IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE OF THE STATE OF CALIFORNIA,
)
)
Petitioner - Respondent,
)
)Court of Appeal
v.
) No. H123456
)
DON JUAN TENORIO,
)Santa Clara
) No. 123456
Respondent - Appellant.
)
____________________________________________)
APPEAL FROM THE SUPERIOR COURT OF
SANTA CLARA COUNTY
Honorable Tirso de Molina
____________________________
APPELLANT'S OPENING BRIEF
____________________________
STATEMENT OF APPEALABILITY
This is an appeal from a final judgment following a trial which
disposes of all the issues between the parties and is authorized under Penal
Code section 1237 and Code of Civil Procedure section 904.1.
STATEMENT OF THE CASE
2
STATEMENT OF FACTS
3
ARGUMENT
I.
A.
OVERVIEW OF THE SEXUALLY VIOLENT PREDATOR ACT
Former Act
The Sexually Violent Predator Act (“SVPA”) took effect on January
1, 1996. (Stats. 1995, ch. 763, §3.) Before the enactment of SB 1128 and
Proposition 83, Welfare and Institutions Code section 6604 limited the civil
commitment of a sexually violent predator (“SVP”) to the term of two years.
At the end of the two year commitment, the government was required to file
a petition to extend the commitment. Upon filing of such petition, the
defendant was entitled to a jury trial at which the government had the burden
of proving beyond a reasonable doubt that the defendant was a sexually
violent predator. (Welf. and Inst. Code §6603, subd. (a), (e), and (f).)1
Prior to its recent amendment, the California Supreme Court upheld
the constitutionality of the SVPA against claims that it violated due process
of law, the Equal Protection Clause, and the Ex Post Facto Clause. (Hubbart
v. Superior Court (1999) 19 Cal.4th 1138, 1167-1179.) Likewise, the United
States Supreme Court upheld the constitutionality of a substantially similar
sexually violent predator statute enacted in Kansas. (Kansas v. Hendricks
(1997) 521 U.S. 346, 360-369.)
All further statutory references are to the Welfare and Institutions Code
unless otherwise specified.
1
14
B.
Senate Bill 1128 and Proposition 83 Amendments
On September 20, 2006, Governor Schwarzenegger signed into law
Senate Bill 1128 (“SB 1128) (Stats. 2006, ch. 337, §§ 53-63.) as “urgency
legislation” which became effective immediately upon its signing. Among
other things, the legislation amended section 6604 to change the civil
commitment for an SVP from a two-year term, to an indefinite commitment.
(Stats. 2006, ch. 337, §55.) Later superseded by Proposition 83, the changes
made by SB 1128 were effective from September 20, 2006 to November 8,
2006 (i.e., the time of appellant’s trial).
Proposition 83, effective November 8, 2006, mirrored many of the
changes already enacted by SB 1128.2 Like SB 1128, Proposition 83 called
for indefinite commitments for SVPs. Under either act, the procedures for
reviewing the indefinite commitment of an SVP are as follows.
The Department of Mental Health is required to examine the mental
condition of a sexually violent predator at least once every year and file a
report with the court. (§6605, subd. (a).) The sexually violent predator may
petition the court for conditional release or discharge if the Department
determines the person no longer meets the definition of a sexually violent
predator or can be conditionally released. (§6605, subd. (b).) Upon receipt
of the petition, the trial court must set an order to show cause hearing at
which the court must determine whether probable cause exists to believe the
petitioner’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 engaging in
sexually violent criminal behavior, if discharged. . . .” (§6605, subd. (b) and
2
Except as otherwise noted, with respect to the issues raised herein, the effect of the SB 1128
modifications and the Proposition 83 is identical. References herein to the “revised” act refer to the
act as commonly modified by SB 1128 and Proposition 83.
15
(c).) If the trial court makes that finding, then it must order a hearing on the
petition. (§6605, subd. (c).)
At the hearing, the petitioner is entitled to a jury trial and the
assistance of counsel and experts. (§6605, subd. (d).) The government has
the burden of proving beyond a reasonable doubt that the petitioner is a
sexually violent predator. (§6605, subd. (d).) If the court or the jury rules
against the petitioner, he or she is committed to the Department of Mental
Health for an indeterminate period. (§6605, subd. (e).) The petitioner must
be unconditionally discharged if the judge or jury rules in favor of the
petitioner. The Department of Mental Health must file a petition for judicial
review of a sexually violent predator’s commitment if it has reason to believe
the person no longer meets the definition of a sexually violent predator.
(§6605, subd. (f).)
Section 6608 governs petitions filed for release without the
concurrence of the Director of Mental Health. Under subdivision (a), a
committed individual may file a petition for conditional release or
unconditional discharge with the superior court, and without the concurrence
of the Director of Mental Health. Upon receipt, the court reviews the petition
to determine if it based upon frivolous grounds; if so, the court shall deny the
petition without a hearing. (§6608, subd. (a).) The person petitioning for
conditional release and under §6608, subd. (a) is entitled to assistance of
counsel. (Ibid.) At such hearings, the committed person has the burden of
proof by a preponderance of the evidence. (§6608, subd. (i).)
If the trial court determines after a hearing that the petitioner would
not be a danger to the health and safety of others, it shall order the petitioner
committed to a conditional release program for one year. (§6608, subd. (d).)
16
Following the one-year conditional release, the trial court must hold another
hearing to determine if the person should be unconditionally discharged.
(Ibid.)
If the court denies the petition for placement in a conditional release
program or if the petition for unconditional discharge is denied, the person
may not file a new application until one year has elapsed from the date of
denial.” (§6608, subd. (h).)
17
II.
THE TRIAL COURT LACKED JURISDICTION TO EXTEND
APPELLANT’S COMMITMENT.
A.
Relevant Facts And Procedure
On March 17, 2004, appellant was committed to the Department of
Mental Health for a two-year term as an SVP. (CT 62.) His two-year term
ended on March 17, 2006. On January 10, 2006, the government filed a
petition seeking to extend his commitment by another two years. (CT
61-62.) Between March 17, 2006, and October 25, 2006, appellant remained
in the custody of the Department of Mental Health pending trial on the
January 10, 2006 petition. In October 2006, the time of appellant’s trial, the
provisions of SB 1128 were in effect and Proposition 83 had not yet been
approved by the voters.
B.
The Modifications Made By Senate Bill 1128 Deprived The Trial
Court of Jurisdiction to Extend Appellant’s Commitment.
Proceedings under the SVPA are statutory in nature.
People v.
Rowell (2006) 133 Cal.App.4th 447, 452. The rights of the parties in such
proceedings are of “statutory origin and character.” (Ibid.)
From its inception in 1996 until the 2006 amendments, the SVPA
provided for two-year commitments which could be extended every two
years upon the filing of a petition by the government.
The statutory
authorization for extended commitments was contained in section 6604 and
referenced by section 6604.1. Modifications enacted by SB 1128, however,
deleted the statutory provisions relating to extended commitments. In the
absence of these provisions, the trial court was with out jurisdiction to extend
appellant’s commitment.
18
As relevant to the issues raised herein, the changes made by SB 1128
to the SVPA are shown in below (additions to the text of the statutes are
underlined, deletions are in “strike-out”):
Welfare and Institutions Code section 6604:
If the court or jury determines that the person is a sexually
violent predator, the person shall be committed for two years
an indeterminate term to the custody of the State Department
of Mental Health for appropriate treatment and confinement in
a secure facility designated by the Director of Mental Health,
and 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 under this article or unless the
term of commitment changes pursuant to subdivision (e) of
Section 6605. Time spent on conditional release shall not
count toward the two-year term of commitment, unless the
person is placed in a locked facility by the conditional release
program, in which case the time in a locked facility shall count
toward the two year term of commitment . . . .
(Stats. 2006, ch. 337, § 55.)
Welfare and Institutions Code section 6604.1, subdivision (a):
The two year term 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. 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.
(Stats. 2006, ch. 337, § 56.)
Welfare and Institutions Code section 6604.1, subdivision (b):
The person shall be evaluated by two practicing psychologists
19
or psychiatrists .... The provisions of subdivisions (c) to (i),
inclusive, of Section 6601 shall apply to evaluations performed
for purposes of extended commitments pursuant to a trial
conducted pursuant to subdivision (f) of Section 6605. The
rights, requirements, and procedures set forth in Section 6603
shall apply to extended all commitment proceedings.
(Stats. 2006, ch. 337, § 56.)
Welfare and Institutions Code section 6605, subdivision (e):
If the court or jury rules against the committed person at the
hearing conducted pursuant to subdivision (d), the term of
commitment of the person shall run for a period of two years
an indeterminate period from the date of this ruling . . . .
(Stats. 2006, ch. 337, § 57.)
Thus, effective September 20, 2006, all provisions referring to
proceedings to extend a SVP commitment were deleted from the SVPA.3
It is well settled, that where “the government's authority rests solely
upon a statutory basis, "a repeal of such a statute without a saving clause will
terminate all pending actions based thereon.” (Governing Board of Rialto
Unified School Dist. v. Mann (1977) 18 Cal. 3d 819, 822, quoting Southern
Service Co., Ltd. v. Los Angeles (1940) 15 Cal.2d 1, 11-12;
Callet v. Alioto (1930) 210 Cal. 65, 67-68 ["[A] cause of action or remedy
dependent on a statute falls with a repeal of the statute, even after the action
Like SB 1128, Proposition 83 deleted references to “extended
commitments” from sections 6604, 6604.1, subdivision (a), and 6605. But,
as amended by Proposition 83, section 6604.1 now reads as follows:
3
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 all commitment proceedings.
20
thereon is pending, in the absence of a saving clause in the repealing
statute.”].)
SB 1128 deleted all statutory references pertaining to the extension of
SVP commitments beyond the two years and contained no “saving clause”
with respect to pending actions. The language of SB 1128, is clear and
unambiguous. Thus, the plain language of the statute must control, leaving
nothing to "interpret" or "construe." (Halbert's Lumber, Inc. v. Lucky Stores,
Inc. (1992) 6 Cal.App. 4th 1233, 1238-1239.)
As stated by the California Supreme Court, "we are aware of no
authority that supports the notion of legislation by accident." In re Christian
S. (1994) 7 Ca1.4th 768,776.) If the authors of SB 1128 had wanted to
include provisions relating to persons who were currently serving two-year
commitments and persons whose two-year commitments were completed
but who were being held on pending extension petitions, it would have been
a simple matter for them to do so. Quite simply, they chose not to. A court is
not permitted to read statutes to omit expressed language or include omitted
language. It must be presumed that the Legislature intended everything in
the statute.
The trial court’s jurisdiction to extend appellant’s commitment was
derived solely from section sections 6604 and 6604.1. In SB 1128, the
Legislature deleted all provisions relating to the extension of SVP
commitments after the two-year term had expired.
In doing so,
the
Legislature deprived the court of jurisdiction to conduct hearings on petitions
to extend commitments and to order that appellant’s commitment be
extended. Consequently, the court’s order is void for lack of jurisdiction and
appellant must be released immediately and unconditionally.
21
22
III. THE TRIAL COURT ERRED IN APPLYING THE
REVISIONS TO THE SVPA RETROACTIVELY TO APPELLANT’S
CASE.
Even if the trial court had jurisdiction to extend appellant’s
commitment, the revisions to the SVPA allowing for an indefinite term
cannot be applied retroactively. Because the revisions to the statute were not
in effect at the time the petition was filed, the trial court’s application of the
revised SVPA to appellant’s case constituted an unlawful retroactive
application of a statute.
“[I]t is well settled that a statute is presumed to operate prospectively
and silence as to retroactivity is a definitive indication the Legislature
intended a prospective application. (Tapia v. Superior Court (People) 53
Cal.3d 282, 287; see also Evangelatos v. Superior Court (1988) 44 Cal.3d
1188, 1208-1209.) The issue of whether a change in the law should be
applied retroactively is solely a question of statutory interpretation. This
question is separate and distinct from whether the changes violate the Ex
Post Facto Clauses of the Federal and State Constitutions. (See, Tapia,
supra, 53 Cal.3d at p. 292.)
In the Tapia case, the Court considered the retroactive application of
Proposition 115 which had been passed after the date of the alleged offense,
but before the trial in the Tapia case began. The text of both Proposition 115
and its related ballot material were silent with respect to the issue of
retrospectivity. (Tapia, supra, 53 Cal.3d 287.)
The Court in Tapia held that applying new law to crimes committed
before the law’s effective date constituted an improper retroactive
application of the statute “if it defines past conduct as a crime, increases the
punishment for such conduct, or eliminates a defense to a criminal charge
23
based on such conduct.” (Tapia, supra, 53 Cal.3d at p. 288.) In such cases,
the law "change[s] the legal consequences of an act completed before [the
law's] effective date," namely the defendant's criminal behavior.” (Ibid.)
While the Tapia case dealt with the issue in the context of punishment
for a criminal offense, a similar rule has been applied with respect to civil
liabilities. Thus, in Aetna Casualty & Surety Co. v. Ind. Acc. Com. (1947) 30
Cal.3d 388, 394, a statute increasing the amount an employer’s liability to an
accident victim could not be applied to an accident occurring before the
statute’s effective date because it changed the employer’s liability for the
accident.
Likewise, Proposition 51 which limited an individual joint
tortfeasor's liability for noneconomic damages, could not be applied to
preexisting causes of action because it altered the legal consequences of past
conduct by changing the amount of damages that could be recovered from
various defendants. (Evangelatos, supra, 44 Cal.3d at pp. 1208-1209.)
Where a statute is silent with respect to retroactivity, a statute may not be
applied retroactively if it imposes new or different liability for past conduct - it matters not whether the “liability” is criminal or civil in nature.
On the other hand, where the change in law affects only “the conduct
of trials which have yet to take place” the statute is not retroactive, even if it
is applied to the prosecution of a crime committed before the law's effective
date.
(Tapia, supra, 53 Cal.3d at p. 288.)
In such cases, the law is
prospective in nature because it addresses future conduct: the conduct of the
trial. (Ibid.) A statute "is not made retroactive merely because it draws upon
facts existing prior to its enactment.” (Ibid., quoting Strauch v. Superior
Court (1980) 107 Cal.App.3d 45, 49; see also, Estate of Patterson (1909)
155 Cal.626 [amendment of statute governing proof of contents of will at
trial is prospective in nature]; Strauch, supra, 107 Cal.App.3d at p. 49
24
[statute requiring the filing of certificate of merit in professional malpractice
action is prospective].) Thus, “a law governing the conduct of trials is being
applied ‘prospectively’ when it is applied to a trial occurring after the law's
effective date, regardless of when the underlying crime was committed or the
underlying cause of action arose.” (Tapia, supra, 53 Cal.3d at p. 289.)
In the instant case, nothing in the ballot material establishing
Proposition 83 or the text of SB 1128 stated imposition of an indefinite term
was to be applied retroactively. Absent such express intent, statute is
presumed to operate prospectively. (Tapia, supra, 53 Cal.3d at p. 287.) The
requirements in Proposition 83 and SB 1128 that defendants serve
indeterminate terms altered the legal consequences and liabilities for
appellant’s acts and mental condition and thus, cannot be applied
retrospectively.
Prior to the revisions to section 6604, appellant could only be
committed to one two-year term at a time. At the end of each term, the
burden was on the prosecution to prove beyond a reasonable doubt that
appellant still qualified for commitment. Thus, the revision “change[s] the
legal consequences of an act completed before [the law's] effective date”
(Tapia, supra, 53 Cal.3d at p. 288.) Appellant’s commitment to the State
Department of Mental Health was analogous to a law increasing the
punishment for a crime and is far more burdensome than merely changing
limits of a monetary recovery in a civil action.
Moreover, the requirement for defendants to serve an indeterminate
term is not a rule governing the conduct of trials. Such requirement neither
alters the admissibility of evidence, nor what facts must be proved to sustain
a petition.
Indeed, the requirement for the defendant to serve an
indeterminate term has no impact whatsoever on how an SVP trial is
25
conducted.
Therefore, the requirement that SVP defendants serve indeterminate
terms cannot be applied to cases in which the petition was filed prior to the
effective date of SB 1128. Whether the operative date is the date of the
original petition in 2004 or the present petition for his continued
commitment, appellant’s commitment must be governed by the laws in
effect prior to the modifications requiring an indeterminate term. Hence,
appellant’s indeterminate commitment to the Department of Mental Health
must be modified to a two-year commitment.
26
IV.
APPELLANT’S INDETERMINATE COMMITMENT
UNDER THE REVISED STATUTE VIOLATES THE
DUE PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT BECAUSE THE REVISED STATUTE
IMPROPERLY PLACES THE BURDEN OF PROOF ON
THE APPELLANT TO PROVE HE SHOULD BE
RELEASED. " \l 2
As described above, the revised SVPA provides for an indeterminate
commitment. As a consequence, the government can now avoid having to
prove the detainee remains a SVP simply by not filing a petition
recommending his release. Without such a recommendation, the burden is
on the detainee to file a petition and prove that he should no longer be
detained by a preponderance of the evidence.
In the present case, appellant was committed to the Department of
Mental Health for an indeterminate term pursuant to the revised SVPA. The
judgment must be reversed because the revised act violates appellant’s right
to federal due process of law under the Fourteenth Amendment.
“Freedom from physical restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary government
action.” (Foucha v. Louisiana (1992) 504 U.S. 71, 80.) Such freedom,
however is not absolute. (Hendricks, supra, 521 U.S. at p. 356.) “States have
in certain narrow circumstances provided for the forcible civil detainment of
people who are unable to control their behavior and who thereby pose a
danger to the public health and safety.” (Id. at p. 357.)
In the Hendricks case, United States Supreme Court held that a
Kansas statute, similar to California’s SVPA prior to its revision, contained
sufficient constitutional safeguards as to comply with federal due process
requirements. (Hendricks, supra, 521 U.S. at p. 346.) In this regard, the
Court noted that the Kansas SVP statute required the state to prove beyond a
27
reasonable doubt the defendant was a sexually violent predator and to allow
the defendant right to retain a mental health expert at state expense. (Id. at p.
353.)
Moreover, under the Kansas statute, the court was required to hold
annual hearings to determine whether to continue the commitment.
((Hendricks, supra, 521 U.S. at p. 353.) Thus, “[under the Kansas law the]
maximum amount of time an individual can be incapacitated pursuant to a
single judicial proceeding is one year.” (Id. at p. 364.) In order to continue
the detention beyond the one year, “a court must again determine beyond a
reasonable doubt that the detainee satisfies the same standards as required for
the initial confinement.” (Ibid.)
It is these very safeguards (i.e., the limited duration of the
commitment, periodic judicial review, requirement that government prove
need for continued commitment beyond a reasonable doubt, and right to
experts at state expense) which were abrogated by the Proposition 83
modifications to the California statute. Thus, the rationale of the Hendricks
opinion demonstrates an indeterminate commitment violates due process of
law. (See also, Hubbart, supra, 19 Cal. 4th at pp. 1165-1167 (upholding
California’s former SVPA, noting commitment period was “relatively brief –
two years”).)
The revisions California’s SVPA provide two mechanisms for
judicial review of the defendant’s confinement, neither of which is
constitutionally adequate. First, under section 6605, subdivision (b), the
Department of Mental Health can file a petition for the detainee’s discharge
or conditional release if it determines the person no longer meets the
definition of a SVP or can be released to a conditional release program. The
filing of such a petition is at the absolute discretion of the Department of
28
Mental Health. Once a petition is filed, the burden is on the state to prove
beyond a reasonable doubt that the defendant meets the definition of a
sexually violent predator.
The government, however, only has the burden of proof beyond a
reasonable doubt when the Department of Mental Health has filed the
petition for release. With the exception of the initial petition, the government
can prevent any hearing in which it has the burden of proving beyond a
reasonable doubt that the defendant has a current “mental illness,” or “mental
abnormality,”which makes him a danger to the community from ever being
held by simply not filing a petition.
Second, a petition for discharge may be filed by the detainee pursuant
to section 6608. Although, under Section 6608, subdivision (a), the detainee
is entitled to the assistance of counsel, the subdivision does not grant the
detainee the right to an expert. Moreover, the trial court can summarily deny
the petition if it believes it is frivolous. The detainee has the burden of
proving by a preponderance of the evidence that he should be conditionally
released or is not a sexually violent predator. (§6608, subd. (i).) Under
section 6608, the detainee is entitled to counsel, but the section makes no
provision for the appointment of a mental health expert.
“[C]ivil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.” (Addington v.
Texas (1979) 441 U.S. 418, 425.) Nevertheless, the state has a legitimate
interest in providing care for individuals who cannot care for themselves and
pose a danger to the public. (Id. at p. 426.) In assessing the proper burden of
proof applicable to civil commitment proceedings, the individual’s interest
in not being involuntarily confined indefinitely must be balanced against the
state’s interest in committing the emotionally disturbed. (Id. at p. 425.) In
29
doing so, the United States Supreme Court concluded that “the individual's
interest in the outcome of a civil commitment proceeding is of such weight
and gravity that due process requires the state to justify confinement by proof
more substantial than a mere preponderance of the evidence.” (Id. at p. 427.)
The Due Process Clause, therefore required the government to prove, by at
least a intermediate (i.e., “clear and convincing”) standard of proof, that a
defendant was subject to involuntary civil commitment. (Id. at pp. 431-432.)
While the Addington case, dealt with the burden of proof at an initial
commitment proceeding, Foucha v. Louisiana, supra, 504 U.S. at p. 81-82,
dealt with the requisite burden of proof in the context of a hearing to
determine whether the continued commitment of an individual was
permitted on the basis that he was mentally ill and dangerous. At issue in the
Foucha case was a Louisiana state statute which allowed the continued
detention of insanity acquittees who were no longer mentally ill, unless the
detainee could prove he was no longer dangerous. (Id. at 73.) The Court in
the Foucha case found the Louisiana statute did not satisfy the requirements
of due process because, “[u]nder the state statute, Foucha is not now entitled
to an adversary hearing at which the State must prove by clear and
convincing evidence that he is demonstrably dangerous to the community.
Indeed, the State need prove nothing to justify continued detention, for the
statute places the burden on the detainee to prove that he is not dangerous.”
(Id. at p. 82.) The Court found such procedures inadequate “to defeat
Foucha's liberty interest under the Constitution in being freed from indefinite
confinement in a mental facility.” (Ibid.)
California’s revised SVPA suffers from the same affliction. As in the
Foucha case, under California’s revised law, the government need not do or
prove anything to justify a continued detention. As in the Foucha case, such
30
procedures are inadequate to protect an SVP’s interest in being free from an
arbitary indefinite confinement.
While the burden is placed on the government when it files a petition
pursuant to section 6605, this does not somehow salvage the constitutionality
of the revised act with respect to the burden of proof. First, the government
has no obligation to ever file such a petition. Second, media coverage and
public fears concerning any potential release of an SVP detainee act as a
strong deterrent against recommendations for release by the Department of
Mental Health. Department of Mental Health officials are obviously aware
that the blame game will lead directly to them if a released SVP detainee
reoffends. Under these circumstances, the requirements of the Due Process
Clause are not satisfied by a statutory mechanism which places the burden on
the state to prove the need for continued commitment only when the
proceedings are initiated at the absolute discretion of the Department of
Mental Health.
Further, the allocation of the burden of proof to the state in
proceedings under section 6605 has little practical meaning. The State
Department of Mental Health will file a petition pursuant to section 6605
when it has concluded the defendant should be released. In such cases, there
is little likelihood the hearing held pursuant to section 6605 will be
adversarial. The parties will most likely agree the SVP detainee should be
released in a conditional release program making the allocation of the burden
of proof of little, if any, consequence.
Indeed, the only apparent purpose of the release mechanism created in
section 6605 is to impede the detainee’s release in cases where the
Department of Mental Health has concluded release is appropriate. The
Department of Mental Health will only grant a detainee permission to file a
31
petition under section 6605 if its experts have concluded that defendant
should be released. The detainee is obviously not going to contest his or her
own release. If a trial occurs for a petition filed under section 6605, its only
apparent purpose would be to give the prosecution the opportunity to keep a
socially undesirable person in custody despite the lack of any legitimate
medical basis for continued confinement.
Likewise, section 6608 is a constitutionally inadequate mechanism
for judicial review of a detainee’s confinement because: (1) the court can
summarily dismiss the petition; (2) the detainee is not entitled to the
assistance of medical experts; (3) and has the burden of proof in any hearing
ordered by the trial court. (See Foucha v. Louisiana, supra, 504 U.S. at p.
81-82.)
Thus, the revised SVPA deprives the detainee of his right to due
process.
32
V.
APPELLANT’S INDETERMINATE COMMITMENT
UNDER THE REVISED ACT VIOLATES THE DUE
PROCESS CLAUSE OF THE FOURTEENTH
AMENDMENT BECAUSE THE REVISED STATUTE
FAILS TO PROVIDE FOR MANDATORY PERIODIC
HEARINGS ON THE ISSUE OF WHETHER
CONTINUED COMMITMENT IS WARRANTED.
Likewise, an indefinite commitment is inconsistent with the notion
that a valid civil commitment can occur only when the defendant has an
existing “mental illness” or “mental abnormality.” (See, Hendricks, supra,
521 U.S. at p. 358 [SVP commitment requires a finding of dangerousness
coupled with an existing “mental illness,” or “mental abnormality”].) More
recently, in Kansas v. Crane (2002) 534 U.S. 407, 412-413, the United States
Supreme Court clarified this standard by requiring “a special and serious
lack of ability to control behavior,” in order to commit a SVP defendant.
The California Supreme Court reached a similar result. In California
findings that the SVP defendant is “likely to engage in acts of sexual
violence” and that “as the result of a current mental disorder which
predisposes the person to commit violent sex offenses, he or she presents a
substantial danger–that is, a serious and well founded risk of reoffending in
this way if free” are required. (People v. Superior Court (Ghilotti) (2002) 27
Cal.4th 888, 916.)
Mental illness, however, is not necessarily a permanent condition. A
person’s mental state, including whether he suffers from a existing “mental
illness”or “mental abnormality” which makes him dangerous to the
community, cannot rationally be determined from the fact that the same
person suffered from such condition in the past. Because of the complexity
and varying nature of mental illnesses, a past diagnosis cannot be sufficient
33
deemed evidence of a current “mental illness or “mental abnormality.”
(People v. Munoz (2005) 129 Cal.App.4th 421, 429 [the issue in SVP
proceedings is whether the defendant currently suffers from a mental
condition and not whether he did so at some time in the past].) Yet the
indefinite commitment imposed under the revised SVPA improperly and
irrationally presumes that once a person is diagnosed with a qualifying
mental disorder, that such disorder will continue indefinitely.
In this regard, the Due Process Clause forbids holding an insanity
acquittee beyond the period of time that he is both mentally ill and
dangerous. (Foucha v. Louisiana, supra, 504 U.S. at p. 77; O’Connor v.
Donaldson (1975) 422 U.S. 563, 574-575.) Because an individual who has
been civilly committed is similarly situated to an insanity acquittee, the same
rule should be applied with equal force to the SVPA.
The revised SVPA creates an unacceptable risk that an SVP detainee
who no longer qualifies as a sexually violent predator will have his
commitment continued in violation of his right to due process. After the
initial commitment, the SVP detainee has no right to a hearing at which the
government must prove the need for continued detention. The government
can avoid ever having to make any further showing simply by not filing a
petition under section 6605.
Nor is a petition filed by the detainee under section 6608 an
acceptable substitute. First, the court may summarily dismiss a petition filed
under section 6608 if, in the court’s view, the petition is frivolous. (§ 6608,
subd. (a).) Second, even if the detainee obtains a hearing on the merits, his
commitment can be continued if he cannot prove that he no longer is a
sexually violent predator. Third, unlike section 6605, section 6608 does not
provide for the appointment of a defense expert for indigent detainees. Thus,
34
while section 6608 assigns the burden of proof to the detainee, it makes no
provision to provide him with the expert witnesses which would undoubtably
be required to prove his case.
Due process forbids civil commitment once the detainee no longer
suffers from a mental condition which qualifies him as a sexually violent
predator. Continued detention requires periodic and mandatory hearings in
which the government bears the burden of proof. (See, Foucha v. Louisiana,
supra, 504 U.S. at p. 81-82.)
Absent such proceedings, there is no
mechanism in place to insure that a person will not continue to be detained
beyond the period which is legally justified. The procedures under the
revised SVPA are insufficient protect the detainee’s liberty interest under the
Constitution in being freed from indefinite confinement in a mental facility.
Consequently, appellant’s indeterminate commitment to the custody of the
Department of Mental Health must be reversed.
35
VI.
APPELLANT’S INDETERMINATE COMMITMENT
TO THE CUSTODY OF THE DEPARTMENT OF
MENTAL HEALTH RENDERS THE SVPA PUNITIVE
IN NATURE AND VIOLATES THE EX POST FACTO
CLAUSE.
A.
The Prohibition Against Ex Post Facto Laws
Article I, section 10 of the United States Constitution provides: "No
State shall . . . pass any . . . ex post facto law. . . ." An ex post facto law is one
which later punishes an act done before the enactment of the law. “The ex
post facto law [has] been anathema to the American legal system from its
inception.” (People v. Mesce (1997) 52 Cal.App.4th 618, 622.)
The Ex Post Facto Clause prohibits three categories of legislative
acts: (1) those which punish a previously committed act, which was innocent
when done, as a crime; (2) those which increase the punishment for a crime,
after its commission; and (3) those which deprive one charged with a crime
of any defense available according to law at the time when the act was
committed. (Collins v. Youngblood (1990) 497 U.S. 37, 42.)
While in the usual case, the Ex Post Facto Clause applies to
“punishment” for criminal acts, labeling an action as “civil” is not dispositive
of whether there has been an ex post facto violation. (Kansas v. Hendricks,
supra, 521 U.S. at p. 361.) A “civil” categorization must be rejected where
the party challenging the statute provides the clearest proof the statutory
scheme was so punitive in purpose or effect as to negate the state’s attempt to
label it civil. (Ibid.)
This issue was addressed by the United States Supreme Court in the
Hendricks case concerning the Kansas sexually violent predator act.
(Kansas v. Hendricks, supra, 521 U.S. at pp. 361-363.) The defendant there
argued the Kansas statute which allowed for an indefinite number of
one-year commitments, was punitive in purpose and violated the Ex Post
36
Facto Clause. The Supreme Court disagreed. In doing so, the Court noted
that “nothing on the face of the statute suggests that the legislature sought to
create anything other than a civil commitment scheme designed to protect
the public from harm.” (Ibid.) The Court further concluded the Kansas law
did not implicate retribution or deterrence, the two primary objectives of
criminal punishment. (Ibid.)
Instead, the Court found that the commitment under Kansas law was “
linked to the stated purposes of the commitment, namely, to hold the person
until his mental abnormality no longer causes him to be a threat to others.”
(Kansas v. Hendricks, supra, 521 U.S. at pp. 363-364.) In this regard, the
Court expressly relied upon the fact that under Kansas law the maximum
amount of time an individual can be incapacitated pursuant to a single
judicial proceeding was one year and that commitment beyond the one year
required a court determination that the detainee satisfies the same standards
as required for the initial confinement beyond a reasonable doubt. (Ibid.)
The Court viewed the requirement for annual judicial determinations as
evidence that Kansas did not intend the commitment last any longer than the
mental abnormality which rendered him dangerousness. (Ibid.; see also
Hubbart, supra, 19 Cal.4th at pp. 1171-1175 [applying rationale from
Hendricks case to conclude California SVPA did not violate the Ex Post
Facto Clause].)
More recently, the United States Supreme Court rejected ex-post
facto challenge to Alaska’s sexual offender registration law in Smith v. Doe
(2003) 538 U.S. 84. In doing so, the Court first considered the legislative
intent stating: “[a] conclusion that the legislature intended to punish would
satisfy an ex-post facto challenge without further inquiry into its effect, so
considerable deference must be accorded to the intent as the legislature has
37
stated it.” (Id. at pp. 92-93.)
The Court concluded the Alaska legislature intended a civil scheme
because: (1) the goal of the law was to notify the public of the presence of
high risk sex offenders; (2) the codification of the statute in the criminal code
was not determinative because other non-punitive statutes were in that code;
(3) aside from the duty to register, the act did not mandate any procedures.
(Smith v. Doe, supra, 538 U.S. at pp. 95-96.)
The analysis, however, did not end with legislative intent. The Court
in the Smith v. Doe case, next considered the whether the effect of the statute
was punitive using a seven factor test set forth in Kennedy v.
Mendoza-Martinez (1963) 372 U.S. 144. In this regard, the Court considered
whether: (1) the sanction involves an affirmative disability or restraint; (2)
the sanction has historically been regarded as a punishment; (3) the sanction
is applicable only on a finding of scienter; (4) its operation will promote the
traditional aims of punishment-retribution and deterrence; (5) the behavior to
which it applies is already a crime; (6) an alternative purpose to which it may
rationally be connected is assignable for it; and (7) it appears excessive in
relation to the alternative purpose assigned. (Kennedy v. Mendoza-Martinez,
supra, 372 U.S. at pp. 168-169.)
Ultimately the Court concluded the registration requirement at issue
was not punitive in effect because: (1) the dissemination of truthful
information in furtherance of a legitimate governmental objective was not
punishment; (2) the act imposed no physical restraint and therefore did not
resemble punishment; (3) the stigma from the availability of the information
flowed from the fact of the conviction which was already a matter of public
record; (4) the deterrent nature of the act was not sufficient by itself to make
the statute punitive because many non-punitive governmental programs have
38
that objective; and (5) the act had a rational connection to a non-punitive
purpose. (Smith v. Doe, supra, 538 U.S. at p. 101-102.)
B.
The Imposition of An Indefinite Commitment Is Punitive In
Nature.
In contrast, punitive purpose of the indefinite commitment period in
the revised California statute is evident from the scope of the reforms
embodied in both SB 1128 and Proposition 83, the “intent clause” which
accompanied the proposition.
That the intent of Proposition 83 was
punishment, rather than treatment was made clear in Official Voter
Information Guide:
SEC. 31. Intent Clause
It is the intent of the People of the State of California in
enacting this measure to strengthen and improve the laws
that punish and control sexual 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.
(Official Voter Information Guide for the California General Election of
November 7, 2006, page 138, emphasis added.)
The intent to punish is also evident from the scope of the reforms. In
in addition to providing for the indefinite civil commitment at issue in the
present case, both measures: (1) increased penalties for violent and habitual
sex offenders and child molesters; (2) lengthened periods of parole; and (3)
expanded the definition of a sexually violent predator.
In addition,
Proposition 83 prohibited registered sex offenders from residing within
2,000 feet of any school or park and required lifetime Global Positioning
39
System monitoring of felony registered sex offenders. (See, Stats. 2006, ch.
337, §§ 53-63; and http://www.calvoter.org/voter/elections/2006/general/
props/prop83.html .) Thus, it is clear that the imposition of an indefinite
term, was as part of a set of punitive measures intended to increase the period
of time sex offenders are held in custody some form of custody and/or under
government supervision.
Analysis under the Kennedy v. Mendoza-Martinez test reveals that the
changes made to the SVPA are also punitive in effect. Although a purpose
other than punishment may ostensibly be assigned to the indeterminate
commitment, the revised SVPA can no longer be deemed non-punitive as the
term imposed is excessive in relation to its alternative purpose.
As discussed in section V. above, mental illness is not necessarily a
permanent condition. Yet, the revised statute allows the imposition of an
indeterminate commitment without required periodic judicial review
requiring the government to prove the detainee still meets the requirements
for commitment. Under this revised scheme, a person could be retained in
custody long past the duration of his mental illness without the government
ever having to justify the need for the ongoing commitment. The effect,
consistent with the apparent purpose of the package of reforms, is an increase
in the length of time a detainee remains in custody.
An indeterminate commitment is an affirmative restraint. Affirmative
restraints have historically been regarded as punishment. Indeed, the SVPA
now resembles the Indeterminate Sentencing Law in which offenders are
sentenced to life terms subject to parole by the parole board.
The behavior to which the SVPA applies –both past conduct and
future conduct–is a crime. Indeed, both SB 1128 and Proposition 83,
expanded the number of crimes making a defendant eligible for
40
commitment, and provide for lifetime commitment with the burden on the
SVP detainee to prove his fitness for release. Proposition 83 also reduced the
number of victims necessary for commitment as a SVP from two to one.
These measures, expanding the scope of the SVPA changed it from a law
specifically tailored to a small group of troublesome recidivist sex offenders
to a general sex crime statute that simply locks sex offenders away for longer
periods of time than specified in penal statutes.
The changes made to the SVPA by Proposition 83 and SB 1128 result
in a punitive statute which violates the Ex Post Facto Clause. Any change to
a law which makes more burdensome the punishment for an act, after its
commission, violates the Ex Post Facto Clause. (Collins v. Youngblood,
supra, 497 U.S. at p. 42.) The requirement appellant serve an indeterminate
terms made more burdensome the consequence of a true finding to a SVP
petition. It also made more burdensome the consequences of appellant’s
qualifying
felony
Hence,
convictions.
appellant’s
indeterminate
commitment to the State Department of Mental Health violates the Ex Post
Facto Clause.
41
VII.
APPELLANT’S INDETERMINATE COMMITMENT
VIOLATES THE DOUBLE JEOPARDY CLAUSE OF
THE FIFTH AMENDMENT.
The Double Jeopardy Clause of the Fifth Amendment provides no
“person [shall] be subject to the same offense to be twice put in jeopardy of
life or limb.” “The Clause protects only against the imposition of multiple
criminal punishments for the same offense” and only when the punishment is
imposed in successive proceedings (Hudson v. United States (1997) 522
U.S. 93, 99, emphasis in original.)
The prohibition against multiple
punishment is designed to prevent the government from seeking the second
punishment because it is dissatisfied with the punishment obtained in the
first proceeding.
In the Hendricks case, the Court considered whether the Kansas
SVPA violated the Double Jeopardy Clause. While the Supreme Court
concluded that it did not, it did so on the basis that the Kansas law did not
impose “criminal punishment.” (Kansas v. Hendricks, supra, 521 U.S. at p.
369-370.) The revisions to California’s SVPA, including the imposition of
an indefinite term, however, render California’s law punitive in nature and
mandate a contrary result.
As with ex post facto analysis, for purposes of determining whether a
consequence will be considered “criminal punishment” for purposes of
protection under the Double Jeopardy Clause, the mere labeling of a statute
as civil is not dispositive. (Hudson, supra, 522 U.S. at pp. 98-99.) As with
ex post facto analysis, the court first looks to the whether the legislature
intended to impose a civil penalty or criminal punishment. (Ibid.) Second, in
cases where the legislature has intended a civil penalty, the court will then
use the seven factors set forth in the Kennedy v. Mendoza-Martinez test to
42
determine “whether the statutory scheme was so punitive either in purpose or
effect," as to "transform what was clearly intended as a civil remedy into a
criminal penalty." (Ibid., quoting Rex Trailer Co. v. United States, (1956)
350 U.S. 148, 154, 100; see also Smith v. Doe, supra, 538 U.S. at p. 97
[noting that the Kennedy v. Mendoza-Martinez factors originated in Double
Jeopardy Law before migrating to ex post facto analysis].)
As discussed with respect to ex post facto analysis in section VI. B.
above, the package of reforms made to California’s SVPA by SB 1128 and
Proposition 83 evince legislative and voter intent to impose criminal
punishment.
Moreover, as further discussed above, analysis using the
Kennedy v. Mendoza-Martinez factors also reveals a statutory scheme which
is so punitive both in purpose or effect, that it is transformed into a criminal
penalty, notwithstanding a “civil” label.
In the present case, appellant was already tried, convicted, and
sentenced to state prison for his sexual offenses.
Thus, any further
punishment for these same offenses is a clear violation of the Double
Jeopardy Clause.
Appellant’s indeterminate commitment constitutes
additional punishment and violates the Double Jeopardy Clause of the Fifth
and Fourteenth Amendments.
43
VIII. APPELLANT’S INDETERMINATE COMMITMENT WITH
LIMITED JUDICIAL REVIEW OF HIS CUSTODIAL STATUS
VIOLATES THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT.
The equal protection guarantees of the federal and state constitutions
require that persons "similarly situated" receive like treatment under the law.
(See e.g., In re Gary W. (1971) 5 Cal.3d 296, 303.) A meritorious claim
under the Equal Protection Clause first requires a showing that the state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530.) If so, and the
classification affects a fundamental interest, the classification is subject to
strict scrutiny review. (Bowens v. Superior Court (1991) 1 Cal.4th 36, 42.)
Here, the similarly situated groups include: (1) those who meet the
definition of sexually violent predator under the SVP Act; (2) those
committed under Penal Code section 2960, et. seq., the Mentally Disordered
Offender Act (“MDOA”) ; (3) and individuals committed to the custody of
the Department of Mental Health because they were found not guilty of a
crime by reason of insanity. (People v. Buffington (1999) 74 Cal.App.4th
1149, 1156; In re Calhoun (2003) 121 Cal.App.4th 1315, 1353-1354.)
A classification which affects the fundamental right of liberty triggers
the need for a strict scrutiny review. (See Bowens, supra, 1 Cal.4th at p. 42.)
The strict scrutiny test places the burden on the government to show that the
disparate treatment of similarly situated groups is necessary to further a
compelling state interest and that the distinctions created by the statute are
necessary to further that interest. (In re Arthur W. (1985) 171 Cal.App.3d
179, 184-185; People v. Olivas (1976) 17 Cal.3d 236, 243.)
SVP defendants and MDO defendants are both committed for
44
treatment because they represent a danger to the public because of a mental
disorder. SVP defendants are subject to indeterminate commitments with
the SVP detainee having the burden of proving his fitness for relief unless the
state elects to grant the SVP detainee permission to file a petition pursuant to
section 6605.
In contrast, commitments under the MDOA are for a period of one
year. (Pen. Code, § 2972, subd. (c).) Unlike the revised SVPA, the MDOA
grants the detainee the right to periodic judicial review and jury trial in which
the state has the burden of proving beyond a reasonable doubt the need for
continued treatment. (Pen. Code, § 2972, subd. (a).) There is no compelling
state interest that is advanced by granting MDO defendants the right to
annual review of their custodial status, but making SVP defendants subject to
potentially a life term with no meaningful judicial review of their
commitment.
Nor can the state justify the disparity in treatment between the SVP
defendant and those persons committed after of a finding of not guilty by
reason of insanity.
An insanity acquittee has the right to submit an
application for release after having been confined for a period of not less than
180 days. (Pen. Code, § 1026.2, subds. (a) and (d).) At a hearing on such
applications, the acquitee has the burden of proof by a preponderance of the
evidence” in hearings under that section. (Pen. Code, § 1026, subd. (k).)
Unlike the SVP detainee, however, the trial court may not summarily deny
the acquittee’s application, but is required to hold a hearing. (People v. Soiu
(2003) 106 Cal.App.4th 1191, 1197.) Thus, insanity acquittees have the
right to a hearing on a petition for release within 180 days following their
initial commitment.
SVP defendants, by contrast, do not have any right to compel a
45
hearing on the merits regarding their committed status, and that deprivation
continues indefinitely. There is no compelling state interest which justified
such differential treatment between individuals committed as insanity
acquittees and SVP defendants.
Consequently, the disparate treatment between SVP detainees, on the
one hand, and MDO and insanity acquittees on the other violates the equal
protection guarantees of the Fourteenth Amendment because it is not
justified by a compelling state interest.
commitment must be reversed.
46
Appellant’s indeterminate
IX.
APPELLANT’S INDETERMINATE COMMITMENT
VIOLATES THE PROHIBITION AGAINST CRUEL
AND UNUSUAL PUNISHMENT UNDER THE
CALIFORNIA CONSTITUTION AND THE EIGHTH
AND FOURTEENTH AMENDMENTS TO THE
FEDERAL CONSTITUTION.
The Eighth and Fourteenth Amendments of the federal constitution
and article I, section 17 of the California Constitution prohibit cruel and
unusual punishment. A sentencing scheme that is irrational and arbitrary
violates the Eighth Amendment. (Furman v. Georgia (1972) 408 U.S. 238,
255 [J. Douglas concurring][‘‘cruel and unusual’’ punishment clause
requires legislatures to write penal laws that are evenhanded, nonselective,
and nonarbitrary, and requires judges to see to that laws are not applied
sparsely, selectively, and spottily to unpopular groups].) Such is the case
here.
As with the prohibitions against ex post facto laws and double
jeopardy, in order to trigger the constitutional protection against cruel and
unusual punishment, the statute at issue must impose “punishment.” In this
regard, courts use an analysis identical to the analysis used to determine
whether the statute is “criminal punishment” for purposes of ex post facto
and double jeopardy analysis. (Smith v. Doe, supra, 538 U.S. at p. 97.)
Thus, as explained in sections VI.B. above, the revision to California’s
SVPA render the statute punitive for the purpose of triggering the prohibition
against cruel and unusual punishment.
California’s SVPA suffers from several infirmities creating a
potentially lifelong commitment in violation of the Eighth Amendment and
article I, section 17, of the California Constitution. An individual who has
committed a single incident of sexual criminal misconduct can be subjected
47
to lifelong incarceration by the Department of Mental Health. Unless the
director of the Department of Mental Health, in his sole discretion and
without adversarial judicial review, consents to the defendant’s release, the
defendant will remain in custody unless he can carry the burden in court of
proving he is not fit for commitment.
California’s SVPA is irrational because it casts an individual with a
single incident of sexual misconduct into the same category of individuals
with a lifelong pattern of sexual misconduct. Moreover, the act imposes
what is effectively a lifetime commitment based on a mental disorder at the
time of the initial commitment. This too renders the indefinite commitment
irrational because the existence of a past or present mental disorder does
rationally lead to the conclusion that the defendant’s mental disorder will not
change over time or abate to the point in which the defendant is no longer a
danger.
Indeed, the evidence at trial was to the contrary. Dr. Owen, the
prosecution’s expert witness, testified that men under the age of 25, have a
high risk of reoffending. (2RT 103.) He further testified that men in their
50's and 60's have a lower risk of reoffending. Thus, the rational conclusion
is that the risk of reoffending will decline over time for most, if not all, men
over time. Yet, the indeterminate commitment required by the revised
SVPA ignores this decline in risk over time and instead irrationally presumes
that, unless the detainee can prove otherwise, perpetual confinement is
justified based on a one-time finding.
California’s SVPA suffers from yet another infirmity rendering it
“cruel and unusual” under the Eighth Amendment: the imposition of an
indeterminate term is disproportionate to the offense. In In re Lynch (1972) 8
Cal.3d 410, the California Supreme Court held that an indeterminate
48
sentence for a second conviction for indecent exposure constituted cruel and
unusual punishment because it was disproportionate to the offense. In doing
so, the Court set forth a framework for such analysis.
In this regard, the Court first held that for purposes of this analysis, an
indeterminate sentence will be viewed as life-sentence and it is that
life-sentence which must survive constitutional scrutiny. (In re Lynch,
supra, 8 Cal.3d at p. 419-420.) Next, the court turned to three techniques
used by courts to conclude that a sentence is cruel and unusual because it is
disproportional to the offense. No single technique is dispositive.
First, the court can compare the sentence to the nature of the offense
and the offender, and the degree of danger they present to society. (In re
Lynch, supra, 8 Cal.3d at p. 419-420.) Appellant does not argue that the
nature of his offenses was trivial, non-violent, or victimless. However, as
discussed above, the imposition of a life-term is irrational in the context of a
SVP because it fails to account for the declining risk of danger to society as
the detainee ages. Moreover, it fails to account for any potential beneficial
impact of treatment.
In the present case, appellant was 47 years old at the time the sentence
was imposed. According to Dr. Owen, his risk of reoffending should be
expected start dropping in about three years. Consequently, imposing a life
term is disproportionate in comparison to the expected danger.
The second technique which can be used to assess whether the
sentence is improperly disproportional, is to compare the challenged
sentence to other sentences in the same jurisdiction. In this regard, a
defendant subject to sentencing for a sex crime under Penal Code section
667.61 will be sentenced to either 25 years to life or 15 years to life in prison
and receives custody credits. (Pen. Code, §667.61, subd. (a)(b), and (j).) A
49
“habitual sexual offender” sentenced under Penal Code section 667.71,
receives a sentence of 25 years to life and receives custody credits. (Pen.
Code §667.71, subd. (b).) Defendants convicted of a single count of a sex
crime are subject to relatively short determinate sentences. (E.g., Pen. Code,
§261, subd. (a)(2).)
Unlike the SVP detainees, individuals subject to sentencing under
sections 667.61 and 667.71 have the right to a parole hearing after serving
the mandatory minimum period of time. Appellant on the other hand, is
subject to a life-term with no right to a hearing on the merits to determine
whether he should be released. He is not entitled to custody credits and he
has the burden of proving that he is fit for release. These additional burdens
make appellant’s sentence far more onerous that sentences for similar
offenses in California.
The third technique employed to determine whether a sentence is
unconstitutionally disproportionate to the offense is to compare the
challenged sentence to other sentences in other jurisdictions. Counsel is not
aware of any other sexually violent predator law that provides for
indeterminate commitments, allows commitment based on a single offense,
and places the burden on the defendant to prove his fitness for release.
Thus, under each of the techniques, the revised SVPA, violates the
prohibition against cruel and unusual punishment, both facially and as
applied to appellant.
50
X.
THE LIMITATIONS PLACED ON APPELLANT’S
RIGHT TO PETITION THE COURT FOR RELEASE
UNDER THE REVISED VERSION OF THE SVPA
VIOLATES HIS FIRST AMENDMENT RIGHT TO
PETITION THE COURTS FOR REDRESS OF
GRIEVANCES.
The First Amendment of the United States Constitution provides in
part, “Congress shall make no law . . . abridging the right of the people . . . to
petition the Government for a redress of grievances.” The First Amendment
applies to the states through the Fourteenth Amendment. (Catholic Charities
of Sacramento Inc. v. Superior Court (2004) 32 Cal.4th 527, 542.) “The
right of access to the courts is an aspect of the First Amendment right to
petition the Government for redress of grievances” (Bill Johnson’s
Restaurant, Inc. v. NLRB (1983) 461 U.S. 731, 741; Transport Co. v.
Trucking Unlimited (1972) 404 U.S. 508, 510.)
The right of access to the courts is retained by person’s while in
custody. Preservation of this right is of particular concern when the action is
one “seeking new trials, release from confinement, or vindication of
fundamental civil rights.” (Bounds v. Smith (1977) 430 U.S. 817, 827.)
Thus, in Ex parte Hull (1941) 312 U.S. 546, the Court held that a
prison regulation which allowed prison officials to screen a prisoner’s legal
papers and decide whether or to forward them to the court to be
unconstitutional. “[T]he state and its officers may not abridge or impair
petitioner’s right to apply to a federal court for a writ of habeas corpus.
Whether a petition for a writ of habeas corpus addressed to a federal court is
properly drawn and what allegations it must contain are questions for that
court alone to determine.” (Ex parte Hull, supra, 312 U.S. at p. 549.)
Moreover, with respect to the incarcerated, the right to access the
51
courts includes not only the right to file papers with the court, but requires
the government “to shoulder affirmative obligations to assure all prisoners
meaningful access to the courts.” (Bounds v. Smith, supra, 430 U.S. at p.
824; Lewis v. Casey (1996) 518 U.S. 343, 351 [defendants must have “a
reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the courts”].) Thus, “the fundamental
constitutional rights of access to the courts requires prison authorities to
assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance from
persons trained in the law.” (Bounds v. Smith, supra, 430 U.S. at p. 827; see
also, Burns v. Ohio (1959) 360 U.S. 252, 257 [indigent prisoner must be
allowed to file appeals and habeas corpus petitions without payment of
docket fees]; Griffin v. Illinois (1956) 351 U.S. 12, 20 [states must provide
indigent defendants with trial records]; Wolff v. McDonnell (1974) 418 U.S.
539 [striking down regulation prohibiting prisoners from assisting each
another with civil rights complaints].)
The revised SVPA denies SVP detainees of a reasonably adequate
opportunity to present claimed violations of fundamental constitutional
rights to the courts. Under section 6605, subdivision (b), a detainee may file a
petition for release only with the concurrence of the director of the
Department of Mental Health. This restriction is analogous to the regulation
in Ex parte Hull, which allowed a prison official to screen writ petitions
prepared by prisoners and refuse to forward said petitions if the official
alleged the petition was not in proper form. In both cases, the state has
erected itself as a gatekeeper between the incarcerated individual and the
court. Appellant does not have a reasonably adequate opportunity to present
a claimed violation of his constitutional rights to the courts when the director
52
of the Department of Mental Health has unlimited and sole discretion to not
authorize the filing of a petition.
While a SVP detainee does have the right to file a petition pursuant to
section 6608, such a petition does not grant a SVP detainee meaningful
access to the courts. Under section 6608, subdivision (a), the SVP detainee
has the right to counsel, but there is no provision allowing for the
appointment of the medical expert who will be necessary to prove the
detainees case. Like the prisoners in the Bounds case who were denied
access to law library, this denies the detainee with the tools he needs to make
the access meaningful.
Moreover, section 6608, subdivision (a) grants the trial court the
authority to summarily deny the petition without holding a hearing if it
concludes the petition is frivolous. Section 6608, subdivision (i), places the
burden of proof on the SVP detainee by a preponderance of the evidence.
The trial court, in assessing whether a petition is frivolous, will have to
evaluate it applying the standard of proof in subdivision (i). The combined
effect of section 6605 and 6608 will be to deny SVP detainees the
opportunity to have hearing on the merits in court in which the State has to
justify its continued incarceration of the detainee.
An SVP detainee does not receive meaningful access to the courts
when the State can perpetually incarcerate him without ever being required
to prove during a hearing on the merits in court the necessity for the
continued incarceration. Consequently, the revised SVPA denies appellant
his federal constitutional right of meaningful access to the courts.
53
XI.
PROPOSITION 83 VIOLATED THE SINGLE SUBJECT
RULE APPLICABLE TO BALLOT INITIATIVES.
To the extent that the government contends Proposition 83 is
applicable to appellant’s case, the proposition should not be given effect as it
violated the “single subject rule” of the California Constitution.
Proposition 83 contained provisions that: (1) expanded the definition
of certain sex offenses; (2) increased the penalties for specific sex offenses;
(3) prohibited probation for certain sex crimes; (4) eliminated custody credits
for inmates convicted of certain offenses; and (5) extended the parole period
for certain sex offenders.
The Initiative also required registered sex
offenders to be monitored by global positioning satellite devices and barred
registered sex offenders from living within 2000 feet of any school or park.
(See Legislative Analyst’s Office; Proposition 83; Sex Offenders. Sexually
Violent Predators. Punishment, Residence Restrictions and Monitoring.
Initiative Statute.)
Article II, section 8 of the California Constitution sets forth the
procedure for ballot initiatives.
Article II, section, 7, subdivision (d),
provides, “An initiative measure embracing more than one subject may not
be submitted to the electors or have any effect.” An initiative complies with
this rule, if, “despite its varied collateral effects, all of its parts are
`reasonably germane` to each other,' and to the general purpose or object of
the initiative.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 576.)
The rule “does not require that each of the provisions of a measure
effectively interlock in a functional relationship.[Citation.] It is enough that
the various provisions are reasonably related to a common theme or purpose.
[Citation.]” (Ibid.) An initiative will be upheld if the measure discloses “a
reasonable and common sense relationship among their various components
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in furtherance of a common purpose.” (Ibid.) Such “common purpose”
however, cannot be “so broad that a virtually unlimited array of provisions
could be considered germane thereto and joined in this proposition,
essentially obliterating the constitutional requirement. [Citation.]” (Ibid.)
Proposition 83 fails the above test because it combined too many
disparate topics without a common purpose under a broad and amorphous
theme of dealing with sex offenders. In this regard, the proposition included
provisions modifying civil, criminal, and regulatory matters.
The portions of Proposition 83 expanding the definition of sex
offenses, increasing penalties for certain offenses, prohibiting probation,
eliminating custody credits, and extending parole, relate to exclusively
criminal law issues. In contrast, the portions of Proposition 83 requiring
registered sex offenders to be monitored via GPS tracking and to live 2000
feet from schools address regulatory issues. (See People v. Sorden (2005) 36
Cal.4th 65, 73 [the requirement for a sex offender to register is regulatory in
nature].) Finally, the SVPA is a special proceeding of a civil nature. (Murillo
v. Superior Court (2006) 143 Cal.App.4th 730, 735; People v. Superior
Court (Cheek) (2001) 94 Cal.App.4th 980, 988.)
The fundamentally different nature and purposes of criminal
proceedings, and a special proceeding of a civil nature under the SVPA,
preclude a finding that the provisions of Proposition 83 “disclose a
reasonable and common sense relationship among their various components
in furtherance of a common purpose.” (Manduley, supra, 27 Cal.4th at p.
575.) In this regard, the California Supreme Court has squarely held SVP
proceedings are protective rather than punitive. (People v. Vasquez (2001)
25 Cal.4th 1125, 1231-1232.) Moreover, the Legislature disavowed any
“punitive purpose” in the act and stated its intent was to provide treatment to
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mentally disordered individuals who cannot control sexually violent criminal
behavior. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171, citing
Stats. 1995, ch. 763, §§ 1; Sen. Com. on Crim. Procedure, Analysis of
Assem. Bill No. 888 (1995-1996 Reg. Sess.) July 11, 1995.)
“The
Legislature also made clear that, despite their criminal record, persons
eligible for commitment and treatment as SVP's are to be viewed "not as
criminals, but as sick persons." (Ibid., citing § 6250.)
A review of the many topics covered by Proposition 83 demonstrates
that it did not address a single subject within the meaning of Article II,
section 8, subdivision (d). The following changes to California law were
made by Proposition 83: (1) amendment of the aggravated kidnaping statute,
Penal Code section 209, to eliminate sexual penetration as a requirement for
kidnaping to commit certain sex crimes; (2) amendment of the sexual assault
statute, Penal Code section 220, to require a prison commitment; (3)
amendment of the aggravated sexual assault on a child statute, Penal Code
section 269, to trigger a violation of the statute when the victim and
defendant are seven years apart in age rather than 10 years; (4) amendment of
Penal Code section 290.3 to increase the fines for sex offenders convicted of
failing to register; (5) the broadening of Penal Code section 311.11, which
prohibits possession of child pornography; (6) amendment of Penal Code
section 667.5 to broaden the types of sodomy, oral copulation, lewd acts,
sexual penetration, and sexual assaults, which constitute violent felonies; (7)
the broadening of the one-strike sexual offense statutes in Penal Code
sections 667.51 and 667.6 ; (8) the broadening of the habitual sexual offender
statute in Penal Code section 667.71; (9) the amendment of Penal Code
sections 1203.06 and 1203.075 to prohibit a grant of probation to individuals
convicted of certain sex offenses; (10) the amendment of Penal Code section
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3000 to extend the parole period for certain sex offenders; (11) the inclusion
of Penal Code section 3000.07 to require GPS monitoring of most
individuals required to register as sex offenders; (12) the amendment of
Penal Code section 3001 to extend the parole period for certain sex
offenders; (13) the amendment of Penal Code sections 3003 and 3003.5 to
require any person required to register under Penal Code section 290 to live
at least 2000 feet from any public or private school; and (14) the amendment
of the sexually violent predator provisions of the Welfare and Institutions
Code.
The purpose of the single subject rule is to avoid voter confusion.
(Shea Homes v. Alameda (2003) 110 Cal.App.4th 1246, 1258, review
denied.) Yet, Proposition 83 insured voter confusion by combining a civil
confinement scheme with amendments to penal statutes and implementation
of regulatory measures in a single initiative. It was unlikely the public
understood the SVP proceedings were civil in nature and provided
fundamentally different rights for defendants than the rights accorded
criminal defendants.
Further, “[t]he common purpose to which the initiative's various
provisions relate, however, cannot be so broad that a virtually unlimited
array of provisions could be considered germane thereto and joined in this
proposition, essentially obliterating the constitutional requirement.”
(Manduley, supra, 27 Cal.4th at p. 1162.) Yet, the above statutes only have
sex offenses as a common theme - - a theme that is so broad as to have very
little limit.
Proposition 83 does not disclose a reasonable and common sense
relationship among its various components. It is simply a scattered shotgun
approach to diverse topics which relate broadly to sex offenses. Proposition
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83 amended the penalties for sex offenses, the elements of certain sexual
offenses, amended the eligibility of certain defendants for probation,
amended the parole period for certain sex offenders, broadened the definition
of a violent felony, amended the one-strike sex statutes, the fines for failure
to register as a sex offender, added GPS monitoring for sex offenders, and
substantially revised the SVPA.
Thus, Proposition 83 violated the single subject rule applicable to
ballot initiatives and is therefore unenforceable.
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XII. APPELLANT SUFFERED PREJUDICE AS THE RESULT OF
THE ABOVE ERRORS; IF THIS COURT FINDS THAT THE
COURT HAD JURISDICTION TO EXTEND APPELLANT’S
COMMITMENT, THE JUDGMENT SHOULD BE MODIFIED TO
REFLECT A TWO-YEAR COMMITMENT.
A.
Appellant Was Prejudiced By The Application of The Revised
SVPA To His Case.
As discussed herein, under the Pre-SB 1128 version of the statute,
section 6604 permitted a SVP to be committed to the Department of Mental
Health for a term of two years. After which time, the burden was on the state
to file a petition for his continued detainment. Only after the government
sustained its burden to prove continued detainment was justified could an
SVP’s detention be continued for another two years.
As the result of the unconstitutional and improper application of the
revised act to appellant’s case, appellant was committed indefinitely and is
denied his right to periodic hearings at which the government is required to
prove, beyond a reasonable doubt that his condition still warrants detention.
Moreover, the burden is placed on him to prove he should be released. There
can be no question that appellant suffered prejudice by the application of the
revised act to his case.
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B.
Remedy
As discussed in section II above, the trial court lacked jurisdiction to
extend his commitment and therefore he should be immediately and
unconditionally released. However, if this Court disagrees as to the trial
court’s jurisdiction, the revisions made by SB 1128 and Proposition 83,
nevertheless, rendered what was formerly a constitutional act now
unconstitutional. The modifications to the SVPA, including the imposition
of an indefinite commitment, violated appellant’s federal right to due process
of law, equal protection of the law, the prohibition against ex-post facto laws,
the guarantee against double jeopardy, the protection against cruel and
unusual punishment, and his right of access to the courts. In addition,
Proposition 83, violated the state constitution’s “single subject rule” for
ballot initiatives. Finally, even it the revised statute is valid, the court’s
retroactive application of the revisions to appellate’s case in the absence of
statutory language so authorizing was invalid.
The issue of what is the appropriate remedy is answered by legislative
intent. (United States v. Booker (2005) 543 U.S. 220, 248-252.) With
respect to determining an appropriate remedy, the court seeks to determine
what the legislature would have intended in light of the court’s constitutional
holding. (Ibid.) “A court should refrain from invalidating more of the statute
than is necessary.” (Alaska Airlines, Inc. v. Brock (1987) 480 U.S. 678, 684.)
“[W]henever an act of Congress contains unobjectionable provisions
separable from those found unconstitutional, it is the duty of this court to do
declare, and to maintain the act in so far as it is valid.” (Ibid.) “Unless it is
evident that the Legislature would not have enacted those provisions which
are within its power, independently of that which is not, the invalid part may
60
be dropped if what is left is fully operative.” (Ibid.)
The SVPA act was held constitutional and was being enforced prior to
its amendment by Proposition 83 and SB 1128. Thus, when the invalid
provisions are excised, appellant’s commitment should be reduced to a
two-year term. At the end of the two years, he should have the right to a
hearing to determine if his commitment should be extended.
The
prosecution should have the burden of proof beyond a reasonable doubt at
the hearing and appellant should have the right to a jury and the assistance of
counsel and experts. The trial court’s order for appellant’s indeterminate
commitment should be so modified.
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XIII. THE ISSUES RAISED HEREIN HAVE NOT BEEN WAIVED.
A.
No Objection Was Necessary Because The Issues Herein Concern
Appellant’s Fundamental Constitutional Rights and Because The
Sentence Was Unauthorized.
As explained within appellant’s specific arguments, the issues raised
the this brief, arise from appellant’s fundamental federal constitutional rights
to due process, protection against ex post facto laws, protection against
double jeopardy, equal protection, and meaningful access to the courts.
Waiver of fundamental constitutional rights is not to be
implied and it is not lightly to be found. The record contains no
express waiver of the right . . .. We will not imply a waiver of
a fundamental right from the failure of defense counsel to
object at the time of trial.
(United States v. Provencio (9th Cir. 1977) 554 F.2d 361, 363; see also Gete
v. INS (9th Cir. 1997) 121 F.3d 1285, 1293 ["it is a central tenet of
constitutional law that courts indulge every reasonable presumption against
waiver"], quoting Aetna Ins. Co. v. Kennedy (1937) 301 U.S. 389, 393;
People v. Vera (1997) 15 Cal.4th 269, 276-277; People v. Menchaca (1983)
146 Cal.App.3d 1019, 1025.)
Moreover, to the extent that appellant’s sentence was based upon an
invalid statute or the lack of jurisdiction, the sentence was unauthorized and
no objection was required. (People v. Scott (1994) 9 Cal. 4th 331, 354.)
B.
To The Extent That Objection Was Necessary, The Objections
Were Properly Made.
Deputy Public Defender Clarence Darrow represented appellant
62
during trial. At the time the verdict was read, however, Deputy Public
Defender Perry Mason appeared for Darrow. (5RT 788.) At that time,
Mason requested a hearing for the purpose memorizing defense objections.
(5RT 793.) The next day, such hearing was held and the court expressly
found that the defense objections were timely made. (5RT 793.) Defense
counsel objected to appellant’s indeterminate term on the grounds that: (1)
the SVPA does not permit amendment of petitions; (2) appellant was denied
due process because the amendment did not provide the defense with
adequate notice; (3) the commitment scheme further violates due process in
that it shifts the burden to the defendant to show that he is entitled to a jury
trial on the issue of his continued commitment; (4) the commitment scheme
violates equal protection. (5RT 793-797.)
Appellant contends that such objections are sufficient to preserve
appellant’s issues on appeal as set forth above.
63
C.
Should This Court Determine That A Required Objection Was
Not Made, Appellant’s Defense Counsel Provided Ineffective
Assistance of Counsel by Failing to Raising Appropriate
Objections to Appellant’s Indeterminate Commitment.
However, in the event that this Court determines required objections
were not made, appellant submits that he received ineffective assistance of
counsel. Appellant had a statutory right to counsel during his was entitled to
counsel in his jury trial on the issue of his involuntarily commitment as an
SPV. (See, e.g. People v. Williams (2003) 110 Cal.App.4th 1577, 1590
[right to counsel in MDO proceedings is statutory, not constitutional].)
Thus, appellant’s right to effective assistance of counsel derives from the
Fourteenth Amendment right to due process, not from the Sixth Amendment
right to effective assistance in criminal proceedings. But, where a state
statute creates a right to representation in a given type of proceeding, the
Fourteenth Amendment requires the representation be effective. (Evitts v.
Lucy (1985) 469 U.S. 387, 401; see also People v. Williams, supra, 110
Cal.App.4th at p. 1592 [in MDO proceedings "serious liberty interests were
at stake, necessitating competent and experienced counsel."]) The United
States Supreme Court has recognized the due process right of a subject of
involuntary commitment proceedings to effective assistance of counsel.
(Humphrey v. Cady (1972) 405 U.S. 504, 513.)
Under California law, effective assistance in involuntary commitment
proceedings is judged by the familiar standards of Sixth Amendment
jurisprudence. (See, e.g. People v. Williams (1999) 77 Cal.App.4th 436,
461-462 [applying Strickland v. Washington (1984) 466 U.S. 668, to
determine if counsel rendered effective assistance in MDO proceeding].;
People v. Pretzer (1992) 9 Cal.App.4th 1078,1086 [applying People v.
64
Ledesma (1987) 43 Cal.3d 171, 217- 218 as standard in MDO proceeding];
People v. Coronado (1980) 104 Cal.App.3d 491 [applying People v. Pope
(1979) 23 Cal.3d 412, 424 to MDSO proceeding].)
To provide effective assistance of counsel, a trial attorney must
provide representation equivalent to that which would be provided ”by a
reasonably competent attorney acting as a diligent, conscientious advocate.”
(Pope, supra, 23 Cal.3d at p. 424.) Reasonableness is measured under
“prevailing professional norms.” (Strickland, supra, 466 U.S. at p. 688.)
To obtain reversal on the ground of ineffective assistance of counsel
at sentencing, the appellant must show: (1) the trial attorney failed to act as
diligent advocate; and (2) absent the error, there was “a reasonable
probability the factfinder would have had a reasonable doubt respecting
guilt.” (Strickland, supra, 466 U.S. at p. 695; People v. Barocio (1989) 216
Cal. App.3d 99, 105-110; People v. Cotton (1991) 230 Cal. App.3d 1072,
1086.) Once an appellant has met these burdens, the appellate court must
look to the record for any explanation for the challenged acts or omissions.
(People v. Pope, supra, 23 Cal.3d at p. 425.) If explanations are present, the
court must inquire whether the explanation demonstrates that counsel was
reasonably competent and acting as a diligent advocate. (Ibid.) If the record
shows that counsel has failed to research the law or investigate the facts in
the manner of a diligent and conscientious advocate, the conviction should
be reversed. (Ibid.) If the record sheds no light on counsel’s actions, unless
counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation, the case is affirmed on
appeal. (Ibid.)
Where the client’s interest can be protected by making an argument,
trial counsel’s duty to a criminal defendant includes proffering that
65
argument. (People v. Cropper (1979) 89 Cal.App.3d 716, 719-720; People
v. Mendozo Tello (1997) 15 Cal.4th 264, 268.) Where the client’s interest
can be protected by making objection, the objection must be raised. (People
v. Nation (1980) 26 Cal.3d 169, 182; People v. Williams (1972) 22
Cal.App.3d 34, 45.) The need to make arguments and objections is most
crucial where a condition is deemed waived absent such argument or
objection. (People v. Scott, supra, 9 Cal.4th at p. 356, fn. 18.)
In the instant case, appellant was deprived of the effective assistance
of counsel to the extent this court may find his trial defense counsel failed to
timely raise any of the above objections to imposition of an indeterminate
term. Any competent attorney should have known that the changes made to
the SVPA by SB 1128 and the then pending Proposition 83 raised grave
constitutional concerns. The above challenges to the constitutionality of the
revised version of the SVPA raise pure issues of law for which there could be
no excuse not to have raised. Appellant could not possibly have received any
benefit by his defense attorney’s failure to raise the above challenges to the
revised version of the SVPA. Because there could no rational explanation
for the failure of appellant’s defense attorney to raise the above challenges to
the revised version of the SVPA, this claim of ineffective assistance of
counsel can be raised on appeal.
Finally, appellant was prejudiced by the failure to object because the
above issues all have merit and should result in reversal of the order
committing appellant to the Department of Mental Health for an
indeterminate term.
CONCLUSION
For the reasons stated above, this Court should reverse appellant’s
66
indeterminate commitment and order that appellant be released immediately
and unconditionally.
July 11, 2007
Respectfully submitted,
Attorney for Appellant
67
CERTIFICATE OF APPELLATE COUNSEL
Pursuant to California Rules of Court, rule 8.360(b)(1)
I, ____________, counsel for appellant, hereby certify, pursuant to
rule 8.360(b)(1) of the California Rules of Court, that I prepared the
foregoing Appellant’s Opening Brief on behalf of my client. The word count
for this brief is 16734. I further certify that I prepared this document using
WordPerfect®X3, and that the above-stated word count was generated by
WordPerfect®X3 for this document.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed, at _______, California, on July 11, 2007.
______________________
Attorney for Appellant
68
DECLARATION OF SERVICE
I, undersigned, say: I am over 18 years of age, employed in
California, in which county the within-mentioned delivery occurred, and not
a party to the subject cause. My business address is
______________________________________________ I served the
APPELLANT'S OPENING BRIEF of which true and correct a copy of the
document filed in the cause is affixed, by placing a copy thereof in a separate
envelope for each addressee named hereafter, addressed to each such
addressee respectively as follows:
Court of Appeal
Sixth District
333 West Santa Clara Street
Suite 1060
San Jose, CA 95113-1717
Office of the Attorney General
455 Golden Gate Ave., Room 11000
San Francisco, CA 94102
Honorable Tirso de Molina
Santa Clara County Superior Court
191 N. 1st Street
San Jose, CA 95113-1001
Sixth District Appellate Program
100 North Winchester Blvd.
Suite 310
Santa Clara, CA 95050
Deputy Public Defender
120 W. Mission Street
San Jose, CA 95110
Don Juan Tenorio
Deputy District Attorney
70 West Hedding Street
West Wing
San Jose, CA 95110
Each envelope was then sealed and with the postage thereon fully
prepaid deposited in the United States mail by me in California on July 11,
2007.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on July 11, 2007 at ___________, California.
__________________________
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