented in Moye, however, was whether the commitment can continue under the same rules after that maximum term, requiring an individual to prove by a preponderance of evidence that he was no longer in need of such commitment. (Moye, supra, 22 Cal.3d at p. 460.)
This court concluded that such extension of the commitment would violate equal protection. The court compared NGI commitment to commitment under the former Mentally Disordered Sex Offender (MDSO) Act, the forerunner of the SVP Act, although unlike SVP's, those committed under the MDSO Act were civilly committed in lieu of a prison term, rather than after that term. As we observed: MDSO's "comprise a class of individuals quite similar to those, such as petitioner, who have been acquitted of a criminal offense by reason of insanity. Both classes, for example, involve persons who initially have been found to have committed a criminal act, but whose mental condition warrants a period of confinement for treatment in a state institution, in lieu of criminal punishment." (Moye, supra, 22 Cal.3d at p. 463.) Although MDSO's had been initially subject to indefinite commitment, our own decisions cast doubt on the validity of such commitments and "the Legislature has subsequently enacted new provisions which limit the duration of all MDSO commitments . . . [to] the `longest term of imprisonment which could have been imposed for the offense or offenses of which the defendant was convicted . . . ." (Id. at p. 464.) The Legislature then added former section 6316.2, which provided "for a special extended commitment of one year beyond the maximum term of imprisonment following jury trial if it is found that the patient suffers from a mental disorder and, as a result thereof, `is predisposed to the commission of sexual offenses to such a degree that he presents a serious threat of substantial harm to the health and safety of others.' (§ 6316.2, subd. (a)(2).) Additional one-year commitments were available, following similar annual hearings. (Id., subd. (h).)" (Moye, supra, 22 Cal.3d at p. 464.) The burden of proof in these hearings was on the People to prove the individual suffers from a mental disorder that predisposes him to commit sexual offenses that represented danger to the public. (Ibid.)
Thus, comparing the NGI and MDSO statutory schemes, we stated: "The foregoing provisions demonstrate the marked differences between the statutory commitment and release procedures applicable to MDSOs on the one hand and persons committed under section 1026 on the other. Yet, as we have noted the preconditions to both commitments are similar: the initial commitment follows commission of a criminal act and is based upon a finding of a mental disorder which might present a danger to others. The MDSO can be confined for only a limited period, measured by the maximum term for the underlying offense, unless thereafter the People (or other committing authority) can establish grounds for an extended commitment. ...