P. v. Foster

Filed 2/27/18 P. v. Foster CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JEREMY JOHN FOSTER,
Defendant and Appellant.
D071733
(Super. Ct. No. SCD204096)
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielson, Judge. Affirmed.
Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall
Einhorn and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Jeremy John Foster appeals from an order denying his motion to dismiss his civil
commitment as a mentally disordered offender (MDO). Foster's commitment began

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after he completed serving his prison sentence for a felony theft offense. In late 2016
Foster successfully petitioned to have his underlying offense redesignated as a
misdemeanor pursuant to The Safe Neighborhoods and Schools Act, Penal Code section
1170.18,1 which became effective after the voters approved Proposition 47 in 2014.
Foster's "motion to dismiss" argued that the redesignation of his original offense as a
misdemeanor means that he no longer meets the criteria for a commitment as an MDO,
and, therefore, he was entitled to be released.
On appeal, Foster renews his argument. This court recently considered and
rejected an identical argument in People v. Goodrich (2017) 7 Cal.App.5th 699
(Goodrich). We see no reason to depart from the reasoning in Goodrich. Additionally,
we disagree with Foster's contention that the trial court's decision violates the equal
protection clause because it results in the disparate treatment of different classes of civil
committees. Accordingly, we affirm the trial court's order denying Foster's motion to
dismiss his commitment.
FACTUAL AND PROCEDUAL BACKGROUND
In August 2007 Foster pled guilty to grand theft of a person, in violation of section
487, subdivision (c), a felony offense. The court sentenced Foster to a determinate term
of 16 months in prison. After completing his sentence and then being civilly committed
in a state hospital for several years as an MDO, Foster was released in October 2014
1 All further statutory references are to the Penal Code unless otherwise indicated.

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under an outpatient program. His outpatient status as an MDO has been renewed
annually.
"In November 2014, voters approved Proposition 47, 'the Safe Neighborhoods and
Schools Act,' which became effective on the day after its passage." (Goodrich, supra, 7
Cal.App.5th at p. 705.) "Among other things, Proposition 47 added section 1170.18,
which permits individuals to petition the trial court to redesignate certain felony offenses
as misdemeanors." (Ibid.)
Pursuant to section 1170.18, Foster petitioned to have his felony theft conviction
redesignated as a misdemeanor. The People did not oppose the petition and the court
granted the petition on October 27, 2016.
Thereafter, Foster moved to dismiss his MDO commitment. He argued that the
redesignation of his theft conviction as a misdemeanor meant it was no longer a
qualifying offense, a necessary precondition to his commitment as an MDO. After
continuing the hearing on Foster's motion to dismiss to await finality of this court's
decision in Goodrich, the trial court denied the motion and recommitted Foster as an
MDO to the outpatient program. Foster submitted on the reports recommending the
renewal of his outpatient status, waiving his rights other than the right to appeal the
court's ruling on his motion to dismiss.
DISCUSSION
I
Foster's appeal is largely premised on a single, narrow issue: whether the
redesignation of his original offense as a misdemeanor means that he no longer meets the

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criteria for an MDO commitment. This precise issue was considered by a panel of this
court in Goodrich, supra, 7 Cal.App.5th 699.
In Goodrich, this court held that the redesignation of an offense under Proposition
47 does not preclude a recommitment as an MDO. As we explained, an initial MDO
commitment is governed by section 2962, which sets forth six criteria necessary to
establish an individual's MDO status. (Goodrich, supra, 7 Cal.App.5th at p. 706.) One
criterion is that the individual was sentenced to prison for an enumerated crime, which
qualifies only if the defendant "received a determinate sentence pursuant to Section 1170
for the crime." (§ 2962, subds. (b), (e)(1).) In other words, the qualifying offense must
be a felony.
This criterion, along with two others, is described as a "static" or "foundational"
factor. (Goodrich, supra, 7 Cal.App.5th at p. 708.) After the initial commitment, if the
People are seeking a recommitment after the expiration of the one-year term, only the
existence of the other three criteria (i.e., that the offender suffers from a severe mental
disorder, that the illness is not or cannot be kept in remission, and that the offender poses
a risk of danger to others) must be established at the annual review. (Id. at pp. 707-708.)
Accordingly, a change in the committee's underlying offense is irrelevant after his
or her initial commitment as an MDO. In Goodrich, this court concluded that "there is no
requirement that the People present evidence to establish the existence of the three 'static'
criteria (i.e., that the mental disorder was a cause of or an aggravating factor in an
enumerated crime; that the individual was sentenced to prison for the crime; and that the
individual had been in treatment for the disorder for 90 days or more in the year

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preceding his or her release on parole) at a recommitment proceeding. Rather, once an
individual has been determined to be an MDO and has been properly committed in an
initial commitment proceeding, the only things that must be established in a
recommitment proceeding are 'that the patient has a severe mental disorder, that the
patient's severe mental disorder is not in remission or cannot be kept in remission without
treatment, and that by reason of his or her severe mental disorder, the patient represents a
substantial danger of physical harm to others.' (§ 2972, subd. (c).) Thus, at Goodrich's
recommitment proceeding, the court was not required to consider whether Goodrich had
served a sentence for any offense. Goodrich's current commitment is not predicated upon
his felony conviction; rather, it is predicated on his current mental state and
dangerousness. His prior felony conviction is not a factor bearing on his current
recommitment. It is undisputed that, at the time he was initially committed as an MDO,
he had suffered a felony conviction for which he served a sentence in prison and that the
initial commitment was proper. Nothing about Proposition 47 changes this." (Goodrich,
supra, 7 Cal.App.5th at pp. 710-711, italics omitted.) Additionally, we held that
Proposition 47 does not apply retroactively to invalidate an initial MDO commitment.
(Ibid.)
We discern no compelling reason to depart from Goodrich. (People v. Bolden
(1990) 217 Cal.App.3d 1591, 1598.) Although Foster is on outpatient status rather than
committed to a state hospital, the requirements for the renewal of his outpatient status are
identical to the recommitment procedures in all aspects relevant to any possible effect of

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Proposition 47. (§ 2972.1, subds. (d) & (e).) Thus, the trial court correctly denied
Foster's motion to dismiss the petition to renew his outpatient status.
II
Foster also contends that the trial court's decision to not dismiss the recommitment
proceeding violates his rights under the equal protection clause because he is similarly
situated to civil committees under the Sexually Violent Predators (SVP) Act. To support
his contention, Foster relies on In re Franklin (2008) 169 Cal.App.4th 386 (Franklin),
which he believes determined that "commitment as SVP was not authorized after the
underlying conviction was reduced from felony to misdemeanor on appeal."2 As argued
by Foster, if SVP and MDO committees are similarly situated and the government cannot
demonstrate a compelling interest in their disparate treatment, release under the SVP Act
following a reclassification of a felony offense to a misdemeanor would require a similar
release under the MDO Act.
This argument, however, relies on a mistaken understanding of the SVP Act and
the Franklin decision. Like the MDO Act, the SVP Act provides for an involuntary civil
commitment based on a diagnosed mental disorder that contributed to a felony offense
2 Foster also relies upon In re Smith (2008) 42 Cal.4th 1251 to support his equal
protection claim predicated on the differential treatment of MDOs and SVPs. Smith,
however, involved the complete reversal of an SVP's underlying criminal conviction on
appeal, after which the petitioner was not retried. Although the Supreme Court
concluded in Smith that such a situation precludes further SVP commitment, that
situation is entirely distinct from the situation presented here, where Foster's underlying
criminal conviction is valid and final. The redesignation of his offense under Proposition
47 is not comparable to the situation in Smith, which is accordingly largely irrelevant to
Foster's argument on appeal.

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and that currently makes the person a danger to the health and safety of others. (See
People v. McKee (2010) 47 Cal.4th 1172, 1185-1186 [discussion of SVP procedures
before passage of Proposition 83].) During the time period relevant to the Franklin
decision upon which Foster relies, the SVP Act provided for an initial two-year term of
commitment that could only be extended if the People petitioned for a recommitment for
another two-year term. (McKee, at pp. 1185-1196.)
In Franklin, a civil committee under the SVP Act petitioned for a writ of habeas
corpus seeking the dismissal of a pending petition for civil recommitment. Franklin's
first two-year commitment as an SVP began in 2001 premised on a petition alleging two
rape convictions, a voluntary manslaughter conviction, and a conviction for possession of
a controlled substance in state prison. (Franklin, supra, 169 Cal.App.4th at p. 388.) In
2004, during his first recommitment term, he was convicted of another felony offense:
willful and intentional damage to jail property in excess of $400. (Ibid.) Apparently
because he was sentenced to an indeterminate prison term under the Three Strikes Law,
the People did not seek his recommitment as an SVP when his term lapsed in August
2005. (Franklin, at p. 391.) In 2006, however, the appellate court reversed Franklin's
felony conviction for damaging jail property and the case was remanded for resentencing
as a misdemeanor. (Id. at p. 389.)
Shortly thereafter, the prosecutor then filed a new petition for recommitment as an
SVP while Franklin was in custody awaiting misdemeanor resentencing. (Franklin,
supra, 169 Cal.App.4th at p. 390.) The appellate court, however, explained that because
Franklin's civil commitment had lapsed, the People could not seek recommitment, but

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rather would have to seek a new initial civil commitment. (Id. at pp. 391-392.) But
because a person is lawfully subject to an SVP civil commitment only if the individual is
in state prison custody either serving a determinate term prison sentence or whose parole
has been revoked, Franklin could not be civilly committed. (Id. at p. 392.)
Thus, the decision in Franklin does not hold that the reclassification of a felony
conviction as a misdemeanor precludes the recommitment of an SVP committee. Instead,
it simply holds that an initial petition for commitment as an SVP must establish that the
individual is currently incarcerated in prison for a felony offense. Accordingly, the
Franklin decision is inapposite.
Setting aside Franklin, Foster is generally mistaken in relying on the redesignation
of an underlying felony via Proposition 47 to preclude recommitment as an SVP to
establish his equal protection claim. To be committed as an SVP, a person must have
been convicted of a "sexually violent offense." (Welf. & Inst. Code, § 6600, subds.
(a)(1), (b).) Proposition 47 expressly precludes relief for any person convicted of a
"sexually violent offense" as defined by the SVP Act. (Pen. Code, §§ 1170.18, subd. (i),
667, subd. (e)(2)(C)(iv)(I).) Therefore, an SVP committee cannot have his or her
underlying felony offense redesignated as a misdemeanor pursuant to Proposition 47.
Finally, Foster argues that applying Proposition 47 to preclude an MDO
commitment for a person that commits grand theft of a person after Proposition 47's
effective date, but allowing the recommitment of Foster, who was convicted of grand
theft of a person before Proposition 47's effective date, also violations the equal

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protection clause. In other words, he contends the unequal treatment of convicted
defendants based on the date of their conviction is unconstitutional.
Disparate treatment based on the date of conviction is not made on the basis of
race, alienage, national origin, gender or legitimacy, which all require a greater level of
scrutiny. (See People v. Mora (2013) 214 Cal.App.4th 1477, 1483.) A statute that
results in the disparate treatment of individuals based on their date of conviction by
applying only prospectively is rationally related to a legitimate state interest and " ' "the
[Fourteenth] Amendment does not forbid statutes and statutory changes to have a
beginning, and thus to discriminate between the rights of an earlier and later time." ' "
(Id. at p. 1484, quoting People v. Floyd (2003) 31 Cal.4th 179, 191.)
For these reasons, Foster does not establish any violation of the equal protection
clause warranting a reversal of the trial court's decision.
DISPOSITION
The order is affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.

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