Garcetti v. Superior Court

• Decision Date: 10 October 1996
• Docket Number: No. B103020,B103020
• Citation: 49 Cal.App.4th 1533,57 Cal.Rptr.2d 420
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 49 Cal.App.4th 1533 49 Cal.App.4th 1533, 96 Cal. Daily Op. Serv. 7588, 96 Daily Journal D.A.R. 12,442 Gil GARCETTI, as District Attorney, etc., Petitioner, v. The SUPERIOR COURT for the County of Los Angeles, Respondent; Kenneth Kasten RASMUSON et al., Real Parties in Interest.

Page 420

57 Cal.Rptr.2d 420

Previously published at 49 Cal.App.4th 1533

49 Cal.App.4th 1533, 96 Cal. Daily Op. Serv. 7588,

96 Daily Journal D.A.R. 12,442

Gil GARCETTI, as District Attorney, etc., Petitioner, v. The SUPERIOR COURT for the County of Los Angeles, Respondent Kenneth Kasten RASMUSON et al., Real Parties in Interest.

No. B103020.

Court of Appeal, Second District, Division 2, California.

Oct. 10, 1996.

Review Granted Feb. 5, 1997.

Gil Garcetti, District Attorney, George M. Palmer, Head Deputy District Attorney, and Brent Riggs, Deputy District Attorney, for Petitioner.

No appearance for Respondent.

Michael P. Judge, Public Defender, Albert J. Menaster, Melvin Higashi, David Yamada, Nancy Ramseyer, John J. Vacca and Jack T. Weedin, Deputy Public Defenders, for Real Parties in Interest.

ZEBROWSKI, Associate Justice.

I. INTRODUCTION AND SUMMARY

This case presents an attack on the constitutionality of the Sexually Violent Predators Act ("SVP Act"). (Welf. & Inst.Code, § 6600 et seq.) The issue is whether the ex post facto clause renders the SVP Act unenforceable in the case of any sex offender whose sexual assaults predate the Act's effective date.

The SVP Act mandates psychological and psychiatric evaluation of specified convicted sex offenders before release at the end of their penal terms. If a sex offender is diagnosed with a current mental disorder that predisposes him to commit further violent sex crimes, a civil petition may be filed seeking to have him institutionalized for treatment. If proven beyond a reasonable doubt to a jury that the sex offender is a danger to others because he has a continuing mental disorder which makes it likely that he will commit future violent sex crimes if released without treatment, the sex offender may be committed for treatment in a mental health facility. Treatment may last as long as the mental disorder continues, but in no event longer than two years unless a further commitment petition is successfully pursued. ¹

The instant writ proceeding concerns civil commitment petitions filed against 15 individual sex offenders. The ex post facto issue presented on this writ petition is identical in all 15 cases, and we therefore consider them all together. The lead case concerns one Rasmuson, who was twice convicted of sexually molesting young boys he encountered in public places. In 1981, he was convicted of forced oral copulation, sodomy and a lewd act on an 11-year old. In 1987, he was convicted of a lewd act on a 3-year old.

Each sex offender demurred to the petition concerning him, raising the ex post facto issue among others. On the basis of the pleadings, the statutory language and the legislative history, the trial court summarily opined that the SVP Act's provisions for diagnosis and treatment are "essentially and predominantly penal in nature." The trial court concluded that the ex post facto clause renders the SVP Act unenforceable as to all sex offenders whose crimes preceded enactment of the SVP Act, regardless of the particular circumstances, mental condition, level of dangerousness, etc., of any particular sex offender. The trial court sustained the demurrers without leave to amend and ordered Rasmuson and the other sex offenders released. We issued a stay precluding release pending determination of this writ petition.

The trial court's ruling was made on demurrer, and without benefit of evidentiary facts. ² The ruling is therefore effectively a ruling that the SVP Act is facially unconstitutional as to all offenders whose crimes preceded enactment of the SVP Act (rather than unconstitutional only as applied to particular facts or to particular mental conditions.) To declare a statute unconstitutional without regard to particular facts, a court generally must find that the statute cannot in any instance be applied in a constitutional manner. To declare a statute wholly unconstitutional as to an entire group, a court generally must find that the statute cannot in any instance be applied in a constitutional manner to any member of that group.

The ex post facto clause prohibits added punishment for previous crime. The clause does not, however, prohibit civil commitment for treatment of current mental disorder. In ruling that the SVP Act is wholly unconstitutional as violative of the ex post facto clause in all cases of prior sex crime, the trial court necessarily found that the authorized commitments could never constitute anything other than prohibited additional punishment. The trial court necessarily found that such commitments could in no case constitute permissible civil commitment for treatment and public protection on the basis of a present mental disorder.

Such findings could not be made without factual information. Whether the commitments authorized by the SVP Act could possibly be used to require treatment for a current mental disorder, or whether all such commitments could only invariably be a subterfuge for added punishment, is not a question which can be answered as a matter of law on demurrer. To answer such questions, it is necessary to determine whether the psychological and psychiatric sciences are capable of diagnosing current mental disorders, whether the commitments authorized by the SVP Act can be and are based upon the existence of such disorders, etc.

The trial court implicitly answered all such factual questions adversely to the constitutionality of the statute as if these questions of psychological and psychiatric science were questions of law that could be answered on demurrer. The capabilities of the psychological and psychiatric sciences, however, are not and could never be defined or limited by law. Nor could the actual usages of these sciences be determined on demurrer. These are instead matters of fact or evidentiary conclusion to be established by evidence including, where necessary, expert opinion. Questions regarding the validity of diagnostic techniques or the veracity of a stated diagnostic basis for an institutionalization cannot be answered as a matter of law on demurrer.

We will therefore order issuance of a writ directing the trial court to vacate the orders sustaining the ex post facto demurrers to the petitions and instead to overrule those demurrers, to vacate the order for release of the sex offenders and instead to direct their interim detention in accordance with the relevant provisions of the SVP Act pending further proceedings, and to conduct the further proceedings specified in the SVP Act in a manner not inconsistent with this opinion.

II. DISCUSSION

A. The State and Federal Ex Post Facto Clauses are Interpreted Identically; State Law Governs Demurrer Procedure.

The ex post facto clause of the California Constitution (Cal. Const., art. I, § 9) is interpreted identically with the ex post facto clause of the United States Constitution (U.S. Const., art. I, § 10, cl.1). (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295-296, 279 Cal.Rptr. 592, 807 P.2d 434 (Tapia ).) In reviewing the trial court's ruling, therefore, we look interchangeably to state and federal law regarding the ex post facto clause (unless a state decision conflicts with those of the United States Supreme Court). (Tapia, supra, 53 Cal.3d 282, 297, 279 Cal.Rptr. 592, 807 P.2d 434.) State law controls proper demurrer procedure.

B. The Fundamental Rule of Constitutional Statutory Construction

The fundamental rule of constitutional statutory construction is that "[a] legislative act is presumed to be constitutional. Unconstitutionality must be clearly shown, and doubts will be resolved in favor of its validity.... [p] Thus, the speculative possibility of discriminatory or other invalid administration of a statute is not a ground for holding it void." (7 Witkin, Summary of Cal. Law (9th ed. 1988) § 58, pp. 102-103.) "All presumptions favor the constitutionality of a statute enacted by the Legislature; all doubts are resolved in favor of and not against the validity of the statute. Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable." (Varanelli v. Structural Pest Control Board (1969) 1 Cal.App.3d 217, 220, 81 Cal.Rptr. 492; Horeczko v. State Bd. of Registration (1991) 232 Cal.App.3d 1352, 1358, 284 Cal.Rptr. 149; see also Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252, 48 Cal.Rptr.2d 12, 906 P.2d 1112 [all doubts resolved in favor of constitutionality; statutes are upheld unless unconstitutionality is clear and unquestionable].)

"[T]he presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions in mind. [Citations.] In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. Although the ultimate constitutional interpretation must rest, of course, with the judiciary [citation], a focused legislative judgment on the question enjoys significant weight and deference by the courts." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 180, 172 Cal.Rptr. 487, 624 P.2d 1215 (lead opn. of Tobriner, J.) (Pacific Legal Foundation ).)

C. The Test for Unconstitutionality.

1. Introduction to the generally applicable Salerno/Yazoo test.

A claim that a statute directly conflicts with a constitutional provision and hence is totally invalid in all circumstances is generally termed a "facial" attack on the statute. To be successful, such an attack must show that the statute is invalid in all its potential applications. A claim that a statute is unconstitutional only in certain situations is generally termed an "as applied" attack. To be successful, such an attack must show that the statute is invalid in...