(Super. Ct. No. SCV13798)
The opinion of the court was delivered by: Robie , J.
Opinion following transfer from Supreme Court
Committed to the State Department of Mental Health (now, the State Department of State Hospitals; hereafter, the department) for an indeterminate term as a sexually violent predator (SVP), defendant Robert James Riffey appeals. He contends amendments to the Sexually Violent Predator Act (the Act) (Welf. & Inst. Code,*fn1 § 6600 et seq.) that provide for indeterminate commitments should not have been applied to him retroactively and are unconstitutional. We conclude the amendments to the Act were not applied to defendant retroactively and his constitutional challenges are without merit. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2002, the Placer County District Attorney filed a petition to commit defendant to the department for two years as an SVP. In December 2002, defendant waived a probable cause hearing and the court bound him over for trial. Over the next four years, the matter was continued numerous times.
"On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128). (Stats. 2006, ch. 337.) Senate Bill 1128 was urgency legislation that went into effect immediately. (Stats. 2006, ch. 337, § 62.) Among other things, it amended provisions of the Act to provide the initial commitment set forth in Welfare and Institutions Code section 6604 was for an indeterminate term. (Stats. 2006, ch. 337, § 55.)" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.)
"At the November 7, 2006 General Election, the voters approved Proposition 83, an initiative measure. (Deering's Ann. Welf. & Inst. Code (2007 supp.) appen. foll. § 6604, p. 43.) Proposition 83 was known as 'The Sexual Predator Punishment and Control Act: Jessica's Law.' (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) Among other things, Proposition 83 'requires that SVPs be committed by the court to a state mental hospital for an undetermined period of time rather than the renewable two-year commitment provided for under existing law.' (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, p. 44.)" (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1281.)
In March 2007, the district attorney filed an amended petition to commit defendant as an SVP for an indeterminate term. The matter was tried in April 2007. In midtrial, defendant moved to dismiss the proceedings against him on the ground (among others) that "retroactive" application to him of the new provision allowing commitment for an indeterminate term would violate due process. The court denied the motion. The jury subsequently found defendant was an SVP, and the trial court committed him to the department for an indeterminate term.
Defendant filed a timely notice of appeal. We affirmed the judgment in an earlier opinion, but the Supreme Court granted review and transferred the case back to us with directions to vacate our decision and to reconsider the cause in light of People v. McKee (2010) 47 Cal.4th 1172 (McKee I). The Supreme Court also ordered us to suspend further proceedings pending finality of the proceedings on remand in McKee, including the finality of any subsequent appeal and any further proceedings in the Supreme Court.
Following further trial court proceedings in McKee, Division One of the Fourth Appellate District issued its opinion in the subsequent appeal in the case, and the Supreme Court denied review. (People v. McKee (2012) 207 Cal.App.4th 1325, review denied Oct. 10, 2012, S204503 (McKee II).) Accordingly, we now reconsider this case in light of the Supreme Court's decision in McKee I.
The Act "allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) Under the version of the Act in effect before the enactment of Senate Bill No. 1128 and the passage of Proposition 83, if the government proved beyond a reasonable doubt in an initial commitment proceeding that a person was an SVP, then the court had to commit the person to the department for two years, and the person could not be kept in actual custody for longer than two years unless a new petition to extend the commitment was filed. (Former § 6604; Albertson v. Superior Court (2001) 25 Cal.4th 796, 802, fn. 6; Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1280.) "The procedures for an initial commitment also appl[ied] to an extended commitment to the extent possible." (People v. Ward (2002) 97 Cal.App.4th 631, 634.) Thus, to ...