P. v. Rotroff CA6

Filed 3/20/13 P. v. Rotroff CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H033527

(Santa Clara County

Plaintiff and Respondent, Super. Ct. No. 210929)

v.

DENIS KEITH ROTROFF,

Defendant and Appellant.

In 2009, this court affirmed an October 22, 2008 order committing Denis Keith

Rotroff to an indeterminate term as a sexually violent predator ("SVP"). (See Welf. &

Inst. Code, § 6600 et seq.)1 After Rotroff petitioned for review, the Supreme Court

granted review and subsequently, following its decision in People v. McKee (2010) 47

Cal.4th 1172 (McKee), transferred the matter to this court. The Supreme Court directed

this court to vacate our decision and to reconsider the cause in light of McKee. The

court's order further provided: "In order to avoid an unnecessary multiplicity of

proceedings, the court is additionally directed to suspend further proceedings pending

1

All further statutory references are to Welfare and Institutions Code unless

otherwise specified.

1

finality of the proceedings on remand in McKee . . . . 'Finality of the proceedings' shall

include the finality of any subsequent appeal and any proceedings in this court."

Following trial on remand and appeal, the Fourth District, Division One, issued

People v. McKee (2012) 207 Cal.App.4th 1325 ("McKee II"). The Supreme Court denied

McKee's petition for review (review den. Oct. 10, 2012, S204503). The McKee case on

remand is now final. Accordingly, we now reconsider this case in light of the Supreme

Court's McKee decision.

We conclude that appellant Rotroff's claims lack merit.

I

Procedural History

Appellant Rotroff waived a jury trial and submitted the petition to extend his

commitment as an SVP for decision based upon documentary reports. The trial court

found, beyond a reasonable doubt, that appellant was an SVP and ordered him committed

for an indeterminate term. (§ 6604.) On appeal, appellant challenges the

constitutionality of the Sexually Violent Predator Act (SVPA) as amended by Proposition

83 in 2006.

II

Discussion

A. Single Subject Rule

Appellant maintains that Proposition 832 violated the single subject rule because it

"combined too many disparate topics without a common purpose under a broad and

amorphous theme of dealing with sex offenders." The single subject rule is expressed in

two constitutional provisions, one applicable to statutes and the other applicable to

2

We take judicial notice of the Voter Information Guide prepared by the Secretary

of State for the November 7, 2006 election insofar as it concerns Proposition 83. (Evid.

Code, §§ 452, 459.)

2

initiative measures. California Constitution, article II, section 8, subdivision (d), which

applies to initiatives, provides: "An initiative measure embracing more than one subject

may not be submitted to the electors or have any effect."3

The single subject rule is "a constitutional safeguard adopted to protect against

multifaceted measures of undue scope" and "forbids joining disparate provisions which

appear germane only to topics of excessive generality such as 'government' or 'public

welfare.' " (Brosnahan v. Brown (1982) 32 Cal.3d 236, 253.) "The single subject rule as

applied to the initiative has the dual purpose of avoiding log-rolling and voter confusion.

(Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d

208, 231 . . . .)" (Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1098.) It is intended to

avoid passage of a measure that combines "provisions which might not have commanded

majority support if considered separately" and to "minimize the risk of voter confusion

and deception. [Citation.]" (Amador Valley Joint Union High Sch. Dist. v. State Bd. of

Equalization (1978) 22 Cal.3d 208, 231.)

The California Supreme Court has "construed our two single subject provisions in

an accommodating and lenient manner so as not to unduly restrict the Legislature's or the

people's right to package provisions in a single bill or initiative. [Citations.]"

(Californians For An Open Primary v. McPherson (2006) 38 Cal.4th 735, 764.) It has

"found the single subject rules to have been satisfied so long as challenged provisions

meet the test of being reasonably germane to a common theme, purpose, or subject.

[Citations.]" (Ibid., fn. omitted.)

In Brosnahan v. Brown, supra, 32 Cal.3d 236, 248, it was argued that Proposition

8, commonly known as "The Victims' Bill of Rights," violated the single subject rule

3

With respect to statutes, article IV, section 9 of the California Constitution

provides in pertinent part: "A statute shall embrace but one subject, which shall be

expressed in its title. If a statute embraces a subject not expressed in its title, only the

part not expressed is void."

3

because it contained "disparate provisions covering a variety of 'unrelated' matters such

as school safety, restitution, bail, diminished capacity, and the like." The California

Supreme Court concluded that the proposition met "the 'reasonably germane' standard"

because "[e]ach of its several facets bears a common concern, 'general object' or 'general

subject,' promoting the rights of actual or potential crime victims." (Id. at p. 247.) The

court stated: "As explained in the initiative's preamble, the 10 sections were designed to

strengthen procedural and substantive safeguards for victims in our criminal justice

system. These changes were aimed at achieving more severe punishment for, and more

effective deterrence of, criminal acts, protecting the public from the premature release

into society of criminal offenders, providing safety from crime to a particularly

vulnerable group of victims, namely school pupils and staff, and assuring restitution for

the victims of criminal acts." (Ibid.) The "readily discernible common thread" uniting

the initiative's provisions was the goal of protecting and enhancing the rights of crime

victims. (Ibid.)

In Manduley v. Superior Court (2002) 27 Cal.4th 537, the Supreme Court upheld

Proposition 21 against various claims that it violated the single subject rule. (Id. at pp.

573-581.) Its provisions related to Three Strikes law, criminal gang activity, and the

juvenile justice system. (Id. at pp. 574-575.) The court determined that "[t]he general

object of the initiative is to address the problem of violent crime committed by juveniles

and gangs." (Id. at pp. 575-576.) It decided: "[T]he provisions of Proposition 21 that

change laws regarding gang-related crime and the juvenile justice system are reasonably

germane to each other and to the initiative's common purpose of addressing violent crime

committed by juveniles and gangs." (Id. at p. 576.) It further determined that "[r]evising

the list of violent and serious felonies to add crimes for which juveniles and gang

members can receive increased penalties is reasonably germane to the initiative's general

purpose of addressing juvenile and gang-related crime," "[e]ven if some of the crimes

4

added to the list of violent and serious felonies are more likely to be committed by an

adult who is not a gang member," because "the offenses nonetheless constitute crimes

that commonly are committed by members of street gangs and/or juvenile offenders" (id.

at p. 578).

In this case, the separate provisions of Proposition 83 are "reasonably germane to

a common theme, purpose, or subject" of protecting the public against the commission of

sex offenses. Appellant has not identified any provision that falls outside this common

purpose. The fact that the measure affected both Welfare and Institutions Code and Penal

Code sections is not determinative. (See Manduley v. Superior Court, supra, 27 Cal.4th

at pp. 574-575.) While appellant complains that the proposition reflects a "scattered

shotgun approach to diverse topics," he concedes that these topics "relate broadly to sex

offenses." The single subject rule does not require that each of the provisions of an

initiative measure effectively interlock in a functional relationship. (Id. at p. 575.)

In addition, we must reject appellant's assertion that the public probably

misunderstood that "SVP proceedings were civil in nature" since we assume the voters

duly considered and comprehended the voter materials. (Id. at p. 580.) The proposition's

official summary prepared by the Attorney General, which is contained in the Official

Voter Information Guide, explicitly stated up front, underneath the official title:

"Changes current two-year involuntary civil commitment for a sexually violent predator

to an indeterminate commitment, subject to annual review by the Director of Mental

Health and subsequent ability of sexually violent predator to petition court for sexually

violent predator's conditional release or unconditional discharge." (Voter Information

Guide, Gen. Elec. (Nov. 7, 2006) official title and summary of Prop. 83, p. 42, italics

added.) One of the proposition's express findings supporting the changes in the SVPA

stated in part: "California is the only state, of the number of states that have enacted laws

allowing involuntary civil commitments for persons identified as sexually violent

5

predators, which does not provide for indeterminate commitments." (Voter Information

Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (k), p. 127, italics added; see

Historical & Statutory Notes, 47C West's Ann. Pen.Code (2008) foll. § 209, pp. 52–53.)

Proposition 83 does not violate the single-subject requirement of article II, section

8, subdivision (d), of the California Constitution. (See People v. Kisling (2011) 199

Cal.App.4th 687, 693-694; People v. Keister (2011) 198 Cal.App.4th 442, 451-452.)

B. Constitutional Challenges to Indeterminate Term of Commitment for SVP's

1. Due Process

Appellant maintains that the revised SVPA, by providing for an indeterminate

term of commitment for persons determined to be SVP's and placing the burden of proof

for release on the committee, "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." He insists that due process requires "periodic and

mandatory hearings in which the government bears the burden of proof." He indicates

that a petition under section 6605, which places the burden of proof on the state (§ 6605,

subd. (d)) but requires administrative preauthorization (§ 6605, subd. (b)), does not

satisfy due process. He also argues that a petition for conditional release or unconditional

discharge under section 6608 does not satisfy due process because, although it had no

preauthorization requirement, it assigns the burden of proof to the SVP committee, it

allows the superior court to summarily dismiss frivolous petitions, and it does not provide

for the appointment of a defense expert if the committee is indigent.

Substantially similar arguments were raised, and addressed by the California

Supreme Court, in McKee. (McKee, supra, 47 Cal.4th at pp. 1188-1193.) The Supreme

Court reasoned that an initial finding beyond a reasonable doubt that a person meets the

definition of an SVP is "for present constitutional purposes, the functional equivalent of

the NGI acquittal in Jones [v. United States (1983) 463 U.S. 354 [103 S.Ct. 3043].]" (Id.

6

at p. 1191.) It concluded that "as in Jones, the requirement that McKee, after his initial

commitment, must prove by a preponderance of the evidence that he is no longer an SVP

does not violate due process." (Ibid.)

As to the summary denial of a frivolous petition under section 6608, the Supreme

Court stated in McKee: "A frivolous petition is one that 'indisputably has no merit.' (In re

Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [defining frivolous appeals].) . . . The

fact that the statute gives the court the authority to deny such petitions does not, of itself,

serve as an obstacle to the primary due process goal of ensuring that only those

individuals who continue to meet SVP criteria will remain involuntarily committed."

(McKee, supra, 47 Cal.4th at p. 1192, fn. omitted.) It recognized that SVP committees

are not precluded "from challenging an erroneous judicial determination that a petition is

frivolous. [Citation.]" (Id. at p. 1192, fn. 6.)

In McKee, the court recognized that "expert testimony is critical in an SVP

commitment proceeding . . . ." (Id. at p. 1192.) It determined: "Given that the denial of

access to expert opinion when an indigent individual petitions on his or her own to be

released may pose a significant obstacle to ensuring that only those meeting SVP

commitment criteria remain committed, we construe section 6608, subdivision (a), read

in conjunction with section 6605, subdivision (a), to mandate appointment of an expert

for an indigent SVP who petitions the court for release." (Id. at p. 1193.)

The Supreme Court observed: "After Proposition 83, it is still the case that an

individual may not be held in civil commitment when he or she no longer meets the

requisites of such commitment. An SVP may be held, as the United States Supreme

Court stated under similar circumstances, 'as long as he is both mentally ill and

dangerous, but no longer.' (Foucha v. Louisiana (1992) 504 U.S. 71, 77 [ . . . 112 S.Ct.

1780].)" (Id. at p. 1193.) It held that the amended SVPA, as construed, "does not violate

7

the due process clause." (Ibid.) This court is bound by the Supreme Court's holding.

(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

2. Equal Protection

a. Contentions on Appeal

Appellant Rotroff argues that his indeterminate commitment as an SVP with

limited judicial review of his commitment violates the equal protection clause of the

Fourteenth Amendment because he is being treated more harshly than similarly situated

mentally disordered offenders (MDO's) (see Pen. Code, § 2960 et seq ) and persons

found not guilty of a crime by reasons of insanity (see Pen. Code, §§ 1026, 1026.2,

1026.5). He compares the indeterminate term of commitment under the SVPA to the

one-year commitment term for MDO's. (See Pen. Code, § 2972, subd. (c); see also Pen.

Code, § 2970.) He points out that insanity acquittees have a right under Penal Code

section 1026.2 to be heard on an application for release after 180 days of confinement.4

By way of comparison, SVP committees cannot bring a petition for conditional release or

unconditional discharge under section 6608 until at least one year from the date of the

4

Penal Code section 1026.2, subdivision (a), provides in part: "An application for

the release of a person who has been committed to a state hospital or other treatment

facility, as provided in Section 1026, upon the ground that sanity has been restored, may

be made to the superior court of the county from which the commitment was made, either

by the person, or by the medical director of the state hospital or other treatment facility to

which the person is committed or by the community program director where the person is

on outpatient status under Title 15 (commencing with Section 1600)." Penal Code

section 1026.2, subdivision (d), states: "(d) No hearing upon the application shall be

allowed until the person committed has been confined or placed on outpatient status for a

period of not less than 180 days from the date of the order of commitment." In People v.

Soiu (2003) 106 Cal.App.4th 1191, which is cited by appellant, an appellate court held, as

a matter of statutory interpretation, that a trial court cannot summarily deny a Penal Code

section 1026.2 release request without holding an outpatient placement hearing. (Id. at

p. 1197.)

8

commitment order. (§ 6608, subd. (c).) Such a petition may be denied without a hearing

if it is frivolous. (§ 6608, subd. (a).)

Appellant Rotroff maintains that the disparate treatment of SVP's "violates the

equal protection guarantees of the Fourteenth Amendment because it is not justified by a

compelling state interest." He does not argue that there is a compelling state interest at

stake but the state could have used less onerous means of accomplishing its objectives.

b. McKee and McKee II

In McKee, the California Supreme Court recognized that persons civilly

committed as MDO's or persons whose commitments are extended after being found not

guilty by reason of insanity (NGI's) are subject to short, definite terms of commitment

whereas persons found to be SVP's are committed to an indeterminate term of

commitment. (People v. McKee, supra, 47 Cal.4th at pp. 1202, 1207.) It concluded that

SVP's were similarly situated to these other groups of committees. (Id. at pp. 1204,

1207.) The court found "no question that, after the initial commitment, an SVP is

afforded different and less favorable procedural protections than an MDO." (Id. at p.

1202.) It found merit in the contention that NGI's and SVP's are similarly situated for

purposes of equal protection. (Id. at p. 1207.) The court declared that where groups are

similarly situated and "the state makes the terms of commitment or recommitment

substantially less favorable for one group than the other, . . . it is required to give some

justification for this differential treatment." (Id. at p. 1203.)

The Supreme Court explained: "When a constitutional right, such as the right to

liberty from involuntary confinement, is at stake, the usual judicial deference to

legislative findings gives way to an exercise of independent judgment of the facts to

ascertain whether the legislative body ' "has drawn reasonable inferences based on

substantial evidence." ' [Citations.] . . . Therefore, the legislative findings recited in the

9

ballot initiative do not by themselves justify the differential treatment of SVP's." (Id. at

pp. 1206-1207, italics added.)

The Supreme Court then concluded in McKee that "neither the People nor the

courts below properly understood" the People's burden of justifying the differential

treatment of SVP's and the People should be given the opportunity to meet that burden.

(Id. at pp. 1207-1208.) The court remanded the matter to the trial court "to determine

whether the People, applying the equal protection principles articulated in [In re Moye

(1978) 22 Cal.3d 457] and related cases discussed in [its] opinion, can demonstrate the

constitutional justification for imposing on SVP's a greater burden than is imposed on

MDO's and NGI's in order to obtain release from commitment."5 (Id. at pp. 1208-1209,

fn. omitted.) It stated: "On remand, the government will have an opportunity to justify

Proposition 83's indefinite commitment provisions, at least as applied to McKee, and

demonstrate that they are based on a reasonable perception of the unique dangers that

SVP's pose rather than a special stigma that SVP's may bear in the eyes of California's

5

In In re Moye (1978) 22 Cal.3d 457, an equal protection claim required the

California Supreme Court to compare the class of persons confined as mentally

disordered sex offenders (MDSO's) with the class of persons who have been confined

after being acquitted of a criminal offense by reason of insanity (NGI's). (Id. at pp. 463-

465.) Both groups were confined for treatment "in lieu of criminal punishment" (id. at p.

463) but the duration of their commitments were different. (Id. at pp. 464-465.) The

court stated: "Because petitioner's personal liberty is at stake, the People concede that the

applicable standard for measuring the validity of the statutory scheme now before us

requires application of the strict scrutiny standard of equal protection analysis.

Accordingly, the state must establish both that it has a 'compelling interest' which

justifies the challenged procedure and that the distinctions drawn by the procedure are

necessary to further that interest. [Citation.]" (Id. at p. 465.) It held, based on equal

protection principles, that "persons committed to a state institution following acquittal of

a criminal offense on the ground of their insanity cannot be retained in institutional

confinement beyond the maximum term of punishment for the underlying offense of

which, but for their insanity, they would have been convicted." (Id. at p. 467.)

10

electorate." (Id. at p. 1210, fn. omitted.) The trial court must "determine not whether the

statute is wise, but whether it is constitutional." (Id. at p. 1211, fn. omitted.)

On remand, "[f]ollowing a 21–day evidentiary hearing, the trial court concluded

the People met their burden to justify the disparate treatment of SVP's under the

standards set forth in McKee." (McKee II, supra, 207 Cal.App.4th at p. 1330.) On appeal

to the Fourth District, Division One, McKee contended that "the trial court erred by

finding the People met that burden." (Ibid.) The appellate court concluded "the trial

court correctly found the People presented substantial evidence to support a reasonable

perception by the electorate that SVP's present a substantially greater danger to society

than do MDO's or NGI's, and therefore the disparate treatment of SVP's under the Act is

necessary to further the People's compelling interests of public safety and humane

treatment of the mentally disordered." (Id. at pp. 1330-1331.)

Appellant Rotroff contends that McKee II does not properly resolve his equal

protection claims because the appellate court (1) failed to conduct a proper de novo

review and (2) misapplied the strict scrutiny test. He urges this court to reject the

conclusions of McKee II.

McKee II clearly stated that it was conducting a de novo review: "McKee asserts,

and we agree, that we review de novo the trial court's determination whether the Act, as

amended by Proposition 83, violates his equal protection rights. We independently

determine whether the People presented substantial, factual evidence to support a

reasonable perception that SVP's pose a unique and/or greater danger to society than do

MDO's and NGI's, thereby justifying the disparate treatment of SVP's under the Act.

Although the trial court heard the testimony of many witnesses and received in evidence

many exhibits, the instant constitutional question involved mixed questions of law and

fact that are predominantly legal, if not purely legal questions, which are subject to de

novo review. [Citations.] Furthermore, because in this case the trial court presumably

11

did not decide any disputed historical facts, but determined only whether the People

presented sufficient evidence to support a reasonable perception that SVP's pose a greater

danger to society, we are in as good a position as the trial court to make that

determination. Therefore, we apply an independent standard in reviewing the trial court's

order rejecting McKee's equal protection claim." (McKee II, supra, 207 Cal.App.4th at p.

1338.)

Appellant claims that, although the appellate court in McKee II stated it was

conducting a de novo review, it failed to do so. He asserts that the appellate court erred

by determining "whether the People presented substantial evidence to support a

reasonable inference or perception that the Act's disparate treatment of SVP's is necessary

to further compelling state interests. [Citations.]" (207 Cal.App.4th at p. 1339.)

Appellant also claims that although "early in the opinion, the McKee II court took note of

the evidence presented by both sides, its actual analysis concerned only the prosecution's

evidence."

McKee II's description of its review is entirely consistent with an independent, de

novo review of the evidence and the Supreme Court's opinion and directions in McKee.

(See McKee, supra, 47 Cal.4th at pp. 1206-1211.) Our careful review of McKee II does

not demonstrate that the appellate court failed to independently consider all the evidence

presented by the parties, including McKee's evidence. As the Supreme Court in McKee

emphasized, "mere disagreement among experts will not suffice to overturn the

Proposition 83 amendments." (Id. at p. 1210.)

As to the strict scrutiny standard of review, appellant Rotroff asserts that the

appellate court in McKee II misapplied the standard and the evidence did not "show a

compelling state interest that makes it necessary to impose upon SVP's a burden of proof

and a term of commitment different from that which applies to MDO's and NGI's." The

appellate decision does not support these claims.

12

In McKee II, the appellate court examined evidence in three areas: recidivism, the

greater trauma of victims of sexual offenses, and the diagnostic and treatment differences.

(McKee II, supra, 207 Cal.App.4th at pp. 1340-1347.) With respect to recidivism, the

appellate court concluded that the Static–99 evidence supported "by itself, a reasonable

inference or perception that SVP's pose a higher risk of sexual reoffending than do

MDO's or NGI's." (Id. at p. 1342.) That evidence included Department of Mental Health

data "showing a significant difference between the Static–99 scores of SVP's and those of

MDO's/NGI's." (Id. at p. 1341.) "The average Static–99 score for all SVP's civilly

committed since the passage of the amended Act in 2006 [was] 6.19," which "place[d]

SVP's in the 'high' risk category for sexual reoffense." (Ibid.) In contrast, the average

Static–99 score for MDO's at Patton State Hospital subject to sex offender registration

requirements in 2010 was only 3.6, which placed them "in the 'moderate-low' risk

category for sexual reoffense." (Ibid.) The average Static–99 score for all patients

discharged from Atascadero State Hospital since January 1, 2010 and subject to sex

offender registration requirements, a group including MDO's and NGI's, was 4.6, which

placed them "in the 'moderate-high' risk category for sexual reoffense." (Id. at pp. 1341-

1342.)

In McKee II, the appellate court further concluded that there was "substantial

evidence supporting the reasonable perception that the nature of the trauma caused by sex

offenses is generally more intense or severe than the trauma caused by nonsex offenses

and is sometimes unique to sex offenses." (Id. at p. 1343.) It discussed the evidence

supporting its conclusion. (Id. at pp. 1342-1343.)

McKee II also determined that there was "substantial evidence to support a

reasonable perception by the electorate that SVP's have significantly different diagnoses

from those of MDO's and NGI's, and that their respective treatment plans, compliance,

and success rates are likewise significantly different." (Id. at p. 1347.) The distinctions

13

made SVP's more difficult to treat and less likely to participate in treatment. (Ibid.)

SVP's were "less likely to acknowledge there is anything wrong with them, and more

likely to be deceptive and manipulative." (Ibid.)

The evidence discussed in McKee II indicated that "[o]nly 2 percent of MDO's and

NGI's suffer from pedophilia or other paraphilias" whereas "nearly 90 percent of SVP's

are diagnosed with pedophilia or other paraphilias." (McKee II, supra, 207 Cal.App.4th

at p. 1344.) "Dr. David Fennell, a psychiatrist and chief of forensics at Atascadero State

Hospital, testified that about 90 percent of MDO and NGI patients suffer from a

psychotic mental disorder" but "only 1 to 3 percent of SVP's suffer from a psychosis."

(McKee II, supra, 207 Cal.App.4th at p. 1344.)

There was also evidence that "[p]araphilia typically remains stable or constant

throughout a patient's lifetime." (Id. at p. 1345.) "Although there may be an 'aging out'

effect where patients' behavior or acting out on their fantasies is decreased as they age,

that does not mean their urges and fantasies are similarly decreased. Patients with

paraphilia generally have a specific intent in selecting victims (e.g., boys age seven to 10

years) and carefully plan and execute their offenses (e.g., by 'grooming' their victims

before committing the offense). In contrast, patients with severe mental illnesses

generally are not that organized and commit impulsive or opportunistic offenses." (Ibid.)

The appellate court in McKee II reviewed the evidence of significant differences in

the treatment of severely mentally ill patients and patients with paraphilia. "Patients with

severe mental illnesses generally are first treated with psychotropic medications and then

with psychosocial support or intervention (e.g., therapy regarding communication skills,

social skills, and problem solving). Their amenability to and compliance with treatment

usually is very good. Most severely mentally ill patients are compliant with their

medications and participate in treatment most of the time. In comparison, the treatment

plans for patients with paraphilia generally involve psychosocial intervention-like

14

treatment. Medications may decrease their sexual arousal, but not their deviant sexual

interests. Treatment of paraphilia patients takes longer than for other patients because

paraphilia is so pervasive, affecting their thoughts, beliefs, and interactions. . . . Also, a

higher percentage of SVP's (i.e., 10 to 15 percent) have antisocial or borderline

personality disorders (i.e., involving pathological lying and instability, etc.) than do

severely mentally ill patients, making their treatment more difficult. Also, unlike

severely mentally ill patients, 'not very many' SVP's are ready to work and participate in

treatment." (Id. at p. 1346.)

Dr. Fennell also provided testimony regarding the differences between treatment

plans for SVP's and those for MDO's and NGI's. (Id. at p. 1345.) "MDO's, most of

whom are housed at Atascadero, are overwhelmingly treated with psychotropic

medications, resulting in their stabilization and amenability to psychosocial support

treatment. About two-thirds of MDO's and NGI's comply with their treatment programs,

typically resulting in their decertification after about three years." (Id. at pp. 1344-1345.)

In contrast, "SVP's treatment plans are not based on medications, but rather on giving

them the tools to limit their risk of sexually reoffending." (Id. at p. 1345.) "The shortest

time in which an SVP has completed treatment is two and one-half years. Many other

SVP's took up to five years to complete treatment." (Ibid.) But "only about 25 percent of

SVP's participate in treatment." (Ibid.)

McKee II concluded "the People on remand met their burden to present substantial

evidence, including medical and scientific evidence, justifying the amended Act's

disparate treatment of SVP's (e.g., by imposing indeterminate terms of civil commitment

and placing on them the burden to prove they should be released). (McKee, supra, 47

Cal.4th at p. 1207.)" (McKee II, 207 Cal.App.4th at p. 1347.) It held that the SVPA as

amended did not "violate McKee's constitutional equal protection rights." (Id. at p.

15

1348.) Appellant Rotroff has not demonstrated that the appellate court's conclusions

were incorrect.

We briefly address Rotroff's assertion that McKee II erred by not analyzing

whether the state had proved that its disparate treatment of SVP's "constituted the least

restrictive means possible." The appellate court in McKee II was unpersuaded that "the

equal protection clause requires that disparate treatment of similarly situated classes be

not only necessary to further a compelling state interest, but also accomplished through

the least restrictive means available." (McKee II, supra, 207 Cal.App.4th at pp. 1348-

1349.) It did not believe that "the electorate that passed Proposition 83 in 2006 was

required to adopt the least restrictive means available (e.g., a two-year or other

determinate term of civil commitment) in disparately treating SVP's and furthering the

compelling state interests of public safety and humane treatment of the mentally

disordered." (Id. at p. 1349.)

While we agree that the availability of equally efficacious but less burdensome

means of accomplishing a compelling state interest is a consideration in strict scrutiny

analysis,6 the appellate court clearly understood that the strict scrutiny test required the

6

See e.g. Zablocki v. Redhail (1978) 434 U.S. 374, 388 [98 S.Ct. 673] ["When a

statutory classification significantly interferes with the exercise of a fundamental right, it

cannot be upheld unless it is supported by sufficiently important state interests and is

closely tailored to effectuate only those interests. [Citations.]"], 389 [statute precluding

state resident with judicially imposed child support obligations from marrying without

court permission held unconstitutional where "the State already ha[d] numerous other

means for exacting compliance with support obligations, means that are at least as

effective as the instant statute's and yet do not impinge upon the right to marry"]; Dunn v.

Blumstein (1972) 405 U.S. 330, 342 [92 S.Ct. 995] ["durational residence laws [for

voting] must be measured by a strict equal protection test: they are unconstitutional

unless the State can demonstrate that such laws are 'necessary to promote a compelling

governmental interest.' [Citations.]"], 343 ["It is not sufficient for the State to show that

durational residence requirements further a very substantial state interest. In pursuing

that important interest, the State cannot choose means that unnecessarily burden or

restrict constitutionally protected activity. Statutes affecting constitutional rights must be

16

government to "show both a compelling state interest justifying the disparate treatment

and that the disparate treatment is necessary to further that compelling state interest.

[Citations.]" (Ibid.) Narrow tailoring to serve a compelling state interest does not require

exhaustion of every conceivable alternative. (See Grutter v. Bollinger (2003) 539 U.S.

306, 339 [123 S.Ct. 2325].)

We presently have no indication that some determinate term would equally or as

effectively serve the compelling state interests at stake and appellant Rotroff has not

made any such claim. Given the evidence presented in McKee II that the vast majority of

SVP's are diagnosed with pedophilia or other paraphilias, a paraphilia ordinarily persists

throughout a patient's lifetime, treatment is not focused on medication, and most SVP's

do not participate in treatment (McKee II, supra, 207 Cal.App.4th at pp. 1344-1345), we

have no basis for concluding that an indeterminate term is not necessary to further the

compelling state interest in providing treatment to SVP's and protecting the public or that

there is any less burdensome alternative to effectuate those interests.7 (See Hubbart v.

Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20.)

drawn with 'precision,' [citations], and must be 'tailored' to serve their legitimate

objectives. [Citation.] And if there are other, reasonable ways to achieve those goals

with a lesser burden on constitutionally protected activity, a State may not choose the

way of greater interference. If it acts at all, it must choose 'less drastic means.'

[Citation.].]"

7

A determinate term would also be wasteful of limited public resources if most

committees continue to qualify as SVP's and do not participate in treatment. Among the

People's findings that are recited in Proposition 83 is the following: ". . . California

automatically allows for a jury trial every two years irrespective of whether there is any

evidence to suggest or prove that the committed person is no longer a sexually violent

predator. As such, this act allows California to protect the civil rights of those persons

committed as a sexually violent predator while at the same time protect society and the

system from unnecessary or frivolous jury trial actions where there is no competent

evidence to suggest a change in the committed person." (Voter Information Guide, Gen.

Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (k), p. 127; see Historical & Statutory

Notes, 47C West's Ann. Pen.Code (2008) foll. § 209, pp. 52–53.)

17

In light of the Supreme Court's clearly expressed intent to avoid an unnecessary

multiplicity of proceedings, the Supreme Court's denial of review in McKee II, and our

conclusions regarding the asserted flaws in McKee II, we find the equal protection claims

advanced by appellant are without merit and do not require a remand for a further

evidentiary hearing.

3. Ex Post Facto and Double Jeopardy Prohibitions

Appellant contends that his indeterminate commitment under the SVPA is punitive

in purpose or effect and, therefore, violates the federal constitutional prohibitions against

ex post facto laws and double jeopardy. He maintains that consideration of the factors set

forth in Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169 [83 S.Ct. 554]

compels the conclusion that the changes made to the SVPA by Proposition 83 are

punitive in effect.

The double jeopardy clause of "[t]he Fifth Amendment to the United States

Constitution, which applies to the states through the Fourteenth Amendment (Benton v.

Maryland (1969) 395 U.S. 784, 793-796 [89 S.Ct. 2056 . . .]), protects defendants from

repeated prosecution for the same offense [citations], by providing that no person shall

'be subject for the same offense to be twice put in jeopardy of life or limb. . . .' " (People

v. Batts (2003) 30 Cal.4th 660, 678.) It "protects only against the imposition of multiple

criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58

S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also [U. S. ex rel. Marcus v. Hess (1943) 317

U.S. 537,] 548-549, 63 S.Ct., at 386-387 ('Only' 'criminal punishment' 'subject[s] the

defendant to "jeopardy" within the constitutional meaning'); Breed v. Jones, 421 U.S.

519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ('In the constitutional sense,

jeopardy describes the risk that is traditionally associated with a criminal prosecution')

. . . ." (Hudson v. U.S. (1997) 522 U.S. 93, 99 [118 S.Ct. 488].) "The Ex Post Facto

Clause, which ' "forbids the application of any new punitive measure to a crime already

18

consummated," ' has been interpreted to pertain exclusively to penal statutes. [Citation.]''

(Kansas v. Hendricks (1997) 521 U.S. 346, 370 [117 S.Ct. 2072].) A judicial

determination that a law is not punitive "removes an essential prerequisite" for both

double jeopardy and ex post facto claims. (Ibid.)

In McKee, supra, 47 Cal.4th 1172, the Supreme Court concluded: "[T]he

nonpunitive objectives of the Act—treatment for the individual committed and protection

of the public—remain the same after Proposition 83. Moreover, under the Act after

Proposition 83, as before, a person is committed only for as long as he meets the SVP

criteria of mental abnormality and dangerousness. As such, the Proposition 83

amendments at issue here cannot be regarded to have changed the essentially nonpunitive

purpose of the Act." (Id. at p. 1194.)

After considering "the seven-factor test articulated in Kennedy v. Mendoza–

Martinez (1963) 372 U.S. 144, 168-169 . . . 83 S.Ct. 554" (McKee, supra, 47 Cal.4th at

p. 1195), the Supreme Court held that "the Proposition 83 amendments do not make the

Act punitive and accordingly do not violate the ex post facto clause." (Ibid.) This court

is governed by the Supreme Court's holding. (Auto Equity Sales, Inc. v. Superior Court,

supra, 57 Cal.2d at p. 455.) Its determination is also dispositive of appellant Rotroff's

double jeopardy claim.

C. First Amendment Right of Petition

Appellant claims that the SVPA violates his right under the first amendment to the

U.S. Constitution to petition the government for redress of grievances because the act as

amended limits his access to the courts and does not provide "a reasonably adequate

opportunity to present claimed violations of fundamental constitutional rights to the

courts." He points to section 6605, subdivision (b), which requires administrative

authorization before an SVP committee may petition for conditional release or

19

unconditional discharge under that provision. He maintains that this statutory limitation

is "analogous to the regulation in Ex Parte Hull," which was held unconstitutional.

Section 6605's administrative authorization requirement is not equivalent to the

administrative regulation held unconstitutional in Ex Parte Hull (1941) 312 U.S. 546 [61

S.Ct. 640]. The petitioner in Ex parte Hull was a state prisoner. A prison official had

refused to notarize Hull's petition for writ of habeas corpus and accept it for mailing and

prison guards had confiscated the petition after Hull had delivered the papers to his father

for mailing outside the prison. (Id. at pp. 547-548.) Hull was eventually able to pass a

document to the Supreme Court through his father. (Id. at p. 548.) In response to the

Supreme Court's order to show cause why leave to file a petition for writ of habeas

corpus should not be granted, the state prison warden invoked a regulation that provided:

" 'All legal documents, briefs, petitions, motions, habeas corpus proceedings and appeals

will first have to be submitted to the institutional welfare office and if favorably acted

upon be then referred to Perry A. Maynard, legal investigator to the Parole Board,

Lansing, Michigan. Documents submitted to Perry A[.] Maynard, if in his opinion are

properly drawn, will be directed to the court designated or will be referred back to the

inmate.' " (Id. at pp. 548-549.)

The Supreme Court in Hull held that the prison regulation was invalid because

"the state and its officers may not abridge or impair petitioner's right to apply to a federal

court for a writ of habeas corpus." (Id. at p. 549.) The court stated: "Whether a petition

for 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. [Citations.]"

(Ibid.) In the present case, no administrative regulation limits a committed person's right

to apply for habeas corpus relief in federal or state court. (See § 7250 [any person who

has been committed to a state hospital for the mentally disordered is entitled to a writ of

habeas corpus upon proper application].)

20

Appellant has provided no authority to suggest that the constitutional right to

petition government restricts the power to legislate. The scope of any statutory right to

petition under section 6605 or section 6608 is delineated by the legislating body.

We also observe that, although the statutory right to petition under section 6605,

subdivision (b), is conditional, section 6608, subdivision (a), provides a right to petition

that is not dependent upon administrative authorization. Appellant Rotroff maintains that

the right to petition under section 6608 does not offer "meaningful access to the courts"

because it does not provide for appointment of a medical expert that a petitioner would

need to prove the petition. This claim has been completely eliminated by McKee's

interpretation of section 6608 as including the right to "appointment of an expert for an

indigent SVP who petitions the court for release." (McKee, supra, 47 Cal.4th at p. 1193.)

Appellant Rotroff also complains that section 6608, subdivision (a), permits courts

to summarily deny frivolous petitions filed under that section. He has cited no authority

for the proposition that the constitutional right to petition forces courts to hear and decide

frivolous petitions.

The Supreme Court held in Bounds v. Smith (1977) 430 U.S. 817, 828 [97 S.Ct.

1491] that "the fundamental constitutional right 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." (Lewis v. Casey (1996) 518 U.S. 343, 354 [116 S.Ct. 2174].) "The

right that Bounds acknowledged was the (already well-established) right of access to the

courts. E.g., Bounds, 430 U.S., at 817, 821, 828, 97 S.Ct., at 1492-1493, 1494, 1498. In

the cases to which Bounds traced its roots, [the Supreme Court] had protected that right

by prohibiting state prison officials from actively interfering with inmates' attempts to

prepare legal documents, e.g., Johnson v. Avery, 393 U.S. 483, 484, 489-490, 89 S.Ct.

21

747, 748, 750-751, 21 L.Ed.2d 718 (1969), or file them, e.g., Ex parte Hull, 312 U.S.

546, 547-549, 61 S.Ct. 640, 640-642, 85 L.Ed. 1034 (1941) . . . ." (Id. at p. 350.)

In his concurring opinion in Bounds, Justice Powell stated: "The decision today

recognizes that a prison inmate has a constitutional right of access to the courts to assert

such procedural and substantive rights as may be available to him under state and federal

law. It does not purport to pass on the kinds of claims that the Constitution requires state

or federal courts to hear." (Bounds v. Smith, supra, 430 U.S. at p. 833.)

In Lewis v. Casey, supra, 518 U.S. 343, the U.S. Supreme Court indicated that an

actual injury was a "constitutional perquisite" for claiming a violation of the right to court

access (id. at pp. 351-352) and an inmate was required to "demonstrate that a

nonfrivolous legal claim had been frustrated or was being impeded" (id. at p. 353, fns.

omitted). The court noted that "[d]epriving someone of a frivolous claim . . . deprives

him of nothing at all." (Id. at p. 353, fn. 3.)

In Christopher v. Harbury (2002) 536 U.S. 403 [122 S.Ct. 2179], a widow brought

a complaint alleging that official deception concerning her late husband, who had been

held and tortured in another country, had denied her "access to the courts by leaving her

without information, or reason to seek information, with which she could have brought a

lawsuit that might have saved her husband's life." (Id. at p. 405.) The U.S. Supreme

Court stated its court access cases "rest on the recognition that the right [to court access]

is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury

by being shut out of court." (Id. at p. 415.) It then said: "We indicated as much in our

most recent case on denial of access, Lewis v. Casey, supra, where we noted that even in

forward-looking prisoner class actions to remove roadblocks to future litigation, the

named plaintiff must identify a 'nonfrivolous,' 'arguable' underlying claim [citation] and

we have been given no reason to treat backward-looking access claims any differently in

this respect." (Ibid.)

22

In the different context of defamation, the U.S. Supreme Court has considered

"whether the Petition Clause of the First Amendment provides absolute immunity to a

defendant charged with expressing libelous and damaging falsehoods in letters to the

President of the United States." (McDonald v. Smith (1985) 472 U.S. 479, 480 [105 S.Ct.

2787].) In determining that the petition clause did not provide absolute immunity from

damages for libel, the Supreme Court observed that its "decisions interpreting the Petition

Clause in contexts other than defamation" did not "indicate that the right to petition is

absolute." (Id. at p. 484.) It noted, "[f]or example, filing a complaint in court is a form

of petitioning activity; but 'baseless litigation is not immunized by the First Amendment

right to petition.' Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct.

2161, 2170, 76 L.Ed.2d 277 (1983); accord, California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972)." (Ibid.)

The SVPA as amended by Proposition 83 does not deny appellant the right of

meaningful access to the courts.

23

DISPOSITION

The order of commitment filed October 22, 2008 is affirmed.

_______________________________

ELIA, J.

WE CONCUR:

___________________________

RUSHING, P. J.

___________________________

PREMO, J.

24