Bourquez v. Superior Court

• Decision Date: 14 November 2007
• Docket Number: No. C055402.,C055402.
• Citation: 68 Cal.Rptr.3d 142,156 Cal.App.4th 1275
• Court: California Court of Appeals Court of Appeals
• Parties: Jess BOURQUEZ et al, Petitioners, v. The SUPERIOR COURT of Sacramento County, Respondent, The People, Reul Party in Interest.

68 Cal.Rptr.3d 142

156 Cal.App.4th 1275

Jess BOURQUEZ et al, Petitioners, v. The SUPERIOR COURT of Sacramento County, Respondent The People, Reul Party in Interest.

No. C055402.

Court of Appeal, Third District.

November 14, 2007.

Saria & Saria, Robert J. Saria and Sarah Namnama Saria, Sacramento, for Petitioners.

No appearance for Respondent.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Jane N. Kirkland and Julie A. Hokans, Deputy Attorneys General, for Real Party in Interest.

MORRISON, J.

Petitioners are a number of individuals who have been subjected to involuntary two-year commitments pursuant to the Sexually Violent Predator Act (SVPA; Welf. & Inst.Code, § 6600 et seq.) and had petitions to extend their commitments pending when SE; 1128 was passed and when Proposition 83 was passed in the November 2006 general election. They seek a writ of mandate or prohibition directing the Sacramento County Superior Court to vacate its order finding the court has jurisdiction to proceed on petitions to extend their commitments. Petitioners contend the court has no jurisdiction because SB 1128 and then Proposition 83 amended the SVPA to delete all provisions for proceedings to extend commitments. Absent statutory authority to extend their commitments, petitioners contend they must be released.

We deny the writ. Where the government's authority to act rests solely on a statutory basis, the repeal of the statute without a saving clause will terminate all pending actions. A saving clause may be express or implied. By changing the terms of commitment under the SVPA from two-year terms to indefinite terms, the Legislature and then the voters demonstrated an intent to keep those found to be sexually violent predators (SVPs) committed until they no longer meet the definition of an SVP. From the very purpose of the amendment of the SVPA, a saving clause is implied. Under the implied saving clause, the superior court has jurisdiction to proceed on the petitions to extend petitioners' commitments. Under the provisions of the SVPA, as amended by SB 1128 and by Proposition 83, the petitions to extend commitment are petitions for indefinite commitment.¹

BACKGROUND

Under the SVPA, until it was amended in 2006, a person determined to be an SVP was committed to the custody of the Department of Mental Health for a period of two years and was not kept in actual custody for longer than two years unless a new petition to extend the commitment was filed. (Former Welf. & Inst.Code, § 6604; Stats.1995, ch. 763, § 3, p. 5925.) Former Welfare and Institutions Code section 6604.1 provided when the initial two-year term of commitment and subsequent terms of extended commitment began. (Stats. 1998, ch. 19, § 5.)

On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 (SB 1128). (Stats.2006, ch. 337.) SB 1128 was urgency legislation that went into effect immediately. (Id., § 62.) Among other things, it amended provisions of the SVPA to provide the initial commitment set forth in Welfare and Institutions Code section 6604 was for an indeterminate term. (Id., § 55.) All references to an extended commitment in sections 6604 and 6604.1 of the Welfare and Institutions Code were deleted. (Id., §§ 55 & 56.)

A final analysis of SB 1128 noted, "Major changes to the SVP program will eventually result in increased annual costs in the tens of millions of dollars from increasing the number of SVP referrals, hearings, and commitments, and increasing the length of commitments." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of SB 1128 (2005-2006 Reg. Sess.) as amended Aug. 22, 2006, par. 6.) An argument in support of SB 1128 asserted, "By taking this comprehensive approach SB 1128 will make all of California's communities safer from all sexual predators, not just some." (Id. at par. 7.)

At the November 7, 2006 general election, the voters approved Proposition 83, an initiative measure. (Deering's Ann. Welf. & Inst.Code (2007 supp.) appen. foll. § 6604, p. 43.) Proposition 83 was known as "The Sexual Predator Punishment and Control Act: Jessica's Law." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.) Among other things, Proposition 83 "requires that SVPs be committed by the court to a state mental hospital for an undetermined period of time rather than the renewable two-year commitment provided for under existing law." (Id., analysis by the Legislative Analyst, p. 44.)

Proposition 83 amended Welfare and Institutions Code section 6604 in the same manner as SB 1128, changing the term of commitment to an indeterminate term and deleting all references to extended commitments in that section. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 137.) Welfare and Institutions Code section 6604 now provides in part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for 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."

Proposition 83 did not amend Welfare and Institutions Code section 6604.1 in exactly the same manner as SB 1128,² but retained a reference to extended commitments. Welfare and Institutions Code section 6604.1 now reads as follows:

"(a) The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section.

"(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."

In Proposition 13, the People find and declare: "California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. 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." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127.)

The intent clause of Proposition 83 reads: "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 a greater penalty or longer period of imprisonment the latter provision shall apply." (Text of Prop. 83, supra, at p. 138.)

Prior to the passage of SB 1128, petitioners' two-year commitments as SVPs had expired and petitions to extend their commitments were pending. These petitions were still pending when Proposition 83 was passed. The People notified petitioners of the intent to apply Proposition 83 to the pending petitions. On its own motion, the court raised the issue of whether it had jurisdiction to proceed on the petitions to extend commitment after the enactment of SB 1128 and the passage of Proposition 83. The court requested briefing on two issues:

"(1) In light of the statutory changes to Welf. & Inst.Code § 6600 et seq. in 2006 Stats., ch. 337 and Proposition 83, neither of which contains a savings clause, and Baker v. Superior Court (1984) 35 Cal.3d 663, 200 Cal.Rptr. 293, 677 P.2d 219, does the court currently have jurisdiction over the SVP extension proceeding that has been pending before this court in this case?

"(2) If the court does have jurisdiction, is the defendant now subject to an extension period of two years or of an indeterminate life term?"

The court consolidated several cases for the limited purpose of determining these issues.

The court ruled that it had jurisdiction and the petitions for extended commitment would be considered as petitions for an indeterminate term.

Petitioners sought a writ of mandate or prohibition directing the superior court to vacate its order finding jurisdiction and to enter a new order dismissing the petitions for commitment for lack of jurisdiction. Alternatively, petitioners sought a writ of mandate or prohibition directing the superior court to vacate its order that petitioners were subject to the amendments to the SVPA created by the passage of Proposition 83.

This court issued an alternative writ, directing the superior court to grant the requested relief or show cause why it should not be granted.

DISCUSSION

I

Petitioners contend that since the provisions for extended commitments under the SVPA were deleted by Proposition 83 (and before then by SB 1128), and since there is currently no statutory authority for petitions to extend commitment, the petitions pending to extend their commitments should be dismissed. Further, since the SVPA authorizes a petition to commit only for those in custody of the Department of Corrections (Welf. & Inst. Code, § 6601, subd. (a)), and since they are no longer in the custody of the Department of Corrections, having previously been committed to the custody of the Department of Mental...