P. v. Dannenberg

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Filed 6/3/10 P. v. Dannenberg CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIC DANNENBERG,
Defendant and Appellant.
A123194
(Alameda County
Super. Ct. No. C132302)
Defendant appeals from an order following a jury trial finding defendant to
be a sexually violent predator (SVP), as defined in the Sexually Violent Predator
Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA),1 and committing him to the
Department of Mental Health (DMH) for an indeterminate term pursuant to
section 6604. The petition to commit defendant as an SVP was filed prior to the
passage of Proposition 83. Proposition 83 passed in November of 2006, and the
SVPA was amended. The petition against defendant was amended to reflect an
indeterminate commitment pursuant to the amended SVPA.
On appeal, defendant maintains that committing him pursuant to the
amended SVPA was an improper retroactive application of the statute.
Additionally, defendant contends that the amended SVPA violates the due process,
1 All unspecified code sections refer to the Welfare and Institutions Code.

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equal protection, ex post facto, and double jeopardy clauses of the state and
federal Constitution.
While this appeal was pending, the Supreme Court decided People v.
McKee (2010) 47 Cal.4th 1172 (McKee), which addressed most of the issues
presented by this appeal. In accordance with the McKee decision, we remand this
matter for a hearing on defendant‟s equal protection claim, but we reject his other
contentions and the trial court‟s judgment and order are affirmed in all other
respects.
BACKGROUND
The facts of the predicate offenses are only briefly summarized since these
facts are not relevant to the legal issues raised on appeal. On September 6, 1981,
when defendant was 19 years old, defendant had a knife and forced a 15-year-old
boy to orally copulate him. Defendant was convicted of violating Penal Code
section 288, subdivision (a), and sentenced to three years in prison.
In 1985, defendant forced a 14-year-old boy to orally copulate him.
Defendant was convicted of violating Penal Code section 288, subdivision (c), and
sentenced to six years in prison.
In 1988, defendant met two teenage boys and bound one of the boys, before
threatening him with scissors, sodomizing him, and orally copulating him.
Defendant was convicted of violating Penal Code section 286, subdivision (c), and
section 288, subdivision (a)(c). He received a 10-year prison commitment.
While in prison, defendant had multiple rule violations.
On March 5, 1998, a petition was filed seeking to commit defendant as an
SVP pursuant to the SVPA. Proposition 83 passed in November of 2006, and the
petition was amended to reflect an indeterminate commitment.
Defendant had a jury trial, which began on September 18, 2008. The jury
considered the evaluations of defendant by Dr. Dawn Starr and Dr. Jack Vognsen.
Both Starr and Vognsen found that defendant met the criteria of an SVP.

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Dr. Starr diagnosed defendant with paraphilia not otherwise specified,
personality disorder not otherwise specified with antisocial and narcissistic
features, and sexual sadism. She stated that true paraphilia is chronic and lifelong.
She assessed defendant‟s risk to reoffend, if not kept in a locked facility, as high.
Dr. Vognsen diagnosed defendant with paraphilia not otherwise specified,
sexual sadism, and anti-social personality disorder. Using a number of tests, he
concluded that defendant scored in the high-risk category.
On October 15, 2008, the jury found the petition to be true. The court
ordered defendant committed for an indeterminate amount of time.
Defendant filed a timely notice of appeal.
While this appeal was pending, the Supreme Court decided McKee, supra,
47 Cal.4th 1172. We requested supplemental briefing to discuss the effect of this
Supreme Court decision on the present case.
DISCUSSION
I. THE SVPA AND PROPOSITION 83
At the time the petition was filed seeking to commit defendant as an SVP,
the SVPA (Stats. 1995, ch. 763, § 3, p. 5922) provided for the involuntary civil
commitment for a two-year term of confinement and treatment of persons who, by
a unanimous jury verdict after trial (former §§ 6603, subd. (d), 6604), are found
beyond a reasonable doubt to be an SVP (former § 6604). (People v. Williams
(2003) 31 Cal.4th 757, 764.) A person‟s commitment could not be extended
beyond that two-year term unless a new petition was filed requesting a successive
two-year commitment. (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002)
29 Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial
would be conducted at which the People again had the burden to prove beyond a
reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605,
subds. (d), (e).) As originally enacted, an SVP was defined as “a person who has
been convicted of a sexually violent offense against two or more victims for which
he or she received a determinate sentence and who has a diagnosed mental

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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.” (Former
§ 6600, subd. (a).)
On November 7, 2006, voters approved Proposition 83, “The Sexual
Predator Punishment and Control Act: Jessica‟s Law.” It amended the SVPA
effective November 8, 2006. In addition to other modifications, Proposition 83
changed an SVP commitment from a two-year term to an indefinite commitment.
(§ 6604.) Proposition 83 did not change section 6604‟s requirement that a
person‟s initial commitment as an SVP be proved at trial beyond a reasonable
doubt and section 6605‟s requirement that current examinations of a committed
SVP occur at least once every year (§ 6605, subd. (a)).
Under Proposition 83, the DMH now files an annual report in conjunction
with its examination of an SVP, which “shall include consideration of whether the
committed person currently meets the definition of a sexually violent predator and
whether conditional release to a less restrictive alternative or an unconditional
release is in the best interest of the person and conditions can be imposed that
would adequately protect the community.” (§ 6605, subd. (a).) Subdivision (b) of
section 6605 now provides that “[i]f the [DMH] determines that either: (1) the
person‟s condition has so changed that the person no longer meets the definition of
a sexually violent predator, or (2) conditional release to a less restrictive
alternative is in the best interest of the person and conditions can be imposed that
adequately protect the community, the director shall authorize the person to
petition the court for conditional release to a less restrictive alternative or for an
unconditional discharge.” (§ 6605, subd. (b).) If the state opposes the director‟s
petition, then it must prove beyond a reasonable doubt that the person still meets
the definition of an SVP.
If DMH does not authorize the committed person to file a petition for
release pursuant to section 6605, the person may file a petition for conditional
release for one year and subsequent unconditional discharge pursuant to section

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6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), provides: “In any
hearing authorized by this section, the petitioner shall have the burden of proof by
a preponderance of the evidence.” After a trial court denies a section 6608
petition, “the person may not file a new application until one year has elapsed
from the date of the denial.” (§ 6608, subd. (h).)
Our Supreme Court summarized the effect of Proposition 83: “[U]nder
Proposition 83, an individual SVP‟s commitment term is indeterminate, rather
than for a two-year term as in the previous version of the Act. An SVP can only
be released conditionally or unconditionally if the DMH authorizes a petition for
release and the state does not oppose it or fails to prove beyond a reasonable doubt
that the individual still meets the definition of an SVP, or if the individual,
petitioning the court on his own, is able to bear the burden of proving by a
preponderance of the evidence that he is no longer an SVP. In other words, the
method of petitioning the court for release and proving fitness to be released,
which under the former [SVPA] had been the way an SVP could cut short his two-
year commitment, now becomes the only means of being released from an
indefinite commitment when the DMH does not support release.” (McKee, supra,
47 Cal.4th at pp. 1187-1188, fn. omitted.)
II. The Amended SVPA is Not a Retroactive Application
Defendant contends that applying Proposition 83 to him, years after the
filing of the petition, was a retroactive application of the law. As defendant
recognizes, this issue has been decided against him. (People v. Carroll (2007) 158
Cal.App.4th 503, 510 (Carroll); Bourquez v. Superior Court (2007) 156
Cal.App.4th 1275, 1288-1289; see also People v. Taylor (2009) 174 Cal.App.4th
920, 932-933.)
The Fifth District in Carroll held that imposing an indeterminate term on
SVP adjudications made after passage of the amendments from Proposition 83 is
not a retroactive application of the law. (Carroll, supra, 158 Cal.App.4th at
pp. 513-514.) “In order for a law to be retrospective, it must apply to events

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occurring before it was enacted. (In re Ramirez (1985) 39 Cal.3d 931, 936.)
Stated another way, „[a] statute has retrospective effect when it substantially
changes the legal consequences of past events. [Citation.]‟ (Western Security
Bank v. Superior Court [(1997)] 15 Cal.4th [232,] 243, italics added.) „Thus, the
critical question for determining retroactivity usually is whether the last act or
event necessary to trigger application of the statute occurred before or after the
statute‟s effective date. [Citations.] A law is not retroactive “merely because
some of the facts or conditions upon which its application depends came into
existence prior to its enactment.” [Citation.]‟ (People v. Grant (1999) 20 Cal.4th
150, 157, italics added.)” (Carroll, supra, at p. 513.)
As Carroll explained, because an extension hearing is a new proceeding
requiring a new determination of sexually violent predator status based on the
person‟s current mental condition, application of the amendments to a case in
which a sexually violent predator determination had not yet been made does not
“change the legal consequences of past events or conduct.” (Carroll, supra, 158
Cal.App.4th at p. 513.) The “significant point with respect to retroactivity is not
the filing of the petition, but trial and adjudication under the SVPA. (Garcetti v.
Superior Court (1999) 76 Cal.App.4th 685, 694.) The conduct or event (for want
of a better term) to which the SVPA attaches legal consequences is the person‟s
mental condition at the time of adjudication, not at the time the . . . petition is
filed.” (Carroll, supra, at p. 514, fn. omitted.)
Thus, defendant “was subject to recommitment for an indeterminate term
because of the status of his mental condition after [the] amendments became
effective” (Carroll, supra, 158 Cal.App.4th at p. 514) and the amendments were
not retroactively applied to him.
III. Due Process Claim
Defendant argues that the amended SVPA violated his due process rights.
The People respond that defendant never objected to the constitutionality of the
indeterminate term provision in the trial court and therefore did not preserve the

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issue for appeal.
We disagree that the issue was waived. Challenges to the amended SVPA
raise issues regarding defendant‟s substantial rights and, if he had objected, the
court could not have cured them. (See People v. Saunders (1993) 5 Cal.4th 580,
589, fn. 5.) “A defendant is not precluded from raising for the first time on appeal
a claim asserting the deprivation of certain fundamental, constitutional rights.”
(People v. Vera (1997) 15 Cal.4th 269, 276-277.)
The issues raised in defendant‟s challenge on due process grounds have
recently been decided against him in McKee, supra, 47 Cal.4th 1172. In McKee,
the defendant asserted that his due process rights were violated by the fact that his
commitment was indefinite under the amended statute and that it was now his
burden to show by a preponderance of the evidence that he no longer was an SVP.
(Id. at p. 1188.) The court in McKee concluded that an indefinite commitment did
not violate the defendant‟s due process rights. (Id. at p. 1193.) The court
explained that the defendant had already been found to have previously committed
the requisite criminal acts and was found beyond a reasonable doubt to have “ „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.‟ ” (Id. at p. 1186.) Thus, the requirement that the defendant, after his
initial commitment, “must prove by a preponderance of the evidence that he is no
longer an SVP does not violate due process.” (Id. at p. 1191.)
Defendant also challenges the amended SVPA to the extent it permits the
court to deny his petition without a hearing. Under section 6608, an SVP may
unilaterally petition for release and the court may deny the petition without a
hearing only if it finds the petition frivolous. (§ 6608, subd. (a).) The court in
McKee held that providing the court with discretion to deny a petition without a
hearing as frivolous did not deny the defendant due process because the defendant
had no right to a hearing when the issue “ „indisputably has no merit.‟ ” (McKee,
supra, 47 Cal.4th at p. 1192.)

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Defendant also complains that the amended SVPA reduces his access to the
court because he is not entitled to the assistance of an expert. In support of this
contention he raises the same points and cites the same authority considered by the
Supreme Court in McKee, supra, 47 Cal.4th at pages 1192-1193. Section 6605,
subdivision (d) mandates the appointment of experts when the DMH authorizes an
indigent inmate to petition for release, but section 6608, subdivision (a) merely
provides that petitioner has the right to counsel, with no mention of experts, when
he petitions without the DMH‟s approval. The Supreme Court agreed that expert
testimony is critical in an SVP commitment proceeding. (McKee, supra, at
p. 1192.) The court observed: “If the state involuntarily commits someone on the
basis of expert opinion about future dangerousness, places the burden on that
person to disprove future dangerousness, and then makes it difficult for him to
access his own expert because of his indigence to challenge his continuing
commitment, that schema would indeed raise a serious due process concern.”
(Ibid.) The court, however, rejected this interpretation of the statute and construed
section 6608, subdivision (a), to be read in conjunction with section 6605,
subdivision (a), and as mandating appointment of an expert for an indigent SVP
who petitions the court for release. (McKee, supra, at pp. 1192-1193.) Under this
interpretation of the statute, the Supreme Court held that the amended SVPA did
not violate the due process clause. (McKee, at p. 1193.)
Accordingly, under the holding of McKee, we conclude that defendant‟s
claim of a due process violation has no merit.
IV. Double Jeopardy and Ex-Post Facto Claim
Defendant contends that the 2006 amended SVPA is punitive and violates
the double jeopardy and ex-post facto clauses of the federal Constitution.
Article I, section 10 of the United States Constitution provides: “No state
shall . . . pass any . . . ex post facto law. . . .” The ex post facto clause prohibits
only those laws that “retroactively alter the definition of crimes or increase the
punishment for criminal acts.” (Collins v. Youngblood (1990) 497 U.S. 37, 43.)

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The Supreme Court in McKee, supra, 47 Cal.4th 1172, explained that it had
already made it clear in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, “in
considering an ex post facto challenge to the pre-Proposition 83 version of the
[SVPA], that the Legislature had „disavowed any “punitive purpose[ ],” and
declared its intent to establish “civil commitment” proceedings in order to provide
“treatment” to mentally disordered individuals who cannot control sexually violent
criminal behavior. [Citations.] The Legislature also made clear that, despite their
criminal record, persons eligible for commitment and treatment as SVP‟s are to be
viewed “not as criminals, but as sick persons.” [Citation.] Consistent with these
remarks, the [SVPA] was placed in the Welfare and Institutions Code, surrounded
on each side by other schemes concerned with the care and treatment of various
mentally ill and disabled groups.‟ (Hubbart, at p. 1171.)” (McKee, supra, at
pp. 1193-1194.) The court in McKee explained that the “nonpunitive objectives of
the [SVPA]––treatment for the individual committed and protection of the
public––remain the same after Proposition 83. Moreover, under the Act after
Proposition 83, as before, a person is committed only for as long as he meets the
SVP criteria of mental abnormality and dangerousness. As such, the Proposition
83 amendments at issue here cannot be regarded to have changed the essentially
nonpunitive purpose of the [SVPA].” (Id. at p. 1194.)
With regard to the portion of Proposition 83 concerning increased
punishment for sex offenses, the court in McKee stated, “But the fact that the
amendments to the civil commitment statute are part of the same legislative
enactment as amendments to the Penal Code does not render the former
amendments punitive.” (McKee, supra, 47 Cal.4th at pp. 1194-1195.) Defendant,
here, as the defendant in McKee, argues the seven-factor test articulated in
Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, applies to make
Proposition 83 punitive. Our Supreme Court considered the factors and concluded
that the “Proposition 83 amendments do not make the [SVPA] punitive and
accordingly do not violate the ex post facto clause.” (McKee, supra, at p. 1195.)

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As noted above, defendant also asserts that the amended SVPA violates the
double jeopardy clause of the federal Constitution. He argues that he has already
been punished for the crimes underlying his commitment as an SVP and therefore
any further punishment for these offenses constitutes double jeopardy. Since the
Supreme Court has held that the amended SVPA is not punitive, defendant‟s
double jeopardy argument also fails.
V. Equal Protection Claim
Defendant contends his involuntary commitment as an SVP under the
SVPA, as amended by Proposition 83 in 2006, violated his federal constitutional
right to equal protection under the law because it treats SVP‟s significantly less
favorably than those similarly situated individuals civilly committed under other
statutes. Specifically, he claims that SVP‟s receive treatment disparate from
mentally disordered offenders (MDO) subject to commitment under the Mentally
Disordered Offenders Act (Pen. Code, § 2960 et seq.) or those civilly committed
because they were not guilty of a crime by reason of insanity (NGI) (Pen. Code,
§ 1026 et. seq.).
The court in McKee, supra, 47 Cal.4th 1172 held that the SVPA, as
amended, potentially violates the equal protection clause of the federal
Constitution because SVP‟s are similarly situated to MDO‟s and NGI‟s for
purposes of the term of commitment and burden of proof for release. (Id. at
pp. 1202-1203.) The court concluded that the People must show,
“notwithstanding the similarities between SVP‟s and MDO‟s, the former as a class
bear a substantially greater risk to society, and that therefore imposing on them a
greater burden before they can be released from commitment is needed to protect
society.” (Id. at p. 1208.) The Supreme Court remanded the matter before it to the
trial court to determine whether the People can demonstrate “the constitutional
justification for imposing on SVP‟s a greater burden than is imposed on MDO‟s
and NGI‟s in order to obtain release from commitment.” (Id. at pp. 1208-1209, fn.
omitted.)

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The People agree that here, as in McKee, the People and the trial court did
not understand the proper burden and therefore the matter must be remanded for
an evidentiary hearing. The People request this court appoint a special master to
conduct the evidentiary hearing and ask this court to retain jurisdiction to review
the findings of that hearing pursuant to California Rules of Court, rule 8.252(c).
The People acknowledges that appellate courts make findings of fact only in
exceptional circumstances (see In re Zeth S. (2003) 31 Cal.4th 396, 405), but
maintain that such a situation exists here. The People assert: “Because the McKee
hearing involves a challenge to the constitutionality of the SVP indeterminate term
on its face, rather than as applied, an evidentiary hearing ordered by this court
would involve the same factual issues as any other McKee hearing. Retaining
jurisdiction to directly review the hearing would hasten the eventual resolution of
the equal protection issue by the California Supreme Court and would
significantly reduce the period during which lower courts and litigants operate in
uncertainty as to the constitutionality of the SVPA.”
We disagree that the present case warrants the setting of a hearing pursuant
to California Rules of Court, rule 8.252(c). The justification proffered by the
People––that our keeping jurisdiction over the matter would hasten review by the
Supreme Court––applies to all cases. There is nothing unique about this particular
matter and the trial court is the proper place to hold an evidentiary hearing. Rule
8.252(c) was not “intended to transform reviewing courts into trial courts
[citations] and the power granted is to be exercised sparingly and only where the
purpose of the new findings would constitute a basis for an affirmance of the
judgment or a basis for reversal of the judgment with directions to the trial court to
enter judgment for appellants [citation].” (De Angeles v. Roos Bros., Inc. (1966)
244 Cal.App.2d 434, 443.)
We therefore remand to the trial court to determine whether sufficient
justification has been shown for treating SVP‟s differently than MDO‟s and NGI‟s
under the guidance provided in McKee.

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DISPOSITION
This matter is remanded for a hearing on defendant‟s equal protection
claim. The court‟s judgment and order are otherwise affirmed.
_________________________
Lambden, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.

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