In re Smith

• Decision Date: 24 March 2008
• Docket Number: No. S145959.,S145959.
• Citation: 73 Cal.Rptr.3d 469,42 Cal.4th 1251,178 P.3d 446
• Court: California Supreme Court
• Parties: In re David Woodrow SMITH, on Habeas Corpus.

178 P.3d 446

73 Cal.Rptr.3d 469

In re David Woodrow SMITH, on Habeas Corpus.

No. S145959.

Supreme Court of California.

March 24, 2008.

David Woodrow Smith, in pro. per.

J. Courtney Shevelson, under appointment by the Supreme Court, Carmel, for Petitioner David Woodrow Smith.

Steve Cooley, District Attorney, Lael Rubin, Brentford J. Ferreira, Phyllis C. Asayama and Rebecca Marie Madrid, Deputy District Attorneys, for Respondent State of California.

MORENO, J.

Under the Sexually Violent Predator Act (SVP Act), Welfare and Institutions Code section 6600 et seq., a person can be civilly committed as a sexually violent predator at the conclusion of a felony prison term, provided he or she has prior convictions for certain sexually violent offenses and a jury finds the person has a mental disorder that makes it likely he or she will engage in sexually violent criminal behavior. In the present case, after SVP commitment proceedings were initiated against petitioner, the felony conviction that was the basis of his custody at the time these proceedings were commenced was reversed by this court on appeal. (People v. Smith (2004) 32 Cal.4th 792, 796-799, 11 Cal.Rptr.3d 290, 86 P.3d 348 (Smith).) The prosecutor declined to retry him. The question this case poses is whether an SVP commitment can nonetheless proceed under these circumstances. In answering this question, we must construe language in section 6601, subdivision (a)(2), providing that an SVP petition "shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law."

We conclude that both the People and petitioner make reasonable arguments, based on the language and legislative history of the statute — the former that an SVP commitment is authorized under these circumstances, the latter that it is not. Based on substantial constitutional concerns, however, and the practice of construing statutes where reasonable to avoid difficult constitutional questions, we hold that an SVP commitment would not be authorized in these circumstances, and therefore reverse the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are not in dispute. In 1982, Smith was convicted of four counts of oral copulation on a child under the age of 16 years (Pen.Code, § 288a, subd. (b)(2)) and one count of sodomy of a child under the age of 16 years (Pen.Code, § 286, subd. (b)(2)). In 1988, Smith was convicted of 15 counts of committing lewd and lascivious acts on a child under the age of 14 years (Pen.Code, § 288, subd. (a).). Smith was released on parole in July 1995 and completed parole in July 1998.

As recounted in Smith, Smith was obligated to register as a sex offender because of his prior offenses. (Smith, supra, 32 Cal.4th at p. 795, 11 Cal.Rptr.3d 290, 86 P.3d 348.) In April 1999, Smith moved to Colorado from California; then, nine days later, he moved to New York. He claimed that he sent a change-of-address card to the Long Beach Police Department in a timely manner, but the officer responsible for sex offender registration testified that he did not receive any such card. When Smith did not appear in September 1999 to complete his annual registration, the Long Beach police began searching for him. Smith was arrested in New York. (Ibid.)

Convicted of failing to register as a sex offender (Pen.Code, § 290, former subd. (g)), Smith was sentenced to five years in state prison on October 26, 2000. (Smith, supra, 32 Cal.4th at pp. 796-797, 11 Cal.Rptr.3d 290, 86 P.3d 348.) The Court of Appeal affirmed his conviction on June 18, 2002. Smith petitioned for review of his conviction in this court, and we granted review on September 18, 2002.

While petitioner was awaiting resolution of his appeal in this court, he was referred to the State Department of Mental Health for evaluation as a possible SVP, pursuant to Welfare and Institutions Code section 6601.¹ Two initial psychiatric evaluators disagreed on whether Smith met the SVP criteria, which triggered examination by two additional evaluators, who this time agreed that he did. On December 15, 2003, the Los Angeles County District Attorney filed a petition to have petitioner committed as an SVP. On March 2, 2004, petitioner was released from prison custody to the custody of the Los Angeles County Sheriff's Department on the basis of the pending SVP petition.²

On March 29, 2004, we reversed Smith's conviction. His defense had been that he sent the notification of change of address to the Long Beach police and it had been lost or not received through no fault of his own. We concluded the trial court committed reversible error by instructing a deadlocked jury, in response to a juror question, that a person subject to Penal Code section 290 has the obligation to ensure that notification of a change of address has been received by the police. (Smith, supra, 32 Cal.4th at pp. 796-799, 11 Cal.Rptr.3d 290, 86 P.3d 348.) The district attorney elected not to refile charges against Smith, who was already due to be released on parole by the time his conviction was reversed.

After his conviction was reversed, and before the SVP commitment proceedings progressed any further, petitioner filed a number of habeas corpus petitions challenging the continuation of these proceedings. On July 20, 2005, petitioner filed a habeas corpus petition in the Court of Appeal and that court issued an order to show cause. After briefing, oral argument, and supplemental briefing, the Court of Appeal issued an opinion denying petitioner relief. As elaborated below, the court rejected Smith's argument that the SVP Act did not authorize commitment once his most recent conviction had been reversed, and also rejected his argument that his continued commitment violated his rights to due process and equal protection. We granted Smith's petition for review.

II. DISCUSSION

A. SVP Act

Before addressing the issue in the case, we first review the SVP Act. Under section 6601, subdivision (a)(1) (hereafter section 6601(a)(1)), "an individual who is in custody under the jurisdiction of the Department of Corrections, and who is either serving a determinate prison sentence or whose parole has been revoked," may be determined by the director of the department to be a potential SVP. An SVP was defined at the time of the relevant proceedings to be "a person who has been convicted of a sexually violent offense against two or more victims[³] and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, former subd. (a)(1), as amended, Stats.2000, ch. 643, § 1.) When a potential SVP is identified, "the director shall, at least six months prior to that individual's scheduled date for release from prison, refer the person for evaluation in accordance with this section." (§ 6601(a)(1).) When this occurs, the potential SVP is referred to two mental health evaluators, who must agree that the individual has a diagnosed mental disorder and is likely to engage in acts of sexual violence absent appropriate treatment in custody. (§ 6601, subds. (b), (d), & (i).) A "`[d]iagnosed mental disorder' includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) Once two mental health evaluators agree that the person has a diagnosed mental disorder, and once the director has filed a petition, and the superior court has found probable cause, the individual has the right to counsel and to a jury trial. (§§ 6602, 6603; see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902-903, 119 Cal.Rptr.2d 1, 44 P.3d 949.)

Section 6601, subdivision (a)(2) (hereafter section 6601(a)(2)), provides that "[a] petition may be filed under this section if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to section 6601.3, at the time the petition is filed. A petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law." It is the meaning of the last sentence of this subdivision that is at issue in the present case.

B. Statutory Language

As Smith points out, and as the Court of Appeal acknowledged, the above-quoted subdivision refers to "unlawful custody" and not "unlawful conviction." Smith contends that section 6601(a)(2) refers to situations in which it later is determined that the potential SVP's custody was unlawful at the time the petition was filed because he or she should have been released earlier, and does not refer to situations like that in the present case, in which the conviction that is the basis of the potential SVP's custody at the time the petition is filed has been reversed.

Smith points to legislative findings contained in an uncodified portion of the statute that adopted section 6601(a)(2), which states that "where a petition for commitment of a sexually violent predator has been filed, it is not the intent of the Legislature that a person be released based upon a subsequent judicial or administrative finding that all or part of a determinate prison sentence, parole revocation term, or a hold placed pursuant to section 6601.3, was unlawful." (Stats.1999, ch. 136, § 3.) Smith argues that the Legislature's use of the term "sentence" is an indication that its focus was on the improper length of a sentence, not on a conviction being found unlawful. He contends that the reversal of a conviction is qualitatively different from a finding that a...