People v. Whaley

• Decision Date: 03 March 2008
• Docket Number: No. H031647.,H031647.
• Citation: 160 Cal.App.4th 779,73 Cal.Rptr.3d 133
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George WHALEY, Defendant and Appellant.

73 Cal.Rptr.3d 133

160 Cal.App.4th 779

The PEOPLE, Plaintiff and Respondent, v. George WHALEY, Defendant and Appellant.

No. H031647.

Court of Appeal, Sixth District.

March 3, 2008.

Jonathan Grossman, Stockton, for Defendant and Appellant.

Dolores A. Carr, District Attorney, James S. Cahan, Deputy District Attorney, for Respondent.

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

Defendant George Whaley appeals from an order retroactively committing him to an "indeterminate term of commitment" (Welf. & Inst.Code, § 6601.4, subd. (a))¹ as a sexually violent predator under the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.). Whaley was first committed to a two-year term on January 28, 1999, and his commitment was extended for additional two-year terms thereafter. In 2007, while a petition to extend Whaley's most recent term of commitment was pending, the People brought a motion to retroactively convert his first commitment on January 28, 1999, from a two-year term of commitment to an indeterminate term, pursuant to amended section 6604.1, subdivision (a), which provides that an indeterminate term begins on the date the court issues the "initial" order of commitment. The trial court agreed with the People's interpretation of section 6604.1, subdivision (a), and ordered Whaley committed to an indeterminate term. The trial court imposed the indeterminate term retroactive to the first order committing Whaley in 1999, and without a trial on the pending petition to extend Whaley's most recent term of commitment.

Whaley contends that the "indeterminate term of commitment" in section 6604.1, subdivision (a) may not be applied retroactively and that the SVPA, as amended, is unconstitutional. He also claims that his trial counsel provided ineffective assistance in opposing the People's motion to commit him to an indeterminate term of commitment. Lastly, he asserts that the petition to extend his commitment that is still pending in the trial court should be dismissed and that he should be released immediately.

For reasons that we will explain, we conclude that an indeterminate term of commitment imposed pursuant to section 6604.1 may not be imposed retroactively. Therefore, we will reverse the order. In view of our reversal of the order, we do not reach the issue of whether amendments to the SVPA that provide for an indeterminate term of commitment (see §§ 6604, 6604.1, subd. (a)) are constitutional. In addition, because Whaley's claim of ineffective assistance is based on his trial counsel's conduct in opposing the motion to commit him to an indeterminate term, our reversal of the resulting order makes it unnecessary to address Whaley's ineffective assistance of counsel claim. We further conclude that the petition pending in the trial court to extend Whaley's commitment should not be dismissed.

II. AMENDMENTS TO SECTIONS 6604 AND 6604.1

The SVPA was amended in 2006 by Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128) and subsequently by Proposition 83 that same year. Because the interpretation of the SVPA amendments is at issue in this case, we first provide an overview of the relevant amendments.

A. The SVPA Prior to the Amendments in 2006

Prior to the changes in the SVPA in 2006, an individual determined to be a sexually violent predator was committed to the custody of the Department of Mental Health for a two-year term pursuant to former section 6604. Commitment beyond that term required the filing of a petition for "extended commitment." (Former § 6604, as amended by Stats.2000, ch. 420, § 3.)² Former section 6604.1, subdivision (a) provided that the two-year term of commitment commenced on the date upon which the "initial order of commitment" was issued under section 6604, and that any "subsequent extended commitments" were for two years and commenced from the date of the termination of the previous commitment. (Former § 6604.1, as amended by Stats.2000, ch. 420, § 4.)³ The procedures applicable to extension proceedings resulted in essentially a new determination of sexually violent predator status every two years. (People v. Munoz (2005) 129 Cal.App.4th 421, 429-430, 28 Cal.Rptr.3d 295.)

B. Senate Bill No. 1128

On September 20, 2006, the Governor signed into law Senate Bill 1128, which amended the SVPA, among other statutes. (See Stats.2006, ch. 337.) Senate Bill 1128 was urgency legislation that went into effect immediately. (Stats.2006, ch. 337, § 62.) As a result of Senate Bill 1128, section 6604 thereafter provided for an indeterminate term of commitment. (Stats.2006, ch. 337, § 55.)⁴ Further, amended section 6604.1, subdivision (a) stated that the indeterminate term of commitment began on the date "the initial order of commitment" was issued by the court. (Stats.2006, ch. 337, § 56.)⁵ The references to two-year commitment terms, subsequent extended commitments, and extended commitments in sections 6604 and 6604.1 were eliminated. (Stats.2006, ch. 337, §§ 55, 56.)

C. Proposition 83

After Senate Bill 1128 went into effect, Proposition 83, an initiative measure, was approved by voters on November 7, 2006. The amendments provided by Proposition 83 took effect the following day on November 8, 2006. (See Cal. Const, art. II, § 10, subd. (a).)

Proposition 83 amended the SVPA as it existed prior to Senate Bill 1128. Proposition 83 did not amend the SVPA in exactly the same manner as Senate Bill 1128. (Compare § 6604.1, subd. (b) with Stats. 2006, ch. 337, § 56 [former § 6604.1, subd. (b) under Senate Bill 1128].) Moreover, Proposition 83 incorporated additional amendments to the SVPA beyond those provided by Senate Bill 1128. (See, e.g., § 6600, subd. (a)(1).)

Regarding the term of commitment, Proposition 83, similar to Senate Bill 1128, amended section 6604 to provide that a sexually violent predator's commitment term is "indeterminate."⁶ Section 6604.1, subdivision (a) states, as did the version in Senate Bill 1128, that the indeterminate term begins on the date upon which "the initial order of commitment" is issued.⁷ The references to a two-year term of commitment, subsequent extended commitment, and extended commitment in section 6604 were eliminated, as were the references to a two-year commitment term and subsequent extended commitments in section 6604.1, subdivision (a). The SVPA still refers to "extended commitments" in section 6604.1, subdivision (b).

For reasons that we will explain, the versions of sections 6604 and 6604.1 applicable in this case are the versions following amendment by Proposition 83.

III. FACTUAL AND PROCEDURAL BACKGROUND

A. SVPA Commitment Proceedings Prior to 2007

In March 1998, the People filed a petition to commit Whaley as a sexually violent predator under the SVPA.⁸ The petition was based on two qualifying convictions—rape and forcible oral copulation. The rape occurred in 1981. Whaley forced a 16-year-old girl to orally copulate him and submit to sexual intercourse. He also placed his penis into her anus. While in jail for the rape, Whaley and an inmate, named Paige, forced another inmate to orally copulate them. After Paige left, Whaley penetrated the victim's anus with his penis.

On January 28, 1999, after a court trial, Whaley was determined to be a sexually violent predator and ordered committed to the custody of the Department of Mental Health for a period of two years.⁹

Whaley's initial commitment was set to expire on January 28, 2001. Thereafter, following subsequent petitions to extend Whaley's commitment, Whaley was recommitted for additional two-year terms from January 28, 2001 to January 28, 2003; January 28, 2003 to January 28, 2005; and January 28, 2005 to January 28, 2007.

B. The 2007 Petition to Extend Commitment

On January 2, 2007, prior to the expiration of Whaley's most recent two-year commitment term, the People filed a petition to extend Whaley's commitment "from January 28, 2007 to the term prescribed by law." In the petition, the People alleged that Whaley "continues to meet the criteria for commitment as a sexually violent predator in that he continues to have a current diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior in the future."

C. The 2007 Motion for an Indeterminate Term

On May 4, 2007, while the petition to extend Whaley's commitment was pending, the People filed a motion seeking to retroactively convert Whaley's first commitment on January 28, 1999, from a two-year term to an indeterminate term. In the motion, the People contended that Whaley's commitment "is now indeterminate by operation of law" due to the passage of Senate Bill 1128 and Proposition 83. The People asserted that amended section 6604.1, subdivision (a), which provides that an indeterminate term begins on the date the court issues the "initial" order of commitment, requires the application of an indeterminate term retroactive to the date an individual is first committed as a sexually violent predator. The People contended this interpretation was supported by the fact that Senate Bill 1128 and Proposition 83 deleted references to "subsequent extended commitments" in sections 6604 and 6604.1, subdivision (a), reflecting an intent by the Legislature and the electorate to apply an indeterminate term retroactively, without the need for a recommitment hearing. The People asserted that the continued reference to "extended commitments" in amended section 6604.1, subdivision (b) pertains to proceedings to release an individual under section 6605, subdivision (f),¹⁰ and "is not related to subsequent recommitment hearings," which had been eliminated by the amendments to the SVPA. The People also contended that the history of Senate Bill 1128 and Proposition 83 supported the retroactive application of an indeterminate term. Lastly, the People contended that retroactive application of an indeterminate term does not violate the ban...