Before the 2011 Amendment, Penal Code section 3000 provided that " 'the parole period
of any person found to be a [SVP] shall be tolled until that person is found to no longer
be [an SVP], at which time the period of parole, or any remaining portion thereof, shall
begin to run.' " (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 179 (2011-
2012 Reg. Sess.) July 5, 2011, p. 2.) The amendment was drafted to "close[] a loophole
in the law to ensure that sex offenders serve their court-ordered parole time. It does not
expand or extend parole—it simply corrects the timing of the parole. [¶] Due to an
inconsistency in the law, the parole time for these offenders begins as soon as they are
16
released from prison, and continues while the offender is being assessed in the state
hospital under full security—thus receiving overlapping supervision services. As a
consequence, some offenders run out the clock on their three year court-ordered parole
time and are released into the community with no supervision—contrary to the intent of
the law. [¶] [This bill] would instead require that the parole time occur after the offender
is released from hospital custody." (Ibid.) An argument made in support of the bill noted
that '' '[u]nder current law, the parole period begins to run as soon as the offender is
released from prison. This means that an offender believed to be an SVP can effectively
complete his or her mandated parole period while confined in a state mental hospital
awaiting an often delayed judicial determination of SVP status. As a result, offenders can
be released into community with no supervision upon release from the state mental
hospital.' " (Id. at p. 4.)
Bocklett does not address these concerns. Rather, Bocklett challenges the parole
tolling provision that applies to SVP's, arguing that it does not serve a compelling
governmental interest for SVP's to remain on parole after they have been fully discharged
from their commitment. He maintains that once an SVP has been unconditionally
discharged, the person is no longer an SVP and thus the risks identified in McKee II are
no longer present. We disagree.
The Legislature pointed out that the tolling provision impacts when parole starts; it
does not change the length of time an SVP spends on parole. Before the amendment at
issue, parole started immediately when an individual's prison sentence ended, before the
individual was even determined to be an SVP. Due to the time needed to adjudicate an
17
individual as an SVP, the individual's parole period could expire before the person was
even adjudicated an SVP. Thus, an individual could be released into the community from
SVP commitment with no parole supervision.
The evidence presented in McKee II shows a compelling governmental interest
exists for SVP's to receive parole supervision after they have been fully discharged from
their commitment. The clinical distinctions between SVP's and MDO's "make SVP's
more difficult to treat and more likely to commit additional sexual offenses than []
MDO's." (McKee II, supra, 207 Cal.App.4th at p. 1347.) Critically, an SVP poses a
higher risk of sexual reoffending than does an MDO. (Id. at p. 1342.) Although an SVP
committee who is unconditionally discharged from custody is deemed not "likely" to
reoffend (§ 6600, subd. (a)(1)), this does not mean that the individual poses no risk of
reoffending. The risk of reoffense, " 'to a particularly vulnerable class of victims, such as
children' " (McKee II, at p. 1347), justifies the requirement that a discharged SVP
committee receive parole supervision. (Ibid.) Accordingly, we conclude that the tolling
provision of the Act does not violate Bocklett's constitutional equal protection rights.
B. Alleged Equal Protection Violation Regarding Conditional Release
1. Additional background
a. The MDO Act
Under the MDO Act, a state prisoner may be civilly committed for involuntary
treatment as a condition of parole if statutorily enumerated criteria are met. (Pen. Code,
§§ 2962, 2966.) When MDO treatment is ordered as a condition of parole, the treatment
must be inpatient "unless the [DSH] certifies to the Board of Parole Hearings that there is
18
reasonable cause to believe the parolee can be safely and effectively treated on an
outpatient basis, in which case the Board of Parole Hearings shall permit the [DSH] to
place the parolee in an outpatient treatment program specified by the [DSH]." (Pen.
Code, § 2964, subd. (a).)
If the state wishes to continue the involuntary treatment of an MDO past the
expiration of parole, the state must file a petition in the superior court and prove at a
hearing that the person continues to qualify for involuntary treatment, in which case
treatment will be continued for one year, unless extended again under the same process.
(Pen. Code, §§ 2970, 2972.) Where treatment has been continued, the court "has
authority to release the MDO for outpatient treatment so long as it finds 'there is
reasonable cause to believe that the committed person can be safely and effectively
treated on an outpatient basis.' " (People v. May (2007) 155 Cal.App.4th 350, 359, citing
Pen. Code, § 2972, subd. (d).) The statutory language of "reasonable cause to believe"
requires the patient to "raise a strong suspicion in a person of ordinary prudence that
outpatient treatment would be safe and effective." (People v. Gregerson (2011) 202
Cal.App.4th 306, 319.) This is similar to the "probable cause" standard imposed on the
prosecution at a preliminary hearing. (Id. at pp. 318-319.)
b. The Act
Three routes exist for an SVP to qualify for placement in an outpatient treatment
program. First, the director of DSH (the Director) "shall authorize the person to petition
the court for conditional release to a less restrictive alternative" (§ 6604.9, subd. (d)) if
the DSH determines in its annual report that "conditional release to a less restrictive
19
alternative is in the best interest of the person and conditions can be imposed that
adequately protect the community." (Id. at subds. (d), (a).) Second, after a year of
commitment in a facility designated by the Director, an SVP is permitted to petition the
court for conditional release without the permission of the DSH. (§ 6608, subd. (a), (f).)
If a patient files a petition for conditional release, the patient is required to prove, by a
preponderance of the evidence, his or her suitability for conditional release. (§ 6608,
subd. (k).)
Finally, the Director may forward a report and recommendation for conditional
release under section 6608 when the Director "determines that the person's diagnosed
mental disorder has so changed that the person is not likely to commit acts of predatory
sexual violence while under supervision and treatment in the community." (§ 6607, subd.
(a).) If the Director makes this determination, the Director forwards "a report and
recommendation for conditional release in accordance with Section 6608 to the county
attorney designated in subdivision (i) of Section 6601, the attorney of record for the
person, and the committing court." (§ 6607, subd. (a).) When such a report and
recommendation is filed, the court must "set a hearing in accordance with the procedures
set forth in Section 6608." (§ 6607, subd. (b).)
2. Analysis
Bocklett asserts that the Director is ignoring the duty under section 6607 to
recommend conditional release and that this portion of the Act violates equal protection.
As support for this contention, Bocklett notes that a California Public Records Act
request revealed that from 2006 to the present only 17 people have been recommended
20
for release by the treatment staff to the Director and in each of those cases the Director
failed to recommend release. Bocklett claims that disparate treatment exists because
MDO's are routinely released from custody into conditional release under favorable
terms, but SVP's almost never are released. 2 The People respond that this claim is not
ripe for review. We agree.
"It is well-settled law that the courts will not give their consideration to questions
as to the constitutionality of a statute unless such consideration is necessary to the
determination of a real and vital controversy between the litigants in the particular case
before it. It is incumbent upon a party to an action or proceeding who assails a law
invoked in the course thereof to show that the provisions of the statute thus assailed are
applicable to him and that he is injuriously affected thereby." (People v. Perry (1931)
212 Cal. 186, 193; People v. Williams (1966) 247 Cal.App.2d 169, 170; see People v.
Carroll (2007) 158 Cal.App.4th 503, 508, fn. 2 [declining to issue advisory opinion as to
constitutionality of Act provision that did not apply to decision under review].)
We decline to issue an advisory opinion on the issue whether the Director should
have forwarded a report and recommendation for Bocklett's conditional release in
accordance with section 6608 because Bocklett failed to make a threshold factual
showing that his "diagnosed mental disorder has so changed that [he] is not likely to
2 Bocklett requests that we take judicial notice of the relatively low rate at which the DSH approves persons committed as SVP's for release as support for his argument that there are constitutional flaws in the current version of section 6608. The People oppose the request on the ground that the documents were never presented to the trial court. The request for judicial notice is denied because Bocklett has failed to explain why this new evidence was never offered to the trial court in a motion for new trial. (Estate of Schluttig (1950) 36 Cal.2d 416, 423.)
21
commit acts of predatory sexual violence while under supervision and treatment in the
community" as required by subdivision (a) of section 6607. Because Bocklett is
appealing from his initial SVP commitment order and he has not challenged the
sufficiency of the evidence supporting this commitment, Bocklett cannot make this
showing as a matter of law. Moreover, Bocklett may not raise equal protection claims of
other hypothetically disadvantaged SVP committees as a basis to invalidate the statute's
application to the circumstances of his case. (People v. Garcia (1999) 21 Cal.4th 1, 11-
12 [whether statute had hypothetical potential for equal protection violation "must await a
case in which it is actually presented"].)
Bocklett also asserts that the Act violates equal protection because MDO's are
immediately eligible for conditional release following their commitment, whereas SVP's
must wait a year after commitment to file a petition (§ 6608, subd. (f)), and a new petition
cannot be filed until a year after the prior petition has been denied. (Id. at subd. (j).) We
shall assume, without deciding, that this argument is ripe for review because it is easily
disposed of under McKee I and McKee II. Both decisions considered in their equal
protection analyses the disparate treatment of SVP's resulting from the requirement that
under the Act the SVP be committed for an indeterminate commitment period. (McKee I,
supra, 47 Cal.4th at p. 1203; McKee II, supra, 207 Cal.App.4th at p. 1347.)
Again, the McKee II court found that the People had presented evidence showing
that (1) the inherent nature of the mental disorder of SVP's makes recidivism significantly
more likely as a class than for MDO's (McKee II, supra, 207 Cal.App.4th at p. 1340); (2)
victims of sex offenses suffer unique and generally greater trauma than victims of nonsex
22
offenses (id. at p. 1342); and (3) SVP's are significantly different from MDO's in terms of
diagnosis and treatment (id. at p. 1344). The McKee II court also rejected the defendant's
argument that the Act was unconstitutional unless it adopted the least restrictive means
available to further the state's compelling interests. (McKee II, at pp. 1348-1349.) The
court stated: "We are unpersuaded 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.)
Bocklett's argument that immediately upon his initial commitment he should be
allowed to petition for release, rather than wait a year, is simply a repackaging of the
argument rejected in McKee II that a less restrictive means existed (e.g., a shorter
commitment term, such as immediate release) to further "the compelling state interests of
public safety and humane treatment of the mentally disordered." (McKee II, supra, 207
Cal.App.4th at p. 1349.) Applying the reasoning in McKee II, we conclude that the one-
year waiting period is necessary to further the compelling state interest in providing
treatment to SVP's and protecting the public, and that there is no less burdensome
alternative to effectuate those interests. Accordingly, we conclude that the one-year
waiting periods in the Act do not violate Bocklett's constitutional equal protection
rights. 3
3 Although not entirely clear, Bocklett appears to also claim that SVP's and MDO's are subject to disparate treatment regarding either the burden of proof to obtain
23
D. Alleged Ex Post Facto Violation Regarding Tolling
1. Additional background
As originally enacted effective September 13, 1996, Penal Code section
3000(a)(4) provided: "Any finding made pursuant to [the Act], that a person is a [SVP]
shall not toll, discharge, or otherwise affect that person's period of parole." (Pen. Code,
§ 3000(a)(4), as enacted by Stats. 1996, ch. 462, § 3, eff. Sept. 13, 1996.)
Effective September 20, 2006, the Legislature amended Penal Code section
3000(a)(4) to provide: "For any person being evaluated as [an SVP] pursuant to [the
Act], parole shall toll from evaluation through the period of commitment, including
conditional release under court monitoring, if any. The period during which parole is
tolled shall include the filing of a petition for commitment, hearing on probable cause,
trial proceedings, actual commitment, and any time spent on conditional release under
court monitoring. . . . Time spent on conditional release under the supervision of the
court shall be subtracted from the person's period of parole." (Pen. Code, § 3000(a)(4), as
Effective November 8, 2006, the statute was amended by the voters to provide:
"The parole period of any person found to be [an SVP] shall be tolled until that person is
found to no longer be [an SVP], at which time the period of parole, or any remaining
conditional release, or what must be proven to obtain conditional release. We conclude either argument is not ripe for review because Bocklett has not filed a petition for conditional release under section 6608. Thus, the question whether he is disadvantaged as compared to an MDO, by what he is required to show or how he must make the showing, seeks an advisory opinion based on hypothetical facts, which we are not permitted to render.
24
portion thereof, shall begin to run." (Pen. Code, § 3000(a)(4), as amended by Prop. 83,
§ 17, eff. Nov. 8, 2006.)
Penal Code section 3000(a)(4), was amended in 2011, effective January 1, 2012.
(Cal. Const., art. IV, § 8, subd. (c)(1) [statutes enacted at a regular session go into effect
on Jan. 1 of the following year].) As amended, the statute tolls the period of parole for a
person subject to SVP proceedings upon a finding of probable cause rather than upon a
finding that the person is actually an SVP. (Pen. Code, § 3000(a)(4), as amended by
Stats. 2011, ch. 359, § 1.5.) At the same time, Penal Code section 3000, subdivision
(a)(5), was added to provide as follows: "Paragraph (4) applies to persons released by the
Department of Corrections and Rehabilitation on or after January 1, 2012. Persons
released by the Department of Corrections and Rehabilitation prior to January 1, 2012,
shall continue to be subject to the law governing the tolling of parole in effect on
December 31, 2011." (Pen. Code, § 3000, subd. (a)(5), as added by Stats. 2011, ch. 359,
§ 1.5, eff. Jan. 1, 2012.)
2. Analysis
Bocklett argues that the current version of Penal Code section 3000(a)(4), rather
than the initial version enacted alongside the Act in 1996, violates his right to be free
from ex post facto laws under the California and United States Constitutions. The People
argue this claim is not ripe because Bocklett will not be aggrieved by the operation of this
statute unless he is found to no longer meet the criteria for commitment as an SVP,
granted his unconditional discharge from DSH, and released on parole. Assuming the
claim is ripe, the People contend Bocklett forfeited the claim by not raising it below. For
25
purposes of analysis, we assume, without deciding, that Bocklett's claim is ripe for
review and we exercise our discretion to address the issue on its merits.
The federal and state ex post facto clauses (U.S. Const., art. I, § 10, cl. 1; Cal.
Const., art. I, § 9) prohibit legislation " 'which makes more burdensome the punishment
for a crime, after its commission . . . .' " (Collins v. Youngblood (1990) 497 U.S. 37, 42
(Collins); People v. McVickers (1992) 4 Cal.4th 81, 84.) The ex post facto prohibition is
intended to ensure that individuals have " 'fair warning' about the effect of criminal
statutes [and] 'restricts governmental power by restraining arbitrary and potentially
vindictive legislation.' " (Landgraf v. USI Film Products (1994) 511 U.S. 244, 267.)
"The ex post facto clause prohibits only those laws that 'retroactively alter the definition
of crimes or increase the punishment for criminal acts.' " (McKee I, supra, 47 Cal.4th at
p. 1193.)
In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart) our high court
addressed whether commitment of a prisoner under the Act violated the ex post facto
prohibition if it was based on sexually violent offenses committed before the effective
date of the Act. (Hubbart, at p. 1171 ["The basic issue raised by [the prisoner was]
whether the [Act] inflicts 'punishment' within the meaning of Collins, supra, 497 U.S. 37,
43."].) The Hubbart court held that "the [Act] does not 'affix culpability' or seek
'retribution' for criminal conduct" (Hubbart, at p. 1175), and rejected a prisoner's ex post
facto argument. (Ibid.; see also McKee I, supra, 47 Cal.4th at pp. 1193-1195 [rejecting
an ex post facto challenge to Act amendments modifying rules for release from
commitment].) A judicial determination that a law is not punitive "removes an essential
26
prerequisite for. . . .ex post facto claims." (Kansas v. Hendricks (1997) 521 U.S. 346,
369.) Since the Act is not punitive in nature, the constitutional provisions prohibiting ex
post facto laws are inapplicable.
Moreover, Bocklett committed his latest offense in 1994, but the Act and Penal
Code section 3000(a)(4) were not enacted until 1996. (Hubbart, supra, 19 Cal.4th at p.
1143; Pen. Code, § 3000(a)(4), as enacted by Stats. 1996, ch. 462, § 3, eff. Sept. 13,
1996.) Accordingly, because the Act did not exist at the time of Bocklett's offenses he
was not subject to any increase in punishment based upon the tolling provision in the
most recent version of the law as this provision is "clearly intended to operate and protect
the public in the present, not to serve as additional punishment for past crimes." (In re
E.J. (2010) 47 Cal.4th 1258, 1278, 1279-1280 [application of residency restrictions under
Penal Code section 3003.5 to individuals released on parole after effective date of law
does not violate ex post facto laws].) For this reason, we hold that application of the law
here did not impose any unconstitutional, increased punishment on Bocklett.