People v. Green

Opinion

POCHÉ, J. Appellant, Glen Foster Green, appeals from a sustained petition and a commitment to Atascadero State Hospital entered after a jury found him to be a sexually violent predator (SVP) within the meaning of California’s Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.).1

A petition was filed October 6, 1997, seeking to have appellant declared a SVP. On November 14, 1997, the court conducted a hearing and after reviewing the petition and the reports of two mental health professionals [924]found there was probable cause that appellant was a person coming within the provisions of section 6600. On the basis of the opinion in In re Parker (1998) 60 Cal.App.4th 1453, 1469-1470 [71 Cal.Rptr.2d 167] (due process requires potential SVP be given opportunity at probable cause hearing to be fully heard, to cross-examine state’s witnesses and to call own witnesses), appellant sought and received a second probable cause hearing which was conducted in July 1998. At that hearing after the People presented their documentary evidence, counsel for appellant called and examined at considerable length the two mental health experts, Drs. Putnam and Sheppard, whose reports were submitted in support of the petition. (See In re Kirk (1999) 74 Cal.App.4th 1066, 1075-1076 [88 Cal.Rptr.2d 648].) At the conclusion of the hearing the court again found probable cause.

After a two-day trial on March 10, 1999, the jury returned a verdict finding the allegations of the petition to be true and the court committed appellant to the Department of Mental Health for two years. Appellant takes a timely appeal.

I. Discussion

Appellant raises two claims of error on appeal. First, he challenges section 6600 as constitutionally infirm, both on its face and as applied to him, because it does not accord to potential SVP’s all those procedural rights guaranteed a criminal defendant under the United States and California Constitutions.

A. Equal Protection

In order to establish a meritorious claim under the equal protection provisions of our state and federal Constitutions appellant must first show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Andrews (1989) 49 Cal.3d 200, 223 [260 Cal.Rptr. 583, 776 P.2d 285].) Equal protection applies to ensure that persons similarly situated with respect to the legitimate purpose of the law receive like treatment; equal protection does not require identical treatment. (People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015].) Strict scrutiny is the appropriate standard against which to measure claims of disparate treatment in civil commitment. (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171, fn. 8 [167 Cal.Rptr. 854, 616 P.2d 836]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20 [81 Cal.Rptr.2d 492, 969 P.2d 584]; People v. Buffington (1999) 74 Cal.App.4th 1149, 1156 [88 Cal.Rptr.2d 696].)