IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
ROMEO MONTAGUE,
Defendant and Appellant.
No. H012345
(Santa Clara County Superior
Court No. 123456)
_______________________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
DONATIEN DE SADE,
Defendant and Appellant.
No. H012340
(Santa Clara County Superior
Court No. 123450)
APPELLANT'S OPENING BRIEF
____________________
Appeal from a Judgment Imposed
By the Santa Clara County Superior Court,
Elizabeth Tudor, Judge
____________________
SIXTH DISTRICT APPELLATE PROGRAM
Jonathan Grossman 154452
Staff Attorney
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241-6171
Attorney for Appellants
Romeo Montague
Donatien de Sade
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
ROMEO MONTAGUE,
Defendant and Appellant.
No. H012345
(Santa Clara
County Superior
Court No. 123456)
_______________________________________________
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
DONATIEN DE SADE,
Defendant and Appellant.
No. H012340
(Santa Clara
County Superior
Court No.
123450)
APPELLANTS' OPENING BRIEFSTATEMENT OF APPEALABILITY
This appeal is from a final judgment ordering an involuntary
commitment under the Sexually Violent Predators (SVP) Act (Welf. & Inst.
Code, § 6600, et seq.)1 or from an appealable order after judgment affecting
appellants' substantial rights which finally resolves the issues between the
parties. It is appealable under Code Civil Procedure section 904.1,
subdivisions (a)(1) and (a)(2).
Unless otherwise specified, all further statutory references are to the
Welfare and Institutions Code.
1
1
STATEMENT OF THE CASE
]
STATEMENT OF EVIDENCE
]
ARGUMENT
I.
THE COURT LACKED THE AUTHORITY
TO
RETROACTIVELY
CHANGE
APPELLANTS' OLD COMMITMENTS TO
LIFE TERMS.
A.
The Court's Purported Modification of a Final Judgment
was Void Because it Lacked Jurisdiction.
In both cases, the court modified the initial judgment of a two-year
commitment to be retroactively an indeterminate term. (Mont. CT 224; Sade
CT 158.) De Sade argued that the court lacked the power to modify a final
judgment (Sade 2RT 17), and Montague joined in De Sade's argument
(Mont. 4RT 177).
Without statutory authorization, a court lacks the jurisdiction to
modify a final order. Nowhere in the SVP Act or in any relevant statutory
scheme is the court given the authority to modify a final judgment of an SVP
commitment to increase the time of confinement.
An order of the court may be challenged at any time, even without an
objection below “ 'for lack of personal or subject matter jurisdiction or for
granting relief that the court had no power to grant . . . .' [Citation.]” (Plaza
Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1,
20.) This is because the court lacks fundamental jurisdiction. (Ibid.)
Whether a court has jurisdiction is an issue of law which is subject to de novo
review. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123.)
“[A]fter entry of judgment, a trial court has no further power to rule
on a motion for reconsideration.” (APRI Ins. Co. S.A. v. Superior Court
(1999) 76 Cal.App.4th 176, 181.) “The issue is jurisdictional. Once the trial
court has entered judgment, it is without power to grant reconsideration.”
(Id. at p. 182.)
The SVP Act permits modification of a judgment of commitment in
2
limited circumstances. Under sections 6605 and 6608, the patient or the
Department of Mental Health may petition the court to reduce the time for
confinement and to conditionally or unconditionally release the patient.
Nowhere does the Act state a judgment of commitment can be modified to
lengthen the term of confinement. The orders committing Montague in
October 2002 and De Sade in May 2005 under the SVP Act were final
judgments. The court lacked jurisdiction in June 2007 to modify either
judgment to make them longer.
An order by a court lacking fundamental jurisdiction is void. (See,
e.g., Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-201
[orders after notice of appeal was filed was void for lack of jurisdiction];
Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [orders
beyond the scope of a remittitur was void for lack of jurisdiction]; Zilog v.
Superior Court (PNC Indemnity Co.) (2001) 86 Cal.App.4th 1309, 1323;
[orders by a court which improperly refused to disqualify itself were void].)
Consequently, the orders of June 1, 2007, converting the old final judgments
of two years to be indeterminate terms, were void.
B.
The Statutory Language Does not Permit Retroactively
Changing Commitment Orders.
In moving to modify the initial commitment order, the government
argued that, in amending sections 6604 and 6604.1, the Legislature and the
voters converted previous two-year commitments to indeterminate terms
without the need of any judicial action other than amending previous
judgments of commitment to be indeterminate terms. (Mont. CT 93; Sade
CT 24.) Montague and De Sade objected to modifying the order to be
retroactively. (Mont. CT 139-194; Sade CT 71-145.)
The current statutory language does not permit retroactively changing
a final judgment. “ 'Matters of interpreting and applying a statute are
questions of law.' [Citations] Thus, we independently construe statutory
law . . . ” (In re Schmidt (2006) 143 Cal.App.4th 694, 704; In re Chavez
(2004) 114 Cal.App.4th 989, 994 [whether an amendment can be applied
retroactively is “a pure question of law to which we apply our independent
review.”].)
3
“The applicable principles of statutory construction are well settled.
In construing statutes, we must determine and effectuate legislative intent.
To ascertain intent, we look first to the words of the statutes, giving them
their usual and ordinary meaning. In analyzing statutory language, we seek
to give meaning to every word and phrase in the statute to accomplish a
result consistent with the legislative purpose.” (People v. Cheek (2001) 25
Cal.4th 894, 899, citations, internal quotation marks, and ellipsis omitted.)
“A statute must be construed in the context of the entire statutory scheme of
which it is a part, in order to achieve harmony among the parts.” (People v.
Lewis (1993) 21 Cal.App.4th 243, 254.) “In interpreting a voter initiative
. . . , we apply the same principles that govern statutory construction.”
(Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900.)
In 2006, an initiative was placed on the November ballot to address
sex offenders, including the criteria for committing them under the SVP Act.
(Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) (Prop. 83).) The
official title of Proposition 83 is “The Sexual Predator Punishment and
Control Act: Jessica's Law.” (Prop. 83, § 1.) In anticipation of the ballot
initiative, the Legislature passed its own Sexual Predator Punishment and
Control Act (SPPCA), effective September 20, 2006. (Stats. 2006, ch. 337, §
1.) Proposition 83 also passed. Both laws broadened the reach of the SVP
Act to make more sex offender eligible for commitment. Both laws amended
section 6604 to make an SVP commitment to be an indeterminate term.
(Stats. 2006, ch. 337, § 55, amending § 6604; Prop. 83, § 27, making the
same amendment to § 6604.)
Previously, section 6604 stated: “If the court or jury determines that
the person is a sexually violent predator, the person shall be committed for
two years to the custody of the State Department of Mental Health . . . . ”
(emphasis added). (Stats. 2000, ch. 420, § 3.) The amendments replaced the
words “two years” with “an indeterminate term.” Further, section 6604 no
longer retains language that “the person shall not be kept in actual custody
longer than two years unless a subsequent extended commitment is obtained
from the court incident to the filing of a petition for extended commitment”
or unless the court orders conditional or unconditional release sooner. (See
Mont. CT 217.)
Both SPPCA and Proposition 83 amended section 6604.1.
4
Previously, it stated:
(a) The two-year term of commitment
provided for in Section 6604 shall commence on
the date upon which the court issues the initial
order of commitment pursuant to that section.
The initial two-year term shall not be reduced by
any time spent in a secure facility prior to the
order of commitment. For any subsequent
extended commitments, the term of commitment
shall be for two years commencing from the date
of the termination of the previous commitment.
(b) The person shall be evaluated by two
practicing psychologists or psychiatrists, or by
one practicing psychologist and one practicing
psychiatrist, designated by the State Department
of Mental Health.
The provisions of
subdivisions (c) to (i), inclusive, of Section 6601
shall apply to evaluations performed for
purposes of extended commitments. The rights,
requirements, and procedures set forth in Section
6603 shall apply to extended commitment
proceedings.
(Stats. 2000, ch. 420, § 4, emphasis added.)
The amendments eliminated the second and third sentences in
subdivision (a) and changed the phrase in the subdivision the phrase
“two-year term” to “indeterminate term.” Subdivision (a) now reads:
The indeterminate term of commitment
provided for in Section 6604 shall commence on
the date upon which the court issues the initial
order of commitment pursuant to that section.
(Stats. 2006, ch. 337, § 56; Prop. 83, § 28, emphasis added). In the end, the
amendments also changed the last phrase of subdivision (b) to read: “shall
apply to all commitment proceedings” (emphasis added). (See Mont. CT
217.) The statute retains the phrase “extended commitments” in the second
sentence of subdivision (b).
1.
The plain language of section 6604.1 provides for
prospective application.
As appellants argued below, the plain language did not provide for
retroactive application of the amendments. (Mont. CT 172-179, 183-184;
5
Sade 71-76.) Nowhere in section 6604 or 6604.1 does it state that when a
court had made an order for a two year commitment, it becomes an
indeterminate term.
Section 6604 is a continuation of a procedure which begins with
section 6601. If the Department of Mental Health recommends a petition to
be filed, the district attorney may do so. (§ 6601.) There is a right to a
probable cause hearing. (§ 6602.) And there is a right to the assistance of
counsel, a jury, and a unanimous verdict at a trial. (§ 6603.) At the trial, held
under section 6603, the burden of proof at the trial is “beyond a reasonable
doubt.” (§ 6604.) If there is a verdict that the person does not qualify, he
shall be discharged. (Ibid.) If there is a verdict that he qualifies, “the person
shall be committed for an indeterminate term” (previously, it said that “the
person shall be committed for two years”). (Ibid.)
Thus, the plain language and the context of section 6604 demonstrates
that it prescribes the disposition of a pending petition. Once the petition has
been adjudicated under sections 6601 through 6603, section 6604 requires
either an order to commit or discharge the person, depending on the verdict.
Nowhere does section 6604 purport to affect an order or final judgment
resulting from a petition that is no longer pending.
The plain language of new subdivision (a) of section 6604.1 simply
states that when a commitment of an indeterminate term is made pursuant to
section 6604, the commitment commences when the court makes the order:
“The indeterminate term of commitment provided for in Section 6604 shall
commence on the date upon which the court issues the initial order of
commitment pursuant to that section” (emphasis added). Section 6604.1
does not expressly or impliedly state that existing commitments become
indeterminate. On the contrary, by its own terms, new section 6604.1 applies
only when the court orders an indeterminate term under section 6604. No
court had ordered pursuant to section 6604 that appellants' commitments be
indeterminate terms; all orders made by the courts pursuant to section 6604
were that appellants' commitments were for two years.
Section 6604.1, subdivision (b) continues to state that “[t]he
provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to
evaluations performed for purposes of extended commitments. The rights,
requirements, and procedures set forth in Section 6603 shall apply to all
commitment proceedings.” This demonstrates a need to continue to file
6
commitment extension petitions for those whose two year commitments
were expiring and still in need for confinement. The government argues this
language refers to the procedures set forth in sections 6605 through 6608.
(Mont. CT 96-101, 196-198; Sow. CT 27-32, 150.) But the procedures in
sections 6605 through 6608 discuss how to shorten a commitment, not how
to extend it. Further, sections 6605 and 6608 already describe what rights
apply in those proceedings, such as the number of evaluations and who may
file petitions to the court. (§§ 6605, subds. (a) & (b) [petition by the patient],
subd. (f) [petition by the Department], 6607 [petition by the Department];
6608, subd. (a) [petition by the patient].) Incorporating provisions of section
6601 concerning evaluations and how a petition is authorized would be
redundant and in some places contradictory. (See, e.g., § 6601, subd. (i)
[petition can be filed only by the county district attorney].) Rendering
portions of the Act nugatory or in conflict with other provisions violates the
rule of statutory construction that the language should be harmonized to give
each word meaning. (Cheek, supra, 25 Cal.4th at p. 899.)
Further, “ '[w]hen the Legislature amends a statute without changing
those portions of the statute that have previously been construed by the
courts, the Legislature is presumed to have known of and to have acquiesced
in the previous judicial construction.' [Citations.]” (People v. Atkins
(2001) 25 Cal.4th 76, 89-90.) The courts have interpreted the language in
section 6604.1 concerning extended commitment petitions to mean the filing
of a new petition at the end of the two year commitment under section 6601
and the judicial proceeding under sections 6602 through 6604. (People v.
Munoz (2005) 129 Cal.App.4th 421, 429; Cooley v. Superior Court
(Edwards) (2001) 89 Cal.App.4th 785, 788-789.) There is no indication the
Legislature intended to alter this construction.
By their own terms, neither new section 6604 nor new section 6604.1
apply retroactively to appellants' previous two-year commitments.
2.
There was no clear intent to create retrospective
legislation.
Appellants argued below that the legislative history did not
demonstrate that the new language in the SVP Act provided for retrospective
application of the amendments. (Mont. CT 176-177; Sade CT 83-87.) The
government relied on the language in subdivision (a) of section 6604.1 that
“[t]he indeterminate term of commitment provided for in subdivision
7
Section 6604 shall commence on the date upon which the court issues the
initial order of commitment pursuant to that section.” (Mont. CT 91-93;
Sade CT 22-24.) To the government, the phrase “initial order” obliquely
indicates some intent to convert existing two-year commitments to
indeterminate terms without the need of any judicial review. (Mont. 94-100;
Sade CT 25-32.) The trial court agreed. (Mont. CT 224; Sade CT 158;
Mont. 5RT 187; Sade 3RT 32.)
A “retrospective law is one which affects rights, obligations, acts,
transactions and conditions which are performed or exist prior to the
adoption of the statute.” (Evangelatos v. Superior Court (1988) 44 Cal.3d
1188, 1206, internal quotation marks omitted.) Here, appellants were
committed with the right to be released from custody in two years; although
the government still had the authority to re-commence commitment
proceedings if it could prove beyond a reasonable doubt that he still qualified
as a sexually violent predator. (Former §§ 6604, 6604.1.) The commitment
extension petition was not a continuation of the old commitment but the
beginning of a new proceeding. (Munoz, supra, 129 Cal.App.4th at p. 429.)
Thus, each appellant had a vested right to be released upon the expiration of
the two-year term (unless the government could prove in new proceedings
that a new commitment was necessary). This qualified as a substantive
liberty interest. Extinguishing this liberty interest was a retrospective
application of the law to appellants' detriment.
There is a strong presumption against applying legislation
retrospectively. To rebut this presumption, there must be clear proof that
legislation is intended to apply retrospectively. “A basic canon of statutory
interpretation is that statutes do not operate retrospectively unless the
Legislature plainly intended them to do so.” (Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 234; cf. Civ. Code, § 3; Code Civ.
Proc, § 3; Pen. Code, § 3.) The presumption against retrospective legislation
applies to changes in SVP laws (see, e.g., Garcetti v. Superior Court (1999)
76 Cal.App.4th 685, 693) and to changes made by the electorate
(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1194). As the state
supreme court explained, “ 'a retrospective operation will not be given to a
statute which interferes with antecedent rights . . . unless such be “the
unequivocal and inflexible import of the terms, and the manifest intention of
the legislature.” ’ [Citation.]” (Evangelatos, supra, 44 Cal.3d at p. 1207,
8
emphasis omitted, quoting United States v. Security Industrial Bank (1982)
459 U.S. 70, 79-80.)
In Evangelatos, supra, 44 Cal.3d 1188, the voters approved
Proposition 51 which limited liability of joint tortfeasors for noneconomic
damages. (Id. at p. 1192.) The clear purpose of the initiative was to limit
damage awards. But the Supreme Court held there was no evidence this limit
would apply retroactively to torts committed before the initiative was
enacted. (Id. at pp. 1209-1221.) Although there was much information in
the voter pamphlet concerning the need to limit damage awards, there was no
expressed language in the statute, the voter pamphlet, or elsewhere to
indicate an intent to apply it retrospectively. “[I]t appears rather clear that
the drafters of Proposition 51, in omitting any provision with regard to
retroactivity, must have recognized that the statute would not be applied
retroactively.” (Id. at p. 1211.) Similarly, here, there was no clear language
in the language of the statute, voter pamphlet, or elsewhere to indicate it
would apply retrospectively. The SPPCA was 83 pages long and contained
62 different sections. Proposition 83 was a long ballot initiative, with 33
different sections. They never stated that the indeterminate term provision
would apply retroactively to patients already committed.
In search for clues that Proposition 83 should apply retroactively, the
government pointed to a transcript of a Legislative hearing held on October
3, 2006. (Mont. CT 94, 134-136; Sade CT 25, 65-66.) (CT 141-142.) The
transcript was irrelevant in determining the intent of the voters since the
material was presented neither to the voters nor to the drafters. Nor was it
relevant to the construing the SPPCA since the hearing occurred after it was
signed by the governor on September 20, 2006. (See Stats. 2006, ch. 337.)
The Supreme Court has “frequently stated, . . . that the statements of an
individual legislator, including the author of a bill, are generally not
considered in construing a statute, as the court's task is to ascertain the intent
of the Legislature as a whole in adopting a piece of legislation. [Citations.]”
(Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062.)
In any event, the legislative history to which the government refers is
simply the view of some people that the change in the law would make SVP
commitments indeterminate. (Mont. CT 137; Sade CT 66.) But this is a
standard method of referring to prospective changes in the law; it does not
indicate an intent to transform existing two-year commitments to
9
indeterminate terms, only that new commitments would be indeterminate.
The government argued the case of Rio Linda Union School District
v. Workers' Compensation Appeals Board (2005) 131 Cal.App.4th 517
suggests that retrospective application of a statute can be implied. (Mont. CT
102-103; Sade CT 33-34.) In that case, an injured employee made a workers'
compensation claim. While the matter was pending before a workers'
compensation judge, the applicable statutes were repealed and replaced by
new legislation. (Rio Linda, supra, at p. 521.) The court observed the
Legislature expressly stated the new statutes were to apply to pending claims
but would not affect existing awards. (Id. at p. 529.) It also observed that
employee's right to benefits did not vest until an award was ordered. (Id. at p.
528.) The court held the statute should be applied as the Legislature
expressly stated: to pending claims but not to claims already settled. (Id. at p.
531.) Since the court followed the expressed directions of the Legislature
and did not modify any orders that were made before the amendment took
effect, this case did not support the government's position that amendments
could silently modify old orders.
The government also cited Albertson v. Superior Court (2001) 25
Cal.4th 796 in which the Legislature amended a statute that permitted the
government to access an SVP patient's mental health records for litigation
purposes. The government asserted this indicated retroactive application of
a statute can be implied. (Mont. CT 101-102; Sade CT 32-33.) On the
contrary, there was no mention in the Albertson opinion that the statute was
being applied retroactively. Instead, the court concluded that a procedural
change in discovery rules would apply prospectively to pending litigation.
(Id. at p. 804.) Here, the government and the superior court concede that
modifying appellants' initial commitment orders was a retrospective
application of the SVP amendments. The change in the law affected
appellants' substantive rights to liberty. Absent clear indication from the
Legislature or the voters, the courts presume the outcome was not intended.
Indeed, in Doe v. Schwarzenegger (E.D. Cal. 2007) 476 F.Supp.2d
1178, the court held that the Proposition 83 did not apply retroactively.
Though the new law prohibited registered sex offenders from living within
2000 feet of a school, the court concluded the new law did not apply
retrospectively to offenders already residing within the zone. (Id. at pp.
1180-1181.) The initiative “evinces no textual intent of retroactivity.” (Id. at
10
p. 1182.)
“To infer retroactivity is no small feat. '[A] statute will not be applied
retroactively unless it is very clear from extrinsic sources that the Legislature
the voters must have intended a retroactive application.' (Evangelatos, 44
Cal.3d at 1208.)” (Schwarzenegger, supra, 476 F.Supp.2d at p. 1182.)
Given the need to clearly state whether a statute should be applied
retrospectively, it is not reasonable to conclude that the Legislature and the
electorate intended to obscure its intent.
11
C.
Retroactively Changing Appellants' Two-Year
Commitments to an Indeterminate Terms is Unconstitutional.
To the extent the statutory language is ambiguous, it should be
construed to avoid applying it retrospectively because “constitutionally
doubtful interpretations should be avoided.” (Jones v. United States (2000)
529 U.S. 848, 851; accord, People v. Hernandez (2003) 30 Cal.4th 835, 868;
Doe, supra, 476 F.Supp.2d at p. 1181.) If the statute were to require
retrospective conversion of existing two-year commitments to indeterminate
terms, then it would violate constitutional principles of separation of powers,
prohibitions against bills of attainder, and the requirements of due process
and fair notice.
“The issue of whether the orders run afoul of a constitutional right is
purely a question of law, and we therefore consider it de novo.” (Maggi v.
Superior Court (Alkosser) (2004) 119 Cal.App.4th 1218, 1224; DVD Copy
Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 889-890, citing Fiske v.
State of Kansas (1927) 274 U.S. 380, 385-386.)
1.
The constitutional doctrine of separation of powers
prohibits legislation which amends final
judicial judgments.
According to the government, the Legislature and the voters have
already converted the initial two year commitments to be indeterminate
terms. “There is no need for a subsequent hearing, given the implications of
the clear intent to make the indeterminate term of commitment retroactive to
[appellants'] initial commitment, pursuant to section 6604.” (Mont. CT 93;
Sade CT 24.) De Sade argued that legislation which retroactively modifies a
final judgment violates the doctrine requiring a separation of powers
between the different branches of the state. (Sade 2RT 17.) Montague
joined in De Sade's argument. (Mont. 4RT 167, 177.)
Under the separation of powers doctrine, only a court can change a
final judgment. The executive and legislative branches lack the authority to
modify a final judgment. (People v. Bunn (2002) 27 Cal.4th 1, 22-23; see
also Plaut v. Spendthrift Farms (1995) 514 U.S. 211.)
In Plaut, supra, 514 U.S. 211, Plaut sued in 1987, but the case was
dismissed because it was filed after the statute of limitations. (Id. at pp.
213-214.) Congress passed a law in 1991 that extended the statute of
limitations for cases such as Plaut's. (Id. at pp. 214-215.) After 1991, Plaut
12
attempted to revive the suit. The Supreme Court held that it violated the
doctrine of separation of powers for Congress to alter a final judgment and
revive a case that had been dismissed. (Id. at pp. 225-229.) “When
retroactive legislation requires its own application in a case already finally
adjudicated, it does no more and no less than 'reverse a determination once
made, in a particular case.' ” (Id. at p. 225.) While legislation may impact a
court case still pending (in the trial court or on direct appeal), it may not alter
a final judgment in which the appeal has run its course. (Id. at pp. 226-228.)
Similarly, “[t]he California Constitution establishes a system of state
government in which power is divided among three coequal branches (Cal.
Const., art. IV, § 1 [legislative power]; Cal. Const., art. V, § 1 [executive
power]; Cal. Const., art. VI, § 1 [judicial power]), and further states that
those charged with the exercise of one power may not exercise any other
(Cal. Const., art. III, § 3).” (Bunn, supra, 27 Cal.4th at p. 14.) The state
separation of powers doctrine is independent of the federal doctrine, but
federal principles have been applied in state cases. The California Supreme
Court adopted the reasoning in Plaut, supra, 514 U.S. 211 as “both
consistent with California law and persuasive for state separation of powers
purposes.” (Id. at p. 5.)
In Bunn and the companion case of People v. King (2002) 27 Cal.4th
29, the defendants were charged with certain sex offenses. The cases were
dismissed because the statute of limitations had expired. After their
judgments became final, the Legislature passed Penal Code section 803,
subdivision (g) (now subdivision (f)) which at the time permitted reviving
the prosecution for certain sex crimes. The California Supreme Court held
the statute cannot be used to revive cases in which there was already a final
judgment. (Bunn, supra, 27 Cal.4th at pp. 22-23; King, supra, at p. 31; see
also Perez v. Roe 1 (2006) 146 Cal.App.4th 171, 183 [statute reviving tort
claims for molestation could not apply to a case which had been dismissed].)
In Mandel v. Myers (1981) 29 Cal.3d 531, a court entered a judgment
for attorney fees payable by the state to the other party. The Legislature
reacted by passing legislation preventing the appropriation of funds to satisfy
the judgment. The California Supreme Court held the legislation violated the
state's separation of powers doctrine. Since there was a final judgment and
money was already appropriated which could pay for it, the Legislature
could not alter the effects of the judgment. (Id. at pp. 545-549.) “Just as the
13
courts may not reevaluate the wisdom or merits of statutes which have
secured final passage by the Legislature, the Legislature enjoys no
constitutional prerogative to disregard the authority of final court judgments
resolving specific controversies within the judiciary's domain.” (Id. at p.
547.)
Here, the government sought to convert retroactively Montague's
2002 judgment of the initial two-year commitment. This court affirmed the
judgment in 2004, and the remittitur was issued on April 1, 2004. (People v.
Montague (Jan. 13, 2004, H025204) [nonpub. opn.].) It has been a final
judgment for three years. The government also sought to convert
retroactively De Sade's 2005 judgment of the initial two-year commitment
entered on May 2, 2005. The time for appealing expired on July 1, 2005. It
became a final judgment.
Even if the 2006 amendments to sections 6604 and 6604.1 were
intended to apply retroactively, the Legislative and Executive Branches
lacked the power to modify the final judgments.
2.
Legislation which singles out a class of people for
retroactive application constitutes an
impermissible bill of attainder.
Again, according to the government, the Legislature and the voters
have already converted the initial two year commitments of those committed
under the SVP Act to be indeterminate terms without the requirement of a
judicial hearing. (Mont. CT 93; Sade CT 24.) Under the bill of attainder
clause of the United States Constitution (art. I, § 10; also Cal. Const., art. I,
9), the Legislature and the electorate lacked the authority to take a class of
people and adjudge them qualified for indeterminate terms without proper
judicial process.
Although there was not an objection on this ground, the constitutional
issue is a pure issue of law and can be reviewed on the undisputed facts; thus,
the issue is appropriately before this court. (Hale v. Morgan (1978) 22
Cal.3d 388, 394 [“a litigant may raise for the first time on appeal a pure
question of law which is presented by undisputed facts.”].)
Originally, a bill of attainder was a bill passed by the English
parliament sentencing an individual to death and usually disinheriting the
prospective heirs. (See United States v. Brown (1965) 381 U.S. 437,
441-442.) The parliament also passed bills of pain and penalties which
14
sentenced individuals to lesser punishments. (Id. at pp. 441-442; see also
Fletcher v. Peck (1810) 10 U.S. (6 Cranch) 87, 138 (opn. of Marshall, C.J.).)
All of the colonies, as well as the federal government, prohibited bills of
attainder in their constitutions. (Id. at p. 442.) The Supreme Court concluded
the bill of attainder clause was not meant to apply narrowly to legislative
death sentences, “rather [it was] as an implementation of the separation of
powers, a general safeguard against legislative exercise of the judicial
function, or more simply – trial by legislature.” (Id. at p. 442.)
The bill of attainder clause also applies to classes of individuals.
“[L]egislative acts, no matter their form, that apply either to named
individuals or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial are bills of attainder
prohibited by the Constitution.” (Brown, supra, at 381 U.S. pp. 448-449,
citation omitted.)
The bill of attainder clause applies to “punishment.” (Brown, supra,
381 U.S. at pp. 447-448.) Punishment in this context, however, is broader
than the term is used for the ex post facto clause or double jeopardy clause:
Historical considerations by no means compel
restriction of the bill of attainder ban to instances
of retribution. A number of English bills of
attainder were enacted for preventative purposes
– that is, the legislature made a judgment,
undoubtedly based largely on past acts and
associations . . . . that a given person or group
was likely to cause trouble (usually, overthrow
the government) and therefore inflicted
deprivations upon that person or group in order
to keep it from bringing about the feared event
(Id. at p. 497.) The constitutional ban on bills of attainder rendered invalid
legislation prohibiting Communists and former Communists from
participating in trade unions. (Id. at pp. 449-450; see also United States v.
Lovett (1946) 328 U.S. 303, 313-318 [an act of Congress cutting off
appropriations for three government employees declared to be “subversives”
was an unconstitutional bill of attainder].) It rendered invalid legislation
prohibiting former Confederate partisans from becoming priests (Cummings
v. Missouri (1867) 71 U.S. 277, 322-330) or from becoming attorneys
practicing in federal court (Ex Parte Garland (1867) 71 U.S. 333, 374-381).
15
If sections 6604 and 6604.1 applied retroactively, the effect would be
to incarcerate for life a class of people who had a two-year commitment.
Even if a court now has the authority to render a new indeterminate term after
proper judicial proceedings, there was never a court judgment committing
appellants and other current SVP patients to indeterminate terms (other than
the court stating what the Legislature and electorate decided). The
Legislature and the electorate lacked the constitutional authority to take a
class of people and adjudge them qualified for indeterminate terms without
proper judicial process.
3.
Retroactive deprivation of a liberty interest violates
due process.
Retroactively extending appellants' initial commitments violated due
process because, at the time of the court order, there did not exist a
commitment to modify. Montague's initial 2002 commitment expired in
October 2004. His most recent commitment extension expired in October
2006. (See Mont. CT 2.) De Sade's initial 2005 commitment expired on
May 2, 2007. On June 1, 2007, the court purported to convert existing
commitments from two-year commitments to be indeterminate terms.
(Mont. CT 224; Sade CT 158.) But by June 2007, appellants were not
serving their SVP commitments. As appellants pointed out in the court
below (Sade 83, 87-90; How RT 167, 177 [joining in De Sade's arguments]),
no commitment existed for the court to convert to indeterminate terms.
A fundamental principle in the United States is that the people are
presumed to be free. The government cannot take away a person's freedom
without sufficient legal cause and without following proper procedures. “In
our society liberty is the norm . . . .” (United States v. Salerno (1987) 481
U.S. 739, 755.) “[T]he right to be free from Government confinement . . . is
the very essence of the liberty protected by the Due Process Clause.” (Reno
v. Flores (1993) 507 U.S. 292, 346; see also O’Connor v. Donaldson (1975)
422 U.S. 563, 580 [“confinement of an individual for any reason, is a
deprivation of liberty which the state cannot accomplish without due process
of law”]; Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1150.)
This principle applies in civil commitments.
“[F]reedom from
physical restraint ‘has always been at the core of the liberty protected by the
Due Process Clause from arbitrary government action.’ ” (Kansas v.
Hendricks (1997) 521 U.S. 346, 356, quoting Foucha v. Louisiana (1992)
16
504 U.S. 71, 80.)
Accordingly, under the Fourteenth Amendment, when a person is
detained for psychiatric reasons, he or she must be granted a hearing before
an impartial hearing officer within a reasonable time. (Project Release v.
Prevost (2d Cir. 1983) 722 F.2d 960, 975; Doe v. Gallinot (9th Cir.
1981) 657 F.2d 1017, 1021-1025.) The patient must be provided a court
hearing within a reasonable time for any extended involuntary commitment.
(Zinermon v. Burch (1990) 494 U.S. 113, 136-138; Specht v. Patterson
(1967) 386 U.S. 605, 610.) When the commitment terminates, the state has
no authority to hold the patient, and he or she must be released. (McNeil v.
Director, Patuxent Institution (1972) 407 U.S. 245, 246, 252.) The same
rights to due process is found in the California Constitution at article I,
section 7.
The United States Constitution might not require that involuntary
commitments be limited to two years. However, when the state law provides
for an involuntarily commitment of two years, it creates a liberty interest that
the person would be released after two years unless the state can again show
the necessity for a new commitment. The failure to release the person at the
end of this period without sufficient showing violates due process. (McNeil,
supra, 407 U.S. at pp. 246, 252.)
Wolff v. McDonnell (1974) 418 U.S. 539 is illustrative. In that case, a
state prisoner earned conduct credits. The state of Nebraska rescinded the
credits without an adequate hearing. The United States Supreme Court held
that although the federal Constitution did not entitle a prisoner to conduct
credits, the conduct credits affected when a prisoner would be released. The
state could not set a release date, based on the conduct credits, and then
extend the release date by rescinding the conduct credits without a sufficient
hearing. (Id. at p. 557.)
Analogously, in Marriage of Buol (1985) 39 Cal.3d 751, a new statute
changed from separate property to community property held jointly by a
husband and wife. The court held the statute could not be applied
retroactively because it would deprive people of a property right without due
process of law. (Id. at p. 757.) “We have long held that the retrospective
application of a statute may be unconstitutional if it is an ex post facto law, if
it deprives a person of a vested right without due process of law, or if it
impairs the obligation of a contract.” (Id. at p. 756.)
17
When appellants were last committed, the law required that “the
person shall not be kept in actual custody longer than two years unless a
subsequent extended commitment is obtained from the court incident to the
filing of a petition for extended commitment . . . . ” (Former § 6604.) By
early 2007, appellants finished their two year commitments. The
commitments no longer existed. At this point, their liberty was not subject to
the pleasure of the state. The government was required to release them
unless it initiated new proceedings to justify their confinement. The
government never proved beyond a reasonable doubt they qualified for
recommitments. It could not retroactively deprive them of their liberty
interests without the benefit of a new hearing in which it was required to
show they still qualified for commitment.
4.
Retroactively modifying the initial commitment to
an indeterminate term violated the right to
notice.
De Sade had a right to appeal his 2005 commitment but did not, as he
understood the commitment was for only two years. The due process clause
of the Fourteenth Amendment requires that a defendant be given notice of
the consequences of a judicial proceeding. (Lambert v. California (1957)
355 U.S. 225, 228 [a person charged with failing to register must be on
notice of the requirement]; Lankford v. Idaho (1991) 500 U.S. 110, 125-126
[a defendant must receive notice that the crime could be punished with death
before receiving a death sentence].)
De Sade did assert that the statute should not apply retrospectively.
The purpose of the rule against retrospective application of statutes “is that
the parties affected have no notice of the new law affecting past conduct.”
(Rio Linda, supra, 131 Cal.App.4th at p. 528.) Because the trial court
necessarily considered the lack of notice as part of the retroactivity claim, the
issue is properly before this court. (See, e.g., People v. Superior Court
(Nasmeh) (2007) 151 Cal.App.4th 85, 94.) Furthermore, this is a pure
question of law based on the undisputed facts, so appellate review is
appropriate. (Hale, supra, 22 Cal.3d at p. 394.)
“Fair notice [is] the bedrock of any constitutionally fair procedure”
(Lankford, supra, 500 U.S. at p. 121.) “In a variety of contexts, our cases
have repeatedly emphasized the importance of giving the parties sufficient
notice to enable them to identify the issues on which a decision may turn.”
18
(Id. at p. 126, fn. 22.)
De Sade was denied due process because he failed to receive notice
that his 2005 would result in an indeterminate term. The lack of notice
prejudiced him. With the understanding that his initial commitment was
only two years long, he waived his right to appeal. Little did he realize that
was his only chance to contest whether the government legally proved he
suffered from a mental illness which rendered him an unacceptable risk to
society. Because the government failed to provide adequate notice, the order
converting De Sade's commitment to an indeterminate term must be
reversed.
D.
Indeterminate SVP Commitments Violate Due Process,
Equal Protection, Ex Post Facto and Double
Jeopardy Provisions of the State and Federal
Constitution.
Again, to the extent the statutory language is ambiguous, it should be
construed to avoid applying it retrospectively because “constitutionally
doubtful interpretations should be avoided.” (Jones, supra, 529 U.S. at p.
851; accord, Hernandez, supra, 30 Cal.4th at p. 868; Doe, supra, 476
F.Supp.2d at p. 1181.) If the amendments to the SVP Act were to be applied
retroactively, appellants' commitments would be unconstitutional because
the SVP Act, as amended, now violates the due process, equal protection, ex
post facto, and double jeopardy clauses of the state and federal constitutions.
The issue of whether the orders run afoul of a constitutional right is purely a
question of law, and it is thus reviewed it de novo. (Fiske, supra, 274 U.S. at
pp. 385-386; DVD Copy Control Assn., supra, 31 Cal.4th at pp. 889-890.)
1.
The SVP Act, as amended, violates the due process
clause because it provides insufficient means
of ensuring release of people who are no
longer dangerous due to their mental
conditions.
Appellants argued below the SVP Act as amended violates due
process under the federal and state constitutions because it provided an
inadequate means for releasing people who no longer qualify for
19
confinement. (Mont. CT 180-182, 184-188; Sade CT 76-80.) The
government argued the remaining procedures were adequate. (Mont. CT
108-122; Sade CT 39-53, 108-116.)
Under the due process clause of the Fourteenth Amendment to the
United States Constitution, as well as article I, section 7 of the California
Constitution, “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 v. Texas (1979) 441 U.S. 418, 426.) Thus, a
commitment scheme must include adequate safeguards to ensure that a
person does not remain in custody if he or she is no longer mentally ill such
that he or she poses an unacceptable danger to society. (See also Jackson v.
Indiana (1942) 406 U.S. 715, 731-737 [the state cannot confine an
incompetent criminal defendant, who will not become competent in the
foreseeable future, without a showing his mental illness caused him to pose
an unacceptable risk to the public].)
Originally, the SVP 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' ” because
“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. ([Former] § 6604.)”
(Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1177.) The California
Supreme Court found the original SVP Act was not punitive and complied
with due process because involuntary “[c]ommitment and treatment are
proper under the [original] Act only so long as the person is both mentally
disordered and dangerous. To this end, the maximum length of each
commitment is relatively brief – two years.” (Id. at pp. 1166-1167.)
“This requirement for what is essentially a new determination of SVP
status every two years arises from the logical and constitutional requirement
that any SVP commitment be based on a currently diagnosed mental disorder
which makes it likely the person will engage in sexually violent criminal
behavior.” (Munoz, supra, 129 Cal.App.4th at p. 430, emphasis in original.)
As this court explained, it was “ 'the intent of the Legislature that
these individuals be committed and treated for their disorders only as long as
the disorders persist and not for any punitive purpose.’ ” (Litmon v.
Superior Court (2004) 123 Cal.App.4th 1156, 1169, emphasis in original,
20
quoting Stats. 1995, ch. 762, § 1.) “The main procedural mechanism through
which the Legislature's intent [was] realized [was] the provision of a trial
every two years to ascertain the committed person's current mental
condition.” (Ibid., emphasis in original.)
As amended, the SVP Act no longer requires the government to prove
periodically that the person poses an unreasonable danger due to a mental
disorder. Instead, it is the committed person's burden to show by the
preponderance of the evidence that his condition has “so changed” that
release would not endanger the safety of others.
The Department of Mental Health is required to examine annually the
person committed under the Act and file a report with the court. (§ 6605,
subd. (a).) One committed under the Act has the right to retain an expert or,
if indigent, have one appointed to examine him or her and review the medical
records. (Ibid.) A person committed under the Act may petition the court for
release if the Department agrees the person no longer meets the criteria for
confinement under the SVP Act. (§ 6605. subd. (b).) The trial court must set
an order to show cause hearing. (Ibid.) The court must determine whether
probable cause exists to believe the person's diagnosed mental disorder has
“so changed” that “he or she is not a danger to the health and safety of others
and not likely to engage[ ] in sexually violent criminal behavior, if
discharged . . . . ” (§ 6605, subds. (b) & (c).) If so, the court must order a
hearing on the merits. (Ibid.) The Department must prove beyond a
reasonable doubt that continued confinement is necessary. (§ 6605, subd.
(d).) The petitioner must be unconditionally released if the Department is
unable to carry its burden. (§ 6605, subd. (e).) Alternatively, the Department
may file the petition for the release under the procedures set forth in section
7250. (§ 6605, subd. (f).)
Amended section 6608 governs petitions by patients for release
without the agreement of the Department. However, before the matter
proceeds, the court must determine if the petition is “frivolous.” (§ 6608,
subd. (a).) If the court determines the petition is not “frivolous,” it shall hold
a hearing on the merits, where the petitioner bears the burden of proving he
or she would not be a danger to others. (§ 6608, subds. (d) & (i).) The
Department is supposed to recommend to the court that the person be
released if it believes he no longer qualifies. (§ 6607, subd. (a).)
The approaches that now permit release of one committed under the
21
SVP Act are constitutionally inadequate. Under section 6605, a person
cannot file the petition unless the Department “authorize[s]” it. (§ 6605,
subd. (b).) Under section 6608, the person can file a petition without the
Department's agreement, but the Act now shifts the burden on the individual
to prove release is appropriate. The person will remain incarcerated until it is
proven the person's condition has “so changed” that the person no longer
meets the definition of a sexually violent predator (§§ 6605, subd. (d), 6608,
subd. (d).) If it is not shown the person's condition has not significantly
changed, he or she cannot even receive a contested hearing on the merits;
instead, the court is required to summarily dismiss the petition. (§§ 6605,
subd. (b), 6608, subd. (a).)
Shifting the burden of proof significantly increases the risk of error.
“The standard serves to allocate the risk of error between the litigants and to
indicate the relative importance attached to the ultimate decision.”
(Addington, supra, 441 U.S. at p. 423.) To confine someone for being
mentally ill, due process requires the state to prove by at least clear and
convincing evidence that the person is mentally ill and dangerous. (Id. at pp.
426-427; Foucha, supra, 504 U.S. at pp. 80-82.) Because California's
scheme no longer requires the government to prove periodically by at least
clear and convincing evidence current dangerousness, the scheme violates
due process.
The government’s reliance on Jones v. United States (1983) 463 U.S.
354 (Mont. CT 118-119; Sade CT 49-50) was misplaced. The Court said that
a defendant found not guilty by reason of insanity (NGI) can be held until the
sentence would have been completed had he or she been found guilty, and
the defendant could be burdened with proving he or she is no longer a danger
to society due to mental illness in order to be released earlier. (Id. at p. 370.)
The reason for this is that by entering an NGI plea, a criminal defendant
voluntarily demonstrates a willingness to be committed for the period in lieu
of imprisonment. (Id. at p. 367.) Further, the verdict reflects “(i) the
defendant committed an act that constitutes a criminal offense, and (ii) he
committed the act because of mental illness.” (Id. at pp. 363-364.) One
committed under the SVP Act, however, did not volunteer for the treatment.
He or she has been found to have committed a sex offense (§ 6600, subd. (a))
but has already served the sentence. There is no requirement under the SVP
Act that the predicate crimes be committed because of mental illness.
22
Once an NGI defendant has completed the maximum potential
sentence for the crimes he or she committed while insane, the commitment
can be extended for only two year terms and only if the government proves to
a jury beyond a reasonable doubt the need for continued confinement. (Pen.
Code, § 1026.5, subd. (b).) Since one committed under the SVP Act must
have completed the sentence for the crime, the SVP commitment is more
analogous to the NGI extension scheme. In that situation, the government
must prove every few years the need to confine the person. Thus, contrary to
the government's argument in the superior court, the NGI scheme shows that
due process is met by requiring the government to prove periodically the
continued need to confine an SVP patient.
The government also claimed that the SVP Act, as amended, is
substantially similar to the procedures recently enacted in other states.
(Mont. CT 117-120, 200-201; Sade CT 48-51, 150-153.) The authority cited
by the government in the superior court did not assist it. For example, recent
amendments to Kansas's SVP scheme made lifelong commitments possible.
(CT 128-129.) According to the Supreme Court when it approved of the
Kansas scheme, the statute complied with due process in part because the
“commitment under the Act is only potentially indefinite. The maximum
amount of time an individual can be incapacitated pursuant to a single
judicial proceeding is one year.” (Hendricks, supra, 521 U.S. at p. 364,
emphasis in original, citing Kan. Stat. Ann. § 59-29a08.) “If Kansas seeks to
continue the detention beyond that year, a court must once again determine
beyond a reasonable doubt that the detainee satisfies the same standards as
required for the initial confinement.” (Ibid.) Even under the recent
amendments, the patient must be advised each year of his right to petition for
release, the court shall hold at least a probable cause hearing unless there is
an affirmative waiver of the right, and when there is a post-commitment trial,
the state bears the burden of proving confinement is necessary beyond a
reasonable doubt, regardless of whether it authorizes the patient’s petition.
(Kan. Stat. Ann. § 59-29a08.) These guarantees are missing from
California's scheme.
The right to meaningful annual judicial review, present in Kansas and
in other commitment schemes in California, is missing from the SVP scheme
as amended. Under California's amended SVP Act, one can remain confined
indefinitely without a hearing and without the government proving the need
23
to do so. It violates due process to confine a person purportedly for mental
health reasons when the government does not demonstrate the person suffers
from a mental illness that renders him or her an unacceptable risk.
2.
The SVP Act, as amended, violates the equal
protection clause because it makes it more
difficult for those committed under the SVP
Act to be released compared to those
committed under other commitment schemes
in the state.
Appellants argued in the trial court that the SVP Act, as amended
violated the equal protection clause because the Act is the only commitment
scheme in California that provides for an indeterminate term and require the
patient to prove he or she is no longer a danger in order to be released without
Department authorization. (Mont. CT 188-189; Sade CT 101-108.)
The Fourteenth Amendment to the United States Constitution
provides that no state shall “deny to any person within its jurisdiction the
equal protection of the laws.” (See also Cal. Const., art. I, § 7.) “In order to
establish a meritorious claim under the equal protection provisions of our
state and federal Constitutions appellants must first show that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner. [Citation.] Equal protection applies to ensure that
persons similarly situated with respect to the legitimate purpose of the law
receive like treatment; equal protection does not require identical treatment.
[Citation.].” (People v. Griffin (2000) 79 Cal.App.4th 921, 924, citing
Hubbart, supra, 19 Cal.4th at p. 1153, fn. 20; People v. Buffington (1999) 74
Cal.App.4th 1149, 1156.)
When laws distinguish people according to suspect classifications or
serve to deprive a class of people of fundamental rights, the court employs a
strict scrutiny test. (Heller v. Doe (1993) 509 U.S. 312, 319.) The United
States Supreme Court has recognized that “civil commitment for any
purpose constitutes a significant deprivation of liberty . . . . ” (Addington,
supra, 441 U.S. at p. 425.) Thus, “[s]trict scrutiny is the appropriate standard
against which to measure claims of disparate treatment in civil
commitment.” (Griffin, supra, 79 Cal.App.4th at p. 924, citing Hubbart,
supra, 19 Cal.4th at p. 1153, fn. 20.) “[W]hether the state has a compelling
reason which justifies the law and whether the distinctions drawn by the law
24
are necessary to further that purpose.” (People v. Nguyen (1997) 54
Cal.App.4th 705, 716, quoting People v. Olivas (1976) 17 Cal. 3d 236, 251.)
Under any test, the equal protection clause requires any disparate
treatment to further the state’s interest. “[E]ven in the ordinary equal
protection case calling for the most deferential of standards, we insist on
knowing the relation between the classification adopted and the object to be
attained. The search for the link between classification and objective gives
substance to the Equal Protection Clause . . . . ” (Romer v. Evans (1996) 517
U.S. 620, 632.)
Under the Mentally Disordered Offender (MDO) Act (Pen. Code,
§ 2960 et seq.), a prisoner nearing the end of the prison sentence can be
confined for mental health reasons if he has a “severe mental disorder” that is
not in remission (or cannot be kept in remission without treatment) which
causes a substantial risk of harm to others. (Pen. Code, § 2962.) Like the
SVP Act, the MDO Act is targeted to confine state prisoners who have
committed violent felonies, not only sex offenses which could also subject
the prisoner to the SVP Act, but also those who have committed other violent
crimes. (Pen. Code, § 2962, subd. (e).) The commitment is for one year
(Pen. Code, § 2972, subd. (c)), but it can be extended if the state proves to a
jury beyond a reasonable doubt the patient still suffers from a severe mental
disorder which is not in remission or cannot be kept in remission, causing
substantial danger of physical harm to others (Pen. Code, § 2970, 2972, subd.
(e)).
The one-year commitment under the MDO Act is consistent with
other commitment schemes in California. A commitment under the
Lanterman-Petris-Short Act is one year. (§ 5350.) The commitment under
the Extended Delinquent Act is two years. (§ 1802.) The commitment for
criminal defendants found to be incompetent to stand trial on a felony can be
no longer than three years. (Pen. Code, §§ 1370, subd. (c)(1), 1370.1, subd.
(c)(1).)
At the very least, those committed under the SVP Act are similarly
situated with MDO patients. Both are prisoners nearing the end of their
terms who are being committed because a mental disorder renders them an
unacceptable danger to society. For example, when Montague was nearing
the end of his prison sentence for his 1991 convictions for lewd conduct, he
qualified for commitment under either Act. the MDO Act and the SVP Act.
25
Similarly, when De Sade was nearing the end of his prison sentence for his
1993 convictions for lewd conduct against a minor, he qualified for
commitment under either Act. Both Acts required a conviction for a
predicate offense which included lewd conduct. (§ 6600, subd. (b); Pen.
Code, § 2962, subd. (e)(2).) Both Acts required the inmate to suffer a mental
disorder (§ 6600, subd. (a); Pen. Code, § 2962, subd. (a)) which could
include pedophilia. (See, e.g., People v. Starr (2003) 106 Cal.App.4th 1202,
1205-1207 [MDO]). Both Acts required the inmate to pose an unacceptable
risk of reoffending due to the mental disorder. (§ 6600, subd. (a); Pen. Code,
§ 2962, subd. (b).) For purposes of this analysis, those committed under the
SVP Act are similarly situated with those committed under the MDO Act.
An MDO patient must be released within a year unless the state
proves to a jury beyond a reasonable doubt the need to continue the
confinement. An SVP commitment, however, is for life. There is no legal
mechanism to guarantee the SVP committee a judicial hearing on the merits,
and if a hearing is granted, the burden is on the SVP committee to prove his
condition has changed so that he is no longer a danger. There is no rational,
much less compelling reason, for the disparate treatment. While an SVP
committee might be deemed as a danger to society because of their crimes
and mental disorder, the same danger is posed by an MDO patient who
committed the same sex offenses or other violent crimes (Pen. Code, § 2962,
subd. (e)) and who suffers from the same mental illness.
The government below did not disagree that people under the SVP
Act are treated differently from those committed under other schemes in
California and that the strict scrutiny test applies. (Mont. CT 123-124; Sade
CT 54-55.) The government argued there were compelling reasons to treat
those under the SVP Act differently because case law has established that
there is a compelling interest to protect society from the dangerously
mentally ill. (Mont. CT 125-127 and Sade CT 56-58, citing, Baxstrom v.
Herold (1966) 383 U.S. 107, 111 and In re Gary W. (1971) 5 Cal.3d 296, 304
and other cases.) The cases merely establish that the government has a
compelling interest in depriving the dangerously mentally ill of their liberty.
The cases do not establish that those under the SVP Act could be treated
differently from others who are dangerously mentally ill.
The government also argued that those under the SVP Act are
different. (Mont. CT 127-131; Sade CT 58-62.) It relied on cases which held
26
that one committed under the SVP Act need not be treated before
commitment, unlike those under the MDO Act, because the MDO Act
targets those whose illness might be kept in remission. (CT 135, citing
People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222 and Buffington, supra,
74 Cal.App.4th at pp. 1162-1163.) The government failed to show how this
is relevant for making SVP commitments indeterminate when MDO
commitments are only a year long. (See Romer, supra, 517 U.S. at p. 632
[there must be a “link” between the classification and the government's
objective].) The courts in Hubbart and Buffington found or assumed that
SVP patients and MDO patients were similarly situated for other equal
protection challenges. (Hubbart, supra, at pp. 1217, 1219; Buffington,
supra, at pp. 1156, 1159.) While the MDO Act targeting those whose
ailments might be placed in remission could justify failure to provide early
treatment to non-MDO patients, the government failed to explain why it
would justify a retroactive indeterminate term only for SVP patients. A
mentally ill robber or child molester under the MDO Act is just as dangerous
as a child molester under the SVP Act, even if the MDO patient's mental
illness might be kept in remission with treatment.2
The United States Supreme explained in Humphrey v. Cady (1972)
405 U.S. 504 that when there existed two different schemes for committing a
sex offender and a person is “deprived of a jury determination, or of other
procedural protections, merely by the arbitrary decision of the State to seek
his commitment under one statute rather than the other,” it violates the equal
protection clause. (Id. at p. 512.) Appellants could not be deprived of a
periodic trial where the state has the burden of proof just because the
government chose to commit them under the SVP Act instead of the MDO
Act.
Another case cited by the government actually assisted appellants' claim.
The government accurately described the conclusion in In re Calhoun
(2004) 121 Cal.App.4th 1315 at page 1347 that the SVP Act, unlike other
commitment schemes, do not empower those committed to decline
involuntary medication without necessity. (Mont. CT 130; Sade CT 59.)
However, the court held the disparate treatment violated the equal protection
clause because there was insufficient reason to treat SVP patients differently.
(Calhoun, supra, at pp. 1351-1354.)
2
27
The Supreme Court has held in other cases that committed former
prisoners are similarly situated with other civil patients when considering the
state's burden of proof for the commitment or continuing the commitment.
In Baxstrom, supra, 383 U.S. 107, the Court decided a prisoner, who was
committed at the expiration of his prison sentence, to be similarly situated as
those committed under other statutory schemes within the state. “There is no
conceivable basis for distinguishing the commitment of a person who is
nearing the end of a penal term from all other civil commitments.” (Id., at
pp. 111-112.) In that case, a prisoner nearing the end of a prison term could
be committed by a judge for mental health treatment. All other mental health
commitment schemes in the state required a finding by a jury upon demand.
(Id. at pp. 110-111.) The Court held it violated the equal protection clause to
withhold jury trials only to those being committed from prison: “It follows
that the State, having made this substantial review proceeding generally
available on this issue, may not, consistent with the Equal Protection Clause
of the Fourteenth Amendment, arbitrarily withhold it from some.” (Id. at p.
111.) The state’s argument that a lesser showing was appropriate for those
with a certain criminal record was found to be “untenable” (Id. at p. 114.)
In Jackson, supra, 406 U.S. 715, an incompetent criminal defendant
was subject to commitment without the state showing mental illness or
inability to care for himself, as was required for all others civilly committed
in the state. (Id. at p. 728.) The Court found him similarly situated with all
others civilly committed in the state. (Id. at p. 724.) The Court concluded,
“we hold that by subjecting Jackson to a more lenient commitment standard
and to a more stringent standard of release than those generally applicable to
all others not charged with offenses, and by thus condemning him in effect to
permanent institutionalization without the showing required for commitment
or the opportunity for release afforded by [other commitment schemes in the
state], Indiana deprived petitioner of equal protection of the laws under the
Fourteenth Amendment.” (Id. at p. 730.)
In People v. Gibson (1988) 204 Cal.App.3d 1245, the court held the
MDO Act, as it existed at the time, violated the state and federal equal
protection clauses because it permitted the continued confinement of a
patient without the state needing to make the same showing of present
dangerousness it needed to make under other commitment schemes in the
state. (Id. at pp. 1436-1443, overruled on other grounds by the same court in
28
People v. Robinson (1998) 63 Cal.App.4th 348, 350-352.)
The SVP Act, as amended, violates the equal protection clause
because it deprives those committed under the Act to the right to a periodic
trial where the state bore the burden of proving present dangerousness, as is
required in other commitment schemes in California.
3.
The SVP Act, as amended, violates the ex post facto
and double jeopardy clauses.
Appellants argued below that the amendments to the SVP Act
rendered it punitive and thus appellants' commitments violated principles
against ex post facto laws. (Mont. CT 190-192; Sade CT 92-93; Sade 2RT
13, 23 [joining in Montague's arguments].) The government disagreed.
(Mont. CT 104-108, 204-205; Sade CT 35-39.)
When the SVP Act was passed, the Legislature expressly stated in an
uncodified portion of the bill that the purpose of the statutory scheme was not
punitive but to provide treatment and to protect society from a small class of
high risk offenders. (Stats. 1995, ch. 763, § 1; Hubbart, supra, 19 Cal.4th at
pp. 1171-1172.) It was contended California's SVP Act, as originally
enacted, violated the ex post facto (Cal. Const., art. I, § 9; U.S. Const., art. I,
§ 10) and double jeopardy clauses (Cal. Const., art. I, § 15; U.S. Const., 5th
and 14th Amends.) because it incarcerated a person for past sex offenses
after the sentence had been served. The claims failed because the SVP Act
was deemed to be non-punitive. (Hubbart, supra, 19 Cal.4th at pp.
1171-1172.) It was civil because the commitment was temporary; after a
year or two, the state was required to release the patient or prove in court
“ 'beyond a reasonable doubt that the detainee satisfies the same standards as
required for the initial confinement.' ” (Id. at p. 1173, quoting Hendricks,
supra, at pp. 363-364 [as Kansas required periodic hearings, it was not
punitive].) Both the United States and California supreme courts warned:
“ '[I]f . . . civil commitments were to become a mechanism for retribution or
general deterrence,' ” then “ 'our precedents would not suffice to validate it.' ”
(Hubbart, supra, 19 Cal.4th at p. 1179 (conc. opn. of Werdegar, J.), quoting
Hendricks, supra, 521 U.S. at p. 373 (conc. opn. of Kennedy, J.).)
The traditional aims of punishment are retribution and deterrence.
(Hendricks, supra, 521 U.S. at p. 361; see Cal. Rules of Court, rule
4.410(a)(1) & (a)(5).) It has long been recognized that “[o]ne of the reasons
society imprisons those convicted of crimes is to keep them from inflicting
29
future harm.” (United States v. Brown (1965) 381 U.S. 437, 458.)
“Incapacitation for the protection of society is not an unusual ground for
incarceration. ‘Isolation of the dangerous has always been considered an
important function of the criminal law.’ ” (Foucha, supra, 504 U.S. 71, 99
(dis. opn. of Kennedy, J.), quoting Powell v. Texas (1968) 329 U.S. 514, 539
(conc. opn. of Black, J.).) Thus, incarceration of sexual psychopaths simply
for the purpose of incapacitation has been found to be a form of criminal
punishment. (Specht, supra, 386 U.S. at p. 610.)
The amendments to the SVP Act were part of a very large initiative
aimed at increasing punishment for sexual offenders. The expressed purpose
of Proposition 83 was to increase the punishment of sex offenders, both in
terms of lengthening confinement and in “control[ling]” (or deterring) them:
It is the intent of the People of the State of
California in enacting this measure to strengthen
the laws that punish and control sex offenders.
It is also the intent of the People of the State of
California that if any provision in this act
conflicts with any other provision of law that
provides for greater penalty or longer period of
imprisonment the latter provision shall apply.
(Prop. 83, § 31, emphasis added.)
In the argument in favor of Proposition 83, the backers of the
initiative stated: “Proposition 83 – JESSICA'S LAW – will protect our
children by keeping child molesters in prison longer; keeping them away
from schools and parks; and monitoring their movements after they are
released.” (Ballot Pamp., General Elec. (Nov. 7, 2006) argument in favor of
Prop. 83, p. 46, emphasis in original.)3 The argument concluded with the
initiative's purpose: “Proposition 83 means safer schools, safer parks, and
safer neighborhoods. Proposition 83 means dangerous child molesters will
be kept away from our children and monitored for life. Proposition 83 means
predatory sex criminals will be punished and serve their full sentence in
every case.” (Ibid., emphasis in original.)
Nowhere in the initiative was there an effort to improve treatment,
Concurrent with the filing of this brief, appellants are filing a motion for this
court to take judicial notice of the argument in favor of Proposition 83
contained in the Ballot Pamphlet, November 7, 2006 General Election.
3
30
effectuate rehabilitation, or increase the chance of releasing sexually violent
predators. The voters did not want to try to rehabilitate and release sex
offenders; it wanted to incarcerate them as long as possible and closely
monitor them if their release was required.
To carry out the intent of increasing punishment, the voters decided
that kidnapping to commit a sex crime in concert or lewd conduct on a minor
required an indeterminate term (Prop. 83, § 3, amending Pen. Code, § 209,
subd. (b)(1)), first degree burglary to commit a sex crime required an
indeterminate term (Prop. 83, § 4, amending Pen. Code, § 220), rape of a
minor by threat of retaliation required an indeterminate term (Prop. 83, § 5,
amending Pen. Code, § 269), and an SVP commitment required an
indeterminate term (Prop. 83, § 27, amending Welf. & Inst. Code, § 6604).
And the voters made it more difficult for the Legislature to amend the
SVP Act to improve efforts to rehabilitate and release sex offenders. If the
Legislature were to conclude that it was appropriate to shorten the term of
confinement or lower the standard for releasing an SVP patient, it would be
powerless to effectuate the change without approval of a two-thirds of both
houses. (Prop. 83, § 33.) If the Legislature wished to make it more difficult
to release a person committed under the SVP Act, it requires only approval of
a majority of each house. (Ibid.) Thus, the voters made it clear that the
purpose of the initiative was simply to lock up sex offenders (whether in
prison or in the Department of Mental Health) for as long as possible.
The punitive intent of legislation is dispositive. (Smith v. Doe (2003)
538 U.S. 84, 92 [“If the intention of the legislature was to impose
punishment, that ends the inquiry.”].) Here, the voters stated that those who
have committed sex crimes should be confined longer. (Prop. 83, § 31.) The
amendments were also punitive in effect. The features that made the original
SVP Act non-punitive in effect were eliminated.
The requirement that the commitment lasts only two years unless the
state could prove in court “ 'beyond a reasonable doubt that the detainee
satisfies the same standards as required for the initial confinement' ”
(Hubbart, supra, 19 Cal.4th at p. 1173, quoting Hendricks, supra, at 521
U.S. pp. 363-364) is now missing. Every other commitment scheme in
California has been for a few years. The unique indeterminate terms for SVP
“patients” is excessive in relation to the alternative purpose assigned.
Other factors in California's SVP scheme makes it punitive in effect.
31
In Hendricks, supra, 521 U.S. 346, the Court doubted the civil commitment
would act as a deterrent because the people committed under the Act are
considered to be mentally disabled. (Id. at pp. 362-363.) In California,
however, a person can be committed who is perfectly lucid but simply has an
inclination to commit sex offenses. (See, e.g., People v. Williams (2003) 31
Cal.4th 757, 761 [commitment for paraphilia].)
The statutory scheme upheld in Hendricks did not require a criminal
conviction as a prerequisite for a commitment. (Hendricks, supra, 521 U.S.
at p. 362 [“An absence of the necessary criminal responsibility suggests that
the State is not seeking retribution for a past misdeed.”].) Writing for the
Court, Justice Thomas found the absence of a predicate criminal offense
critical in determining the Kansas law was civil in nature. By contrast, he
commented the requirement of predicate criminal acts would be indicative
that a statute were punitive. (Hendricks, supra, 521 U.S. at p. 362.) The
SVP Act makes it a prerequisite that the person be convicted of a sex offense
(Welf. & Inst. Code, § 6600, subd. (a)) and that the person be in prison when
the petition is filed (Welf. & Inst. Code, § 6601, subd. (a)).
The Kansas law, like virtually all other civil commitments, did not
examine the malice or moral turpitude of the person who may be committed.
Scienter is a criminal element. (Hendricks, supra, 521 U.S. at p. 362.) The
SVP Act, on the other hand, focuses on the guilty and predatory intent of the
person to form a relationship for the purpose of victimization. (Welf. & Inst.
Code, § 6600, subds. (a), (b) & (e).)
The Kansas law provided the patient may petition the court for release
at any time. The court was under no obligation to obtain approval or a
recommendation from the department of mental health. If the court denied
the petition, the patient was not precluded from filing a new petition any time
in the future. Discharging those who are no longer a danger was a paramount
feature of a civil commitment; keeping them confined even when it was not
medically appropriate is, by definition, punitive. (Hendricks, supra, 521 U.S.
at p. 364.) Under the SVP Act, the court must obtain the consent or
recommendation from the director of Department of Mental Health before it
can consider the patient’s petition. (Welf. & Inst. Code, §§ 6605, subd. (b),
6608, subd. (j).) If the petition is denied, the patient is prohibited from filing
a new petition for one year. (Welf. & Inst. Code, § 6608, subd. (h); see also §
6605, subd. (a) [permitting an evaluation for § 6605 only once a year].)
32
All of these factors demonstrate that, unlike the Kansas law, the SVP
Act, as amended, is punitive, not civil, in nature.
Under article I, section 10 of the United States Constitution, a state
cannot enact ex post facto laws. Ex post facto includes “ ‘[e]very law that
aggravates a crime, or makes it greater than it was, when committed [and]
[e]very law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.’ ” (Carmell v. Texas
(2000) 529 U.S. 513, 522, quoting Calder v. Bull (1798) 3 U.S. (3 Dall.) 386,
390, emphasis in original.) “A law enacted after commission of the offense
and which punishes the offense by extending the term of confinement is a
textbook example of an ex post facto law.” (Hendricks, supra, 521 U.S. at
371 (conc. opn. of Kennedy, J.). The SVP Act is now punitive in intent and
in effect, and it serves to lengthen the confinement of sex offenders who were
scheduled to be released. It applies to people who committed sex offenses
before the enactment of the SVP Act. Thus, the statute is retrospective.
Appellants were already convicted and punished for their offenses. The
indeterminate SVP commitments violated the prohibition against ex post
facto laws.
The SVP Act also violates the double jeopardy clause. “The Double
Jeopardy Clause . . . provides that no person shall ‘be subject for the same
offence to be twice put in jeopardy of life or limb.’ U.S. Const., Amdt. 5.
This protection applies both to successive punishments and to successive
prosecutions for the same criminal offense.” (United States v. Dixon (1993)
509 U.S. 688, 695-696.) “[T]his Court has concluded that where the two
offenses for which the defendant is punished or tried cannot survive the
‘same-elements’ test, the double jeopardy bar applies.” (Id. at p. 696.) “The
same-elements test . . . inquires whether each offense contains an element
not contained in the other; if not, they are the ‘same offence’ and double
jeopardy bars additional punishment and successive prosecution.” (Ibid.;
Blockburger v. United States (1932) 284 U.S. 299, 304.) The same offense
test is met when one charge is a lesser included of another. (Brown v. Ohio
(1977) 432 U.S. 161.)
The crimes for which appellants were convicted are included within
the elements of the SVP law because one of the three elements of finding
them to be sexually violent predators were whether they committed the
predicate offenses. (§ 6600, subd. (a).) Further, but for the conviction of the
33
sex crimes, appellants could not be held in custody under the SVP Act, even
though their prison sentences have expired. Thus, the SVP Act serves to
punish them a second time for the same conduct. The SVP Act violates
prohibitions against double jeopardy.
E.
Because the State has Chosen not to Proceed with the
Commitment Extension Petition in a Timely
Manner, Dismissal of the Petition and Release of
Appellants is Required.
After the government successfully sought to modify appellants' initial
commitments retroactively to be indeterminate terms, Montague moved to
dismiss the current commitment extension petition. (Mont. 5RT 188.)
Instead, the court granted the government's request to stay the petition
pending appeal. (Mont. 5RT 187-188.) While De Sade did not interpose a
specific objection, he had previously joined in Montague's arguments. (Sade
2RT 13, 23.) Further, since the court indicated even before Montague asked
to dismiss the petition that it would stay it, any further objection by De Sade
would have been futile. (See, e.g., People v. Scott (1978) 21 Cal.3d 284,
291; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) “Because the
. . . court here had the opportunity to address the issue . . . there is no
waiver.” (In re S.M. (2004) 118 Cal.App.4th 1108, 1121, fn. 9; see also
People v. Bob (1946) 29 Cal.2d 321, 324-327.)
Although there are no statutory time limits for proceeding with an
SVP petition, an individual is entitled to a timely determination of the case.
(Litmon, supra, 123 Cal.App.4th at pp. 1171-1172.) The right to a timely
adjudication of the dispute is a component of due process. (U.S. Const., 14th
Amend.; Cal. Const., art. I, § 7.) As this court stated, “ ‘[s]urely the
Legislature did not contemplate the lengthy delay which occurred here. The
trial court should . . . ensure the matter proceeds to trial within a reasonable
time following the probable cause hearing.’ ” (Litmon, supra, at p. 1171,
quoting Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179.) The
government is required to show “some compelling reason” to justify an
extended delay in the SVP proceeding.
Appellants' commitments have expired. The government has not
attempted to prove to a unanimous jury that appellants' continued
confinement is appropriate. It had the opportunity to try them. The
government instead asked the trial court to retroactively transform their
34
initial commitments to be indeterminate terms. Its failure to prosecute the
cases constitutes an abandonment and requires dismissal of the petitions.
In McNeil, supra, 407 U.S. 245, a criminal defendant was convicted
of a felony and sentenced to serve a five year term. Instead of sending him to
prison, the court ordered that he be referred to the Patuxent Institution for
examination to determine if he should be involuntarily committed in a
program that provided mental health treatment for prisoners. He refused to
be examined, and the Institution held him beyond the five year term to do the
examination. (Id., at p. 246.) The Supreme Court held that when the original
commitment ended with no new proceedings, the state had no authority to
hold him:
Petitioner is presently confined in Patuxent
without any lawful authority to support that
confinement. His sentence having expired, he is
no longer within the class of persons eligible for
commitment to the Institution as a defective
delinquent. Accordingly, he is entitled to be
released.
(Id., at p. 252.) Here, the previous commitments have expired and the
government has failed to prosecute the commitment extension petition. The
due process clause of the Fourteenth Amendment of the federal Constitution
and article I, section 7 of the state constitution requires appellants' release.
II.
TRIAL COUNSEL WAS INEFFECTIVE
FOR
FAILING
TO
PRESENT
APPROPRIATE CLAIMS.
A person is entitled to the appointment of counsel in an SVP
proceeding. (§ 6602.) “A [person] who has a right to appointed counsel is
entitled to competent counsel; otherwise, “ ‘it will be a hallow right.’
[Citations.]” (In re Kristin H. (2000) 46 Cal.App.4th 1635, 1659.) Thus,
courts have recognized that a person has a right to effective assistance of
counsel in SVP proceedings under the statute (People v. Leonard (2000) 78
Cal.App.4th 776, 784) and the Sixth Amendment or under the due process
clause of the Fourteenth Amendment (ibid.; Vitek v. Jones (1980) 445 U.S.
480, 494-497; Woodward v. Mayberg (N.D. Cal. 2003) 242 F.Supp.2d 695,
707).
35
In order to show ineffective assistance of counsel, it must be shown
that (1) counsel’s representation was deficient in that it fell short of
prevailing professional standards of reasonableness; and (2) there is a
reasonable possibility that but for counsel’s errors, the result of the case
would have been different. (Strickland v. Washington (1984) 466 U.S. 668,
687.) The analysis of whether a person was deprived the right to effective
assistance of counsel in a civil commitment proceeding is the same.
(Leonard, supra, 78 Cal.App.4th at p. 784; Woodward, supra, 242 F.Supp.2d
at p. 707; cf. Kristin H., supra, 46 Cal.App.4th at p. 1668 [civil dependency
case].)
It is well-settled, however, that “counsel owes the client . . . the
overarching duty to advocate the defendant's cause.” (Strickland v.
Washington (1984) 466 U.S. 668, 688.) “Counsel also has a duty to bring to
bear such skill and knowledge as will render the trial a reliable adversarial
testing process.” (Ibid.) Trial counsel is “expected to ... possess knowledge
of those plain and elementary principles of law which are commonly known
by well informed attorneys, and to discover those additional rules of law
which, although not commonly known, may readily be found by standard
search techniques.” (Smith v. Lewis (1975) 13 Cal.3d 349, 358.)
To the extent trial counsel's failed to articulate the above grounds for
opposing retroactively changing appellants' old commitments to
indeterminate terms, their performance was deficient. In particular, trial
counsel failed to expressly argue that retroactively modifying a previous
judgment of a two-year commitment to be an indeterminate term violated the
prohibition against bills of attainder, or that the SVP Act, as amended,
violates double jeopardy. De Sade's counsel failed to expressly state that he
lacked fair notice; counsel failed to move to dismiss his extension petition or
object to it being stayed pending appeal.
Both trial counsel strongly opposed the government’s efforts to
retroactively change the terms of confinement. There can be no tactical
reason for not presenting the proper grounds. Because the claims would
have prevented the retroactive conversion of the old judgments to
indeterminate terms, appellants were prejudiced by the deficient
performance.
CONCLUSION
For the foregoing reasons appellants, Romeo Montague
and Donatien De Sade, respectfully request that this Court reverse the order
36
retroactively making their commitments indeterminate terms and to order
their immediate release.
DATED: October 2, 2007.
Respectfully submitted,
SIXTH DISTRICT APPELLATE PROGRAM
By:
_________________________
Jonathan Grossman
Attorney for Appellants
Romeo Montague
Donatien De Sade
37
CERTIFICATION OF WORD COUNT
I, Jonathan Grossman, certify that the attached APPELLANTS'
OPENING BRIEF contains 14,036 words.
Executed under penalty of perjury at Santa Clara, California, on
October 2, 2007.
Jonathan Grossman
38