People v. Peyton ( 2022 )

Filed 8/16/22 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B314992
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. ZM014741
v. & ZM011411)
FRANKLIN PEYTON et al., ORDER MODIFYING
OPINION AND DENYING
Defendants and REHEARING
Appellants.
NO CHANGE IN THE
JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on July 28, 2022, be
modified as follows:
1. On page 17, before the first full sentence, which begins with
“Petitioners,” insert the following:
Citing the Legislative Counsel’s Digest to the 2013 bill that
amended the Act to its current form, which indicates that
the 2013 bill was meant to “make nonsubstantive,
organizational changes” to the Act (Legis. Counsel’s Dig.,
Sen. Bill No. 295 (2013-2014 Reg. Sess.), Stats. 2013, ch.
182, Summary Dig.), petitioners contend we must read the
current statutory language to have the same effect as the
November 2006 version of the Act. Because the Digest is
“not part of the law and cannot alter the scope, meaning, or
intent of the bill itself” (People v. Vang (Aug. 5, 2022,
C090365) __Cal.App.5th__ [2022 Cal.App.Lexis 685, *37]),
and because the Digest’s characterization of the 2013
amendments conflicts with the text of the Act, we give
effect to the Act’s text over the Digest’s commentary. (In re
Marriage of Stephens (1984) 156 Cal.App.3d 909, 916-917
[“Where the [legislative counsel’s] digest conflicts with the
unambiguous language of the statute, . . . the digest is not
controlling.”].)
2. On page 17, replace the entire last paragraph beginning with
“Lastly,” with the following paragraph:
Lastly, Grassini argues that Smith 2022 and the other
cases reading the Act as making a direct petition for
unconditional discharge contingent upon a favorable
Department evaluation are wrongly decided. This
argument lacks merit for all of the reasons set forth above.
2
* * *
There is no change in the judgment.
Grassini’s petition for rehearing is denied.
——————————————————————————————
LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
3
Filed 7/28/22 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B314992
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. ZM014741
v. & ZM011411)
FRANKLIN PEYTON et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Robert S. Harrison, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of
Appeal, for Defendant and Appellant Franklin Peyton.
Jean Matulis, under appointment by the Court of Appeal,
for Defendant and Appellant Randee Grassini.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, Viet H. Nguyen, and David F.
Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
******
Franklin Peyton (Peyton) and Randee Grassini (Grassini)
(collectively, petitioners) have been civilly committed under our
State’s Sexually Violent Predator Act (the Act) (Welf. & Inst.
Code, §§ 6600 et seq.).1 A person committed under the Act may
be unconditionally discharged (if they no longer meet the
definition of a “sexually violent predator” (SVP)) (§ 6604.9, subd.
(d)), or conditionally released into the community under
supervision of the Director of State Hospitals (the Director) (if
they still meet the definition of a “sexually violent predator,” but
the community can be “adequately protect[ed]” because they are
being supervised and treated) (ibid.; § 6608, subd. (g)). If the
Director’s annual psychological evaluation of an SVP indicates
that they no longer meet the SVP definition, the SVP may
directly petition for unconditional discharge. (§ 6604.9, subds. (d)
& (f).) But what if there is no such finding by the Director’s
evaluating psychologist? May the SVP still directly petition for
unconditional discharge, or must the SVP instead follow the
usual, two-step process for obtaining unconditional discharge—
that is, by seeking conditional release for a year and then
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
petitioning for unconditional discharge (§ 6608, subd. (m))? Our
colleagues in People v. Smith (2022) 75 Cal.App.5th 332, 336, 344
(Smith 2022) held that the Act does not authorize an SVP to
directly petition for unconditional discharge without a favorable
evaluation from the Director, and that this construction of the
Act did not deny an SVP due process. We agree with Smith’s
statutory and constitutional holdings, and publish to add further
arguments supporting this conclusion as well as to respond to
additional points raised by the petitioners in this case. We
accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Underlying Criminal Conduct
A. Peyton
Peyton was born in May 1947.
In 1986, he pled guilty in a California court to 11 counts of
lewd and lascivious acts. (Pen. Code, § 288, subd. (a)). These
counts grew out of Peyton’s sexual molestation of children, in
1983 and 1984, who were between the ages of 5 and 11 and who
had been entrusted to the care of Peyton’s then-wife, who often
babysat for friends and neighbors. Peyton was sentenced to
prison for 26 years.
Also in 1986, Peyton was convicted of three counts of sexual
assault on a child in a Colorado court. These counts grew out of
Peyton’s sexual molestation of three children who were 7 and 8
years old. He was sentenced to prison for 16 years, to be served
concurrently with his California sentence.
Peyton completed his criminal sentence and was
transferred to a California mental health facility in September
2005.
3
B. Grassini
Grassini was born in December 1954.
In 1976, Grassini was convicted in a Nevada court of gross
lewdness and anal intercourse with a 9-year-old child. He was
sentenced to six years in prison.
In 1987, Grassini pled no contest in a California court to 12
counts of lewd and lascivious acts. The counts grew out of
Grassini’s conduct with three children between the ages of 4 and
12. He was sentenced to 26 years in state prison.
Grassini completed his criminal sentence and was
transferred to a California mental health facility in 2001.
II. SVP Commitment Proceedings
A. Peyton
In June 2009, the People filed a petition to commit Peyton
as an SVP under the Act.
In August 2015, Peyton admitted the petition’s allegations
over his counsel’s objection, and, on the basis of that admission,
was found to be an SVP and committed to the Director’s custody.
Peyton has thereafter refused all treatment.
The Director conducted a psychological evaluation of
Peyton every year between 2016 and 2020, and each of those
evaluations concluded that Peyton was not suitable for
unconditional discharge or conditional release. In light of these
conclusions, the trial court continued Peyton’s commitment as an
SVP every year.
B. Grassini
In 1999, the People filed a petition to commit Grassini as
an SVP under the Act. In 2001, a jury found the petition true,
and Grassini was committed to the care of the Department of
State Hospitals for a two-year commitment.
4
In March 2007, the People filed a petition to recommit
Grassini under the Act. The matter proceeded to a three-day
bench trial in January 2015. The trial court ruled that Grassini
still qualified as an SVP, and recommitted him to the Director’s
custody.
The Director conducted a psychological evaluation of
Grassini every year between 2016 and 2020, and each of those
evaluations concluded that Grassini was not suitable for
unconditional discharge or conditional release. In light of these
conclusions, the trial court continued Grassini’s commitment as
an SVP every year.
C. Marriage
In May 2014, while living in the same mental health
facility, Peyton and Grassini married.
III. Petitioners’ Motion for Unconditional Discharge
In March 2021, petitioners filed a joint petition directly
seeking unconditional discharge. To their petition, they attached
four psychological evaluations—two opining that Peyton no
longer met the SVP definition and two opining that Grassini no
longer did.2 Petitioners thereafter filed a supplemental petition
arguing that denying them the right to directly petition for
unconditional discharge violated due process.
While this petition was pending, the Director conducted its
annual psychological evaluation of Peyton for 2021, which
concluded that he was not suitable for unconditional discharge or
conditional release.
2 One of the two reports on Grassini was from a psychologist
who had opined that Grassini had not met the SVP definition
when she evaluated him back in 2014.
5
The People opposed the joint petition.
At a July 2021 hearing, the trial court denied the joint
petition insofar as it requested unconditional discharge. The
court reasoned that “[a] petition for an unconditional discharge
may only be made when the [D]irector . . . authorizes such a
petition . . . or at least one year after the SVP committee has been
on a conditional release.” Because no authorization from the
Director had been shown, the court denied the petition for
unconditional discharge but, with petitioners’ consent, construed
it as a petition for conditional release.3
IV. Appeal
Petitioners filed this timely appeal of the denial of their
joint petition for unconditional discharge.
DISCUSSION
Petitioners argue that the trial court erred in denying their
joint petition for unconditional discharge. In examining these
arguments, we must interpret the Act, interpret the due process
clause, and apply our legal determinations to undisputed facts;
our review is accordingly de novo. (Lopez v. Ledesma (2022) 12
Cal.5th 848, 857 [statutory interpretation]; California Cannabis
Coalition v. City of Upland (2017) 3 Cal.5th 924, 934
[constitutional interpretation]; Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 912 [application of law to
undisputed facts].) Before addressing the merits of petitioners’
arguments, we start by providing an overview of the Act.
I. The Act
The purpose of the Act is twofold. The “primary” objective
of the Act is to “protect the public from ‘a small but extremely
3 The petition for conditional release was set for hearing
later in 2021, and is not part of this appeal.
6
dangerous group of sexually violent predators . . .’” who are
“mentally ill.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1192
(Hurtado), quoting Stats. 1995, ch. 763, § 1; People v. Otto (2001)
26 Cal.4th 200, 214 (Otto); State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 344 (State Dept.). A
secondary objective is “to provide mental health treatment for
their [mental] disorders.” (State Dept., at p. 344.)
A. Initial commitment as an SVP
1. Screening for possible SVP status
When an inmate is nearing the end of his or her prison
term and may qualify as an SVP, the State Department of State
Hospitals (the Department) must “evaluate” that inmate “in
accordance with a standardized assessment protocol . . . to
determine whether the [inmate] is [an SVP]” as defined by the
Act; if the Department so determines, it must ask the People to
file a petition to have the inmate formally declared an SVP under
the Act. (§§ 6601, subds. (a), (c) & (h)(1).)
2. Formal proceedings to determine SVP status
If the People elect to file a petition to have the inmate
declared an SVP, the trial court conducts two proceedings.
First, the court holds a “probable cause hearing,” the goal of
which (and as its name suggests) is to “determine whether there
is probable cause to believe that” the inmate may be an SVP. (§
6602, subd. (a).) Second, if the court determines that probable
cause so exists, the court conducts a trial on the question of
whether the inmate is an SVP. At this trial, the People bear the
burden of proving SVP status to a jury beyond a reasonable
doubt. (§§ 6603, subds. (a) & (b), 6604.)
For purposes of both proceedings, an inmate qualifies as an
SVP if (1) the inmate “has been convicted of a sexually violent
7
offense against one or more victims,” (2) the inmate “has a
diagnosed mental disorder that makes [him or her] a danger to
the health and safety of others,” and (3) the mental disorder
makes it “likely” that the inmate “will engage in future predatory
acts of sexually violent criminal behavior if released from
custody.” (§ 6600; People v. Jackson (2022) 75 Cal.App.5th 1, 7-8
(Jackson).) In proving the third element, “‘likely’ . . . does not
mean more likely than not; instead, the standard of likelihood is
met ‘when “the person 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. Shazier (2014) 60
Cal.4th 109, 126, italics in original.)
3. Civil commitment
If at the trial an inmate is found to be an SVP, he or she is
civilly committed to the Department’s custody “for an
indeterminate term” “for appropriate treatment and confinement
in a secure facility.” (§§ 6604, 6606, subd. (a) [obligating
Department to provide treatment for the SVP’s “diagnosed
mental disorder”].) Before the voters passed Proposition 83 in
2006, the maximum term of commitment had been two years,
although the People still had the option of filing a new petition
and again establishing at trial that the inmate was an SVP
beyond a reasonable doubt. (People v. McKee (2010) 47 Cal.4th
1172, 1183-1184 (McKee).)
B. Terminating commitment as an SVP
While an SVP is civilly committed, the SVP must be
evaluated by a “professionally qualified person” “at least once
every year” to assess (1) whether they “currently meet[] the [SVP]
definition,” and if they no longer do, whether the SVP “should . . .
be considered for unconditional discharge,” and (2) whether they
8
are suitable for “conditional release to a less restrictive
alternative.” (§ 6604.9, subds. (a), (b) & (d).) The Director is
bound by the evaluator’s recommendation and has no discretion
to take a different position. (People v. Landau (2011) 199
Cal.App.4th 31, 37-39 (Landau 2011); People v. Smith (2013) 212
Cal.App.4th 1394, 1399, fn. 2 (Smith 2013).)
Because the standards and procedures for unconditional
discharge and conditional release differ, we examine each in more
detail. We start with conditional release.
1. Conditional release
Under the Act, an SVP is suitable for conditional release to
a less restrictive alternative (typically, placement in the
community rather than the secure facility where he or she has
been housed as an SVP) if he or she is no longer “a danger to the
health and safety of others” because it is not “likely that he or she
will engage in sexually violent criminal behavior due to his or her
diagnosed mental disorder if under the supervision and
treatment in the community.” (§ 6608, subd. (g); see also § 6607,
subd. (a); People v. McCloud (2021) 63 Cal.App.5th 1, 9-10
(McCloud).)
The applicable procedures and standards for assessing
whether conditional release is appropriate vary, depending on the
findings of the Department’s annual evaluation.
If the Department’s annual evaluation indicates that the
SVP is suitable for conditional release because such release is “in
the best interest” of the SVP and “conditions can be imposed that
adequately protect the community,” then the Director or the SVP
may file a petition for conditional release under section 6608. (§§
6604.9, subds. (d) & (e) [authorizing Director to file], 6608, subd.
(a) [authorizing SVP to file].) In light of the Director’s pro-
9
conditional release evaluation, the SVP is presumptively entitled
to conditional release and the State bears the burden of showing,
by a preponderance of the evidence, that “conditional release is
not appropriate.” (§ 6608, subd. (k); McCloud, supra, 63
Cal.App.5th at pp. 9-10.)4
By contrast, if the Department’s annual evaluation
indicates that the SVP is not suitable for conditional release, the
SVP may nonetheless file a petition under section 6608. (§ 6608,
subd. (a).) In this scenario, the trial court must obtain the
4 Under the November 2006 version of the Act, an SVP with
a recommendation in favor of conditional release could
alternatively seek that release under section 6605 as well.
(Smith 2013, supra, 212 Cal.App.4th at p. 1404 [so holding].)
Under that version of the Act, section 6605, subdivision (b)
required the Director, upon giving the SVP a favorable
recommendation for conditional release, to “authorize” the SVP
“to petition the court for conditional release . . . or for an
unconditional discharge.” (Former § 6605, subd. (b) (2006).)
Viewing the statute as “ambiguous” as to whether an SVP in this
circumstance could proceed under other subdivisions of section
6605, Smith 2013 construed that language to so allow and
thereby give an SVP in this circumstance the option of proceeding
under section 6608 or under section 6605. (Smith 2013, at pp.
1402-1404.) The current version of the Act deleted the 2006
version of subdivision (b) of section 6605, and, as noted in the
text, replaced it with section 6604.9, subdivision (e), which more
definitively directs an SVP with a favorable recommendation to
“petition using the procedures in section 6608.” We reject
petitioners’ argument that the current version was meant merely
to “reorganize” the Act without making any substantive changes
to the 2006 version of the Act because the changes our
Legislature enacted with the necessary two-thirds majority did
make substantive changes.
10
Director’s then-current recommendation regarding the SVP’s
suitability for conditional release. (Id., subd. (e).) The court then
makes an initial assessment as to whether the petition is
“frivolous” (id., subd. (b)(1)), which asks whether the petition
‘“indisputably has no merit”’ because “any reasonable attorney
would agree that the petition on its face and any supporting
attachments [a]re totally and completely without merit” (McKee,
supra, 47 Cal.4th at p. 1192; People v. Olsen (2014) 229
Cal.App.4th 981, 999).5 If not frivolous, the matter can proceed
to a hearing, where the SVP bears the burden of showing, by a
preponderance of the evidence, that conditional release is
appropriate. (§ 6608, subd. (k); McCloud, supra, 63 Cal.App.5th
at p. 10.)
2. Unconditional discharge
Under the Act, an SVP is entitled to unconditional
discharge if he “no longer meets the [SVP] definition” because the
SVP’s “diagnosed mental disorder has so changed that he or she
is not a danger to the health and safety of others and is not likely
to engage in sexually violent criminal behavior if discharged.” (§§
6604.9, subd. (d), 6605, subd. (a)(2).)
The applicable procedures and standards for assessing
whether unconditional discharge is appropriate also vary,
depending on the findings of the Department’s annual evaluation.
5 If the SVP has previously filed a petition under section
6608 without a favorable suitability evaluation by the
Department, and if that petition was denied as frivolous or
meritless, the court must deny any 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.” (§ 6608, subd. (a).)
11
If the Department’s annual evaluation indicates that the
SVP is suitable for unconditional discharge because he or she “no
longer meets the [SVP] definition,” the Director “shall” authorize
the SVP to file a petition for unconditional discharge under
section 6605. (§ 6604.9, subds. (d) & (f); Smith 2022, supra, 75
Cal.App.5th at p. 337; Olsen, supra, 229 Cal.App.4th at p. 992.)
Under section 6605, and in light of the Director’s evaluation that
the SVP no longer qualifies as an SVP, the SVP is strongly
presumed to be entitled to unconditional discharge and the State
bears the burden of proving, beyond a reasonable doubt, that the
SVP’s “diagnosed mental disorder remains such that he or she is
a danger to the health and safety of others and is likely to engage
in sexually violent criminal behavior if discharged” from a secure
facility. (§ 6605, subd. (a)(3).) In this regard, the People are
essentially required to carry the same burden of showing SVP
status as they did when initially committing the inmate. (See
People v. Cheek (2001) 25 Cal.4th 894, 899.) After evaluating the
evidence, the trial court has the power to (1) grant an
unconditional discharge, (2) place the SVP on conditional release,
or (3) deny the petition altogether and leave the SVP in a secure
facility. (People v. Landau (2016) 246 Cal.App.4th 850, 881-882
(Landau 2016).)
If the Department’s annual evaluation indicates that the
SVP is not suitable for unconditional discharge, then the SVP has
a two-step path to unconditional discharge—namely, (1) he or she
must file a petition for conditional release under section 6608 (§
6608, subd. (a)); and (2) after one year on conditional release, he
or she may file a petition for unconditional discharge under
section 6605 (§ 6608, subd. (m)). (McKee, supra, 47 Cal.4th at p.
12
1187; Smith 2022, supra, 75 Cal.App.5th at p. 337; McCloud,
supra, 63 Cal.App.5th at p. 15, fn. 11.)
Separate and apart from the annual review process, if the
Department otherwise develops “reason to believe” that an SVP
is “no longer” an SVP, it is obligated to file a petition for a writ of
habeas corpus seeking the inmate’s unconditional discharge. (§§
6605, subd. (c), 7250.)
II. Analysis
It is undisputed that the Director has not found Peyton or
Grassini suitable for unconditional discharge or conditional
release. Petitioners nevertheless argue that they are entitled to
directly petition for unconditional discharge under section 6605
because (1) the Act authorizes such a petition, and (2) even if the
Act does not, due process requires us to construe the Act to
permit such a petition (e.g., People v. Miracle (2018) 6 Cal.5th
318, 339 [“‘a statute must be construed, if reasonably possible, in
a manner that avoids a serious constitutional question’”]).
A. Does the Act authorize an SVP to directly
petition for unconditional discharge under section 6605
without a favorable finding of suitability by the Director?
In interpreting the Act, we start with its text. (E.g., People
v. Partee (2020) 8 Cal.5th 860, 867.) As explained above, the text
of the Act provides that a trial court is to directly entertain a
petition for unconditional discharge under section 6605 if—and
only if—the Department, in its annual evaluation, has concluded
that the “person no longer meets the definition of a sexually
violent predator.” (§ 6604.9, subds. (d) & (f).) Without such an
evaluation, the SVP must follow the two-step procedure, outlined
above, that obligates the SVP to petition for conditional release
under section 6608 and, after a year on such release, to petition
13
for unconditional discharge under section 6605. (§ 6608, subds.
(a) & (m).) Every decision interpreting this text has come to the
same conclusion. (Smith 2022, supra, 75 Cal.App.5th at p. 337
[same]; McCloud, supra, 63 Cal.App.5th at p. 15, fn. 11 [same].)
We add our voice to this unanimous chorus of precedent.
Petitioners nevertheless proffer five reasons why, in their
view, we should sing a different tune.
First, petitioners argue that the text of section 6605 does
not explicitly specify that its procedures apply only when the
Department’s annual evaluation concludes that the SVP is no
longer an SVP. This is true, but unpersuasive. Although section
6605 does not explicitly prohibit an SVP from directly invoking
its provisions without a favorable evaluation by the Department,
the Act as a whole effectively dictates that prohibition. (Meza v.
Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856
[“‘“When we interpret a statute, ‘ . . . . [w]e do not examine th[e
statutory] language in isolation, but in the context of the
statutory framework as a whole . . . .”’”’]; Lopez, supra, 12 Cal.5th
at p. 858 [“we do not read the text [of a statute] in a vacuum”].)
Section 6604.9 explicitly erects a fork in the procedural road: If
the Department’s annual evaluation recommends unconditional
discharge, section 6604.9 dictates that a petition for
unconditional discharge “shall” be entertained under section 6605
(§ 6604.9, subds. (d) & (e)); but if the Department’s annual
evaluation recommends a conditional release, section 6604.9
dictates that a petition for conditional release “shall” be
entertained under section 6608 (id., subds. (d) & (f)). Section
6608 goes on to provide that a petition for conditional release
“shall be permitted . . . with or without the recommendation or
concurrence of the Director of State Hospitals” (§ 6608, subd. (a));
14
tellingly, section 6605 has no such proviso. Because we must
presume that our Legislature’s omission of such language from
6605 is intentional (Cornette v. Department of Transportation
(2001) 26 Cal.4th 63, 73 [“When one part of a statute contains a
term or provision, the omission of that term or provision from
another part of the statute indicates the Legislature intended to
convey a different meaning.”]; Walt Disney Parks & Resorts U.S.,
Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 879 [same]), we
must presume that the right to directly petition under section
6605—unlike the right to do so under section 6608—is contingent
on the Director’s favorable recommendation. Indeed, this is
confirmed by the fact that section 6605—unlike section 6608—
has no provision for seeking the Director’s input, which dovetails
with the notion that petitioners are not permitted to petition for
unconditional discharge under section 6605 without the
Director’s recommendation.
Second, petitioners argue that section 6604.9, subdivision
(f) authorizes an SVP to directly petition for unconditional
discharge under section 6605. It does not. Subdivision (f)
provides, in pertinent part, that a trial court, “upon receiving a
petition for unconditional discharge, shall order a show cause
hearing, pursuant to the provisions of section 6605 . . . .” (§
6604.9, subd. (f).) Although subdivision (f) itself does not
explicitly limit such petitions to those premised on the
Department’s favorable annual evaluation, subdivision (d) of that
statute spells out that very limit: It obligates the Department to
“file[]” a “petition . . . with the court” if it makes a favorable
recommendation for unconditional discharge, and it is this
petition—that is, one premised on the Department’s favorable
15
evaluation—that triggers the court’s duty under subdivision (f) to
proceed under section 6605.
Third, petitioners argue that sections 6605 and 6608 are
treated similarly for some purposes (such as the fact that the
Department is obligated to simultaneously evaluate an SVP’s
suitability for unconditional discharge under section 6605 as well
as for conditional release under section 6605), such that the two
procedures should be deemed to be similar for all purposes,
including that an SVP may directly petition for relief under
either section. Again, we reject this argument because our
Legislature explicitly provided that a section 6608 petition—but
not a section 6605 petition—may be filed without a favorable
evaluation by the Department. (Compare § 6608, subd. (a) with §
6605.)
Fourth, petitioners argue that a prior version of the Act
suggested that an SVP may directly petition for unconditional
discharge. Petitioners cite the November 2006 version of section
6608, subdivision (a), which provided: “Nothing in this article
shall prohibit the person who has been committed as a sexually
violent predator from petitioning the court for conditional release
or an unconditional discharge without the recommendation or
concurrence of the Director . . . .” (Former § 6608, subd. (a),
italics added; accord, McKee, supra, 47 Cal.4th at p. 1187
[applying this version of the statute]; People v. Reynolds (2010)
181 Cal.App.4th 1402, 1406-1407 [same].) While this language is
undoubtedly supportive of petitioners’ current position, this
language is nevertheless irrelevant because it has since been
deleted and replaced with the current—and, critically, different—
16
language analyzed above.6 (Kaanaana v. Barrett Bus. Servs.
(2021) 11 Cal.5th 158, 170 [“When the Legislature alters
statutory language, ‘as for example when it deletes express
provisions of the prior version,’ the presumption is that it
intended to change the law’s meaning.’”].) Petitioners, citing
Smith 2013, supra, 212 Cal.App.4th at p. 1402, relatedly argue
that the 2006 version created “significant ambiguity” regarding
the relationship between sections 6605 and 6608. This is doubly
irrelevant because the 2006 version has been superseded and
because the “ambiguity” Smith 2013 addressed is whether an
SVP could file a petition for conditional release under section
6605 under a provision of the November 2006 version of the Act
that has since been repealed. (Ibid.)
Lastly, petitioners argue that Smith 2022 and the other
cases reading the Act as making a direct petition for
unconditional discharge contingent upon a favorable Department
evaluation are wrongly decided because they are based on a
“casual reading” of the Act. Aside from its breezily disrespectful
tone, this argument lacks merit for all of the reasons set forth
above.
6 Interestingly, the 2006 version of section 6608 was a
departure from the original 1995 version of the statute, which—
like the current language—contemplated a two-step process: The
1995 version provided that “[n]othing in this article shall prohibit
the person who has been committed as a sexually violent
predator from petitioning the court for conditional release and
subsequent unconditional discharge without the recommendation
or concurrence of the Director of Mental Health.” (§ 6608, subd.
(a), 1995 Stats. ch. 763, § 3.) The voters in Proposition 83
amended this language to the language cited by petitioners, and
then our Legislature in 2013 amended the section to its current
verbiage. (Sen. Bill No. 295, Stats. 2013, ch. 182, § 3.)
17
B. Does due process obligate us to construe the Act
to permit an SVP to directly petition for unconditional
discharge?
Both the federal and California Constitutions guarantee
that a person “may not be deprived of life, liberty, or property
without due process of law . . . .” (Cal. Const., art. I, § 7; U.S.
Const., 14th Amend.)
It is undisputed that petitioners’ liberty is at stake.
Because ‘“commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection”’
(Foucha v. Louisiana (1992) 504 U.S. 71, 80 (Foucha); Addington
v. Texas (1979) 441 U.S. 418, 425), petitioners’ civil commitments
as SVPs implicate their liberty interests and are accordingly
entitled to due process protection. (Otto, supra, 26 Cal.4th at p.
209; Jackson, supra, 75 Cal.App.5th at p. 21.)
Due process has been construed as encompassing both
substantive and procedural rights. We examine each subset of
rights, and then consider petitioners’ further arguments.
1. Substantive due process
In the context of civil commitment, substantive due process
refers to the conditions under which such commitment—and the
resulting deprivation of liberty—is permitted at all, and
“regardless of the fairness of the procedures used.” (Zinermon v.
Burch (1990) 494 U.S. 113, 135.) Civil commitment comports
with substantive due process only if the person committed is
“both [(1)] mentally ill and [(2)] dangerous.” (Foucha, supra, 504
U.S. at p. 77; McKee, supra, 47 Cal.4th at p. 1188 [requiring
‘“proof of dangerousness with the proof of some additional factor,
such as a “mental illness” or “mental abnormality’””].) Once
18
these prerequisites have been established—either by clear and
convincing evidence, or inferentially by a prior finding that the
person is not guilty of a crime by reason of insanity—that person
may be indefinitely committed, “subject to periodic review of the
[person’s] suitability for release.” (Jones v. United States (1983)
463 U.S. 354, 363-364, 368 (Jones); Addington, supra, 441 U.S. at
pp. 427-428; Foucha, at p. 76.) However, if at some later point in
time, circumstances change and the committed person is found no
longer to be mentally ill or dangerous, he or she must be released.
(Foucha, at p. 77; Kansas v. Hendricks (1997) 521 U.S. 346, 364
(Hendricks); McKee, at p. 1194; Hubbart v. Superior Court (1999)
19 Cal.4th 1138, 1177; Cheek, supra, 25 Cal.4th at p. 898.) A
State may permissibly require an indefinitely confined person to
prove his or her entitlement to release by a preponderance of the
evidence. (Jones, at pp. 357-358, 370; McKee, at p. 1191 [“the
requirement that [the committed person], after his initial
commitment, must prove by a preponderance of the evidence that
he is no longer an SVP does not violate due process”].)
The two-step procedure an SVP must follow under the Act
to obtain unconditional discharge when the Department’s annual
evaluation does not recommend such a discharge comports with
these requirements of substantive due process. That is because
an SVP in this circumstance has already been found beyond a
reasonable doubt to be a person with a mental illness and who is
dangerous, is permissibly being indefinitely confined while
subject to periodic review, and has the opportunity establish an
entitlement to release upon proof that he is no longer mentally ill
or dangerous. (Accord, McKee, supra, 47 Cal.4th at p. 1191.)
Whether a committed person is entitled to different procedures
19
for obtaining an unconditional discharge is a question of
procedural due process, to which we turn next.
2. Procedural due process
“Once it is determined that due process applies, the
question remains what process is due.” (Morrissey v. Brewer
(1972) 408 U.S. 471, 481.) Due process is inherently “flexible”
and “calls for such procedural protections as the particular
situation demands” (ibid.; Mathews v. Eldridge (1976) 424 U.S.
319, 334 (Mathews)). In calibrating which procedural protections
a particular situation demands, courts traditionally consider the
following factors: “(1) the private interest that will be affected by
the official action; (2) 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; (3) the
government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail; and (4) the
dignitary interest in informing individuals of the nature,
grounds, and consequences of the action and in enabling them to
present their side of the story before a responsible government
official.” (Otto, supra, 26 Cal.4th at p. 210; Mathews, supra, 424
U.S. at pp. 334-335.)
In arguing that an SVP should be able to directly file a
petition for unconditional discharge under section 6605 without a
favorable evaluation by the Department, petitioners present the
following question: Is an SVP denied procedural due process
because the Act requires the SVP to first petition for a one-year
conditional release before seeking unconditional discharge—
rather than allowing the SVP to directly petition for an
unconditional discharge—when the Department’s most recent
20
evaluation does not find the SVP suitable for an unconditional
discharge?
We conclude the answer is “no.”
Precedent establishes that it does not offend procedural due
process to require an individual who is civilly committed due to a
mental illness that renders him dangerous to proceed through
two steps before an unconditional discharge. That was the
holding in Beck, supra, 47 Cal.App.4th 1676. Beck dealt with an
individual found not guilty by reason of insanity, and the
statutory scheme at issue in that case authorized such an
individual’s unconditional discharge only after he first spent a
year in a community-based outpatient treatment program. (Id.
at p. 1681.) In upholding this two-step procedure as consistent
with procedural due process, Beck cited “three considerations”:
(1) the individual’s “acquittal by reason of insanity entails a
finding that the defendant in fact committed a criminal offense,”
which “supports an inference of potential dangerousness and
possible continuing mental illness,” (2) “the process of evaluating
the defendant for a prolonged period in a noninstitutional setting
has obvious merit” because “[i]t provides a ‘trial run’ for the
defendant’s release, conducted under conditions resembling what
the defendant will later find in the community,” and (3) “the fact
that the participation in an outpatient program involves a lesser
interference with personal liberty than institutional commitment
makes it easier to justify a longer period of restriction.” (Id., at p.
1684.) All three considerations are also true under the Act: (1)
the initial finding of SVP status requires proof of mental illness
and dangerousness beyond a reasonable doubt, (2) the Act
provides for a one-year “trial run” in the community in the form
of conditional release, and (3) conditional release entails less
21
interference with personal liberty than requiring the SVP to
remain in a secure facility. Petitioners attempt to distinguish
Beck on the ground that it involved a person found not guilty by
reason of insanity and hence, in their view, someone whose civil
commitment occurs in lieu of a criminal sentence rather than
after that sentence has been completed, but they are wrong:
Such commitments can extend beyond what would have been the
length of the insanity acquittee’s criminal sentence (Pen. Code, §
1026.5, subd. (b)(1)). This distinction does not in any event
undercut the applicability of Beck’s reasoning to the Act. Thus,
despite petitioners’ repeated complaint that it is “cumbersome,”
we conclude that that Act’s two-step process for obtaining
unconditional discharge does not offend procedural due process.
To be sure, the Act also has an expedited, one-step
procedure for obtaining unconditional discharge that applies
when the Department’s evaluator finds that the SVP is suitable
for such a discharge. The availability of such an expedited
procedure makes eminent sense, for there is no reason for a
period of supervision and treatment if the Department—who has
been treating and supervising the SVP for the duration of his or
her civil commitment—has in its well-informed opinion concluded
that the SVP no longer meets the SVP definition. But we do not
see how the availability of this second, expedited procedure
invalidates the otherwise constitutionally valid two-step
procedure that applies when the Department’s evaluator does not
find the SVP suitable for an expedited, unconditional discharge.
The more traditional analysis of procedural due process
factors also supports our conclusion that procedural due process
does not compel the replacement of the Act’s two-step procedure
for unconditional discharge with a one-size-fits-all, expedited
22
procedure available to all SVPs—including those whom the
Department has found not to be suitable for such a discharge.
First, the private interest at stake when deciding between
these two procedures is the SVP’s liberty interest in being
released into the community without any supervision and
treatment instead of being released in the community with such
supervision and treatment. Under either procedure, the SVP is
in the community and no longer in a secured facility. The
additional intrusion of supervision and treatment, while not
insubstantial, is not demonstrably greater.
Second, the risk of erroneous deprivation of the SVP’s
liberty interest using a two-step procedure rather than a one-step
procedure is minimal, and the value of the two-step procedure is
not just probable but significant. The risk of the SVP being
wrongly denied unconditional discharge is minimal because the
process for assessing eligibility for unconditional discharge is the
same under both procedures—it is evaluated under section 6605;
in this regard, the SVP’s dignitary interest and ability to “present
[his or her] side of the story” is also the same under both
procedures. Indeed, the only real difference between the
procedures is whether the 6605 hearing is held immediately or
after a year of conditional release. On the flip side, the value of
requiring an SVP to proceed through the two-step procedure is
incalculable. “The subtleties and nuances of psychiatric
diagnosis render certainties virtually beyond reach in most
situations” and “makes it very difficult for the expert physician to
offer definite conclusions about any particular patient.”
(Addington, supra, 441 U.S. at p. 430.) As a result, the “process
of determining whether [an SVP] is prepared for successful,”
unconditional discharge “into the community is unquestionably
23
fraught with uncertainty.” (Beck, supra, 47 Cal.App.4th at p.
1683.) The one-year period of conditional release mandated by
the first step of the two-step process is valuable because it
mitigates that risk—and thereby “protects the public”—“by
requiring SVPs [to] demonstrate the ability to spend a year in the
community” without revocation of that status (People v. Smith
(2020) 49 Cal.App.5th 445, 453).
Third, the State’s interest in using the two-step process
that starts with the one-year period of conditional release is, as
noted above, the “strong government interest in protecting the
public from those who are dangerous and mentally ill.” (Otto,
supra, 26 Cal.4th at p. 214; People v. Allen (2008) 44 Cal.4th 843,
857 [“The [Act] was enacted to . . . confine and treat . . .
individuals until it is determined they no longer present a threat
to society.”].)
3. Petitioners’ arguments
Petitioners resist our conclusion with what boil down to five
arguments.
First, they argue that the two-step procedure violates
procedural due process because it hinges an SVP’s right to
petition directly for unconditional discharge on the arbitrary
“whims” of the Director. This argument ignores that the Director
is bound by the conclusions and recommendations of the
“professionally qualified person” who annually evaluates the
SVP, and who is governed by a code of ethics. (E.g., Rand v.
Board of Psychology (2012) 206 Cal.App.4th 565, 584 [detailing
ethical standards, including the ethical duty to objectivity].) The
Director lacks the power to second guess the evaluator (Landau
2011, supra, 199 Cal.App.4th at pp. 37-39; Smith 2013, supra,
24
212 Cal.App.4th at p. 1399, fn. 2), which all but eliminates the
risk of the Director injecting caprice into the process.
Second, petitioners argue that denying SVPs the power to
directly petition for unconditional discharge “effectively” amounts
to a “lifetime commitment.” This argument ignores the plain text
of the Act, which entitles an SVP, without a favorable
Department evaluation, to petition either (1) for unconditional
discharge under section 6605 after one year of conditional release
(§ 6608, subd. (m)), and (2) to petition for conditional release at
any time (§ 6608, subd. (a)).
Third, petitioners argue that the United States Supreme
Court’s decision in Hendricks, supra, 521 U.S. 346, dictates a
holding in their favor. They are wrong. To be sure, Hendricks
upheld Kansas’s sexual violent predator law, and that law had a
provision—unlike the Act—which authorized SVPs to petition for
unconditional discharge. But Hendricks addressed whether the
Kansas act was constitutionally defective because its commitment
procedures authorized commitment based on a finding of a
“mental abnormality” rather than a “mental illness” (id. at p.
350); Hendricks had no occasion to examine the constitutional
sufficiency of the Kansas act’s release procedures. That the
Kansas act happened to permit SVPs to file petitions for
unconditional discharge played no role in the court’s holding or
analysis, and thus has no weight here. (People v. Casper (2004)
33 Cal.4th 38, 43 [“It is axiomatic that cases are not authority for
propositions not considered.”].)
Fourth, petitioners argue that there has to be a “tradeoff”
whenever our Legislature or the voters amend the Act. As a
result, petitioners continue, when the voters in 2006 changed the
Act to provide for indefinite confinement rather than a two-year
25
confinement, there needed to be “some sort of offsetting
protections to ensure continued ability of SVP defendants to
obtain release at the appropriate time.” Petitioners are wrong.
They cite no authority for the proposition that a statute may be
amended only if a change in the statute is accompanied by an
“offsetting” change. What is more, petitioners’ suggestion that
we get into the business of overseeing how legislation is amended
is a dangerous one. They ask us to invent and then give
ourselves a power to dictate how bills must be amended and then
to evaluate each amendment to see it is appropriately “offset” by
other provisions. The separation of powers makes this suggestion
profoundly unwise if not downright foolish.
Lastly, petitioners argue that granting SVPs the right to
directly petition for unconditional discharge is compelled by
procedural due process because SVPs have no other available
remedy should they cease qualifying as “sexually violent
predators” in the interregnum periods between annual
evaluations. We reject this argument. As noted above, if the
Department develops “reason to believe” that an SVP at any
time no longer qualifies as an SVP, the Department is obligated
to file a petition for habeas corpus relief under section 7250
seeking an unconditional discharge. (§ 6605, subd. (c).) The SVP
also has a right to file a habeas corpus petition under section
7250. (§ 7250.) Petitioners assert that 7250’s procedures are not
as “petitioner friendly” as section 6605’s (because SVPs under
section 6605 are entitled to appointed counsel, to appointed
experts, and to a jury trial where the State is required to prove
their continued SVP status beyond a reasonable doubt), that
their right to petition for habeas relief under section 7250 is
therefore constitutionally inadequate, and that we must therefore
26
construe the Act to permit them to directly petition for
unconditional discharge under section 6605.
We reject this argument as well because the central
premise of the argument—namely, that habeas procedures for
release from custody are constitutionally inadequate to serve as a
safety valve unless they are a mirror image (or, at a minimum,
comparable) to the procedures used to place the person in
custody—is incorrect. A convicted felon petitioning for habeas
corpus relief from his conviction is not denied procedural due
process merely because the substantive standards and
procedures applicable when he seeks release through a habeas
corpus petition (where the felon is entitled to appointed counsel
only upon making a prima facie case for relief, where he bears
the burden of showing that his confinement is unlawful, and
where he presents his claim to a judge) are less favorable than
those applicable at the trial where he was convicted (where he is
entitled to appointed counsel during the entire procedure, where
the State bears the burden of establishing his guilt beyond a
reasonable doubt, and where the trier of fact is a jury). The same
principle applies here, and thus obligates us to reject petitioner’s
argument that section 7250 is inadequate merely because it does
not employ the same procedures as section 6605, which, as noted
above, are identical to the procedures used to impose SVP status
in the first place. Instead, section 7250—like the writ of habeas
corpus generally—was meant to operate as a bona fide safety
valve available when new evidence showing that the SVP is no
longer a “sexually violent predator” “completely undermines”
either the initial finding of SVP status or the Department's most
recent annual evaluation (People v. Johnson (2015) 235
Cal.App.4th 80, 88-89; Smith 2022, supra, 75 Cal.App.5th at pp.
27
344-345). Where, as here, no such showing has been made,
procedural due process is not offended by requiring SVPs to
proceed under the Act's usual procedures.
Indeed, were the law to the contrary—such that section
7250’s failure to employ section 6605’s procedures meant that
SVPs were entitled to directly invoke section 6605’s procedures at
any time—then section 6608 and much of section 6604.9 would be
effectively nullified. But our task is to give effect to the
provisions of the Act, not to wipe them off the books. (Tuolomne
Jobs & Small Business Alliance v. Superior Court (2014) 59
Cal.4th 1029, 1039 [“‘An interpretation that renders statutory
language a nullity is obviously to be avoided.’”].)
DISPOSITION
The orders are affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
28