People v. Foster

IN THE SUPREME COURT OF
CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
v.
JEREMY JOHN FOSTER,
Defendant and Appellant.

S248046

Fourth Appellate District, Division One
D071733

San Diego County Superior Court
SCD204096

August 22, 2019

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred
 PEOPLE v. FOSTER
S248046

Opinion of the Court by Liu, J.

The Mentally Disordered Offender Act (Pen. Code, § 2960
et seq.) authorizes the Board of Parole Hearings to involuntarily
commit individuals convicted of certain felony offenses for
mental health treatment as a condition of parole. (Pen. Code,
§ 2962; all undesignated statutory references are to this code.)
Commitment as a mentally disordered offender (MDO) may
continue even after an offender’s parole term has expired, so
long as the district attorney makes a showing that the MDO’s
mental disorder is not in remission and that the MDO, because
of the disorder, represents a substantial danger of physical
harm. (§§ 2970, 2972.)
In November 2014, California voters enacted Proposition
47, which reclassified certain drug and theft-related offenses
from felonies (or wobblers) to misdemeanors. (People v. Valencia
(2017) 3 Cal.5th 347, 355.) The initiative also authorizes
individuals who have completed felony sentences affected by
Proposition 47 to petition to redesignate the felony as a
misdemeanor. (§ 1170.18, subd. (f).) Proposition 47 mandates
that, with the exception of firearms restrictions, a redesignated
conviction “shall be considered a misdemeanor for all purposes.”
(§ 1170.18, subd. (k) (section 1170.18(k)).)
In 2016, defendant Jeremy John Foster successfully
petitioned to have a felony grand theft conviction redesignated
as a misdemeanor. Foster now argues that his commitment or

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Opinion of the Court by Liu, J.

recommitment as an MDO must be vacated because of the
absence of a foundational felony.
We conclude that the applicable statutes do not afford
Foster the relief he seeks. Under the MDO statute (§§ 2970,
2972), the redesignation of Foster’s felony as a misdemeanor
does not undermine the validity of his initial civil commitment,
which was legally sound at the time the determination was
made. Nor does the redesignation alter the criteria governing
Foster’s eligibility for recommitment as an MDO. Equal
protection principles do not compel a different result.
Accordingly, we affirm the Court of Appeal’s judgment.
I.
On January 17, 2007, Foster entered a convenience store
and grabbed merchandise from behind the counter. Foster
falsely told the store clerk that he was a police officer and that
he “can do what he wants.” The clerk attempted to physically
stop Foster; Foster pushed the clerk away and fled. Foster was
arrested, and the merchandise was recovered at the scene.
Foster pleaded guilty to one count of felony grand theft.
(§ 487, subd. (c).) The court sentenced Foster to 16 months in
prison. On September 14, 2010, after Foster had completed his
sentence, he was admitted to a state hospital as an MDO as a
parole condition under section 2962. Foster’s commitment was
extended several times, and he was released to an outpatient
conditional release program for further treatment on October
10, 2014. Since his initial commitment, Foster has been
recommitted as an MDO annually under section 2966,
subdivision (c) and under sections 2970 and 2972.
In 2016, after the voters approved Proposition 47, Foster
successfully petitioned to have his felony conviction

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Opinion of the Court by Liu, J.

redesignated as a misdemeanor. Foster then moved to dismiss
his recommitment as an MDO on the basis that the
redesignation of his theft offense meant he no longer had a
qualifying offense for his MDO recommitment. The trial court
denied the motion.
The Court of Appeal affirmed. The court adopted the
reasoning it set out in People v. Goodrich (2017) 7 Cal.App.5th
699, 709–711, which rejected an identical argument. In
Goodrich, the Court of Appeal concluded that Proposition 47
does not apply to retroactively invalidate a properly imposed
MDO commitment or to invalidate subsequent recommitments.
The Goodrich court, interpreting the criteria for recommitment
set forth in section 2972, subdivision (c), reasoned that
recommitment “is not predicated upon [an individual’s] felony
conviction; rather, it is predicated on his current mental state
and dangerousness.” (Goodrich, at p. 711.) The Goodrich court
further concluded that a challenge to an individual’s initial
commitment as an MDO through Proposition 47 would amount
to inappropriate retroactive relief “for the collateral purpose of
invalidating an initial MDO commitment long after it was
properly imposed.” (Goodrich, at p. 711.) Here, the Court of
Appeal also rejected an equal protection claim premised on
Foster’s asserted similarity to individuals committed under the
Sexually Violent Predators Act (SVP Act; Welf. & Inst. Code,
§ 6600 et seq.).
We granted review.
II.
“Enacted in 1985, the MDO Act requires that an offender
who has been convicted of a specified felony related to a severe
mental disorder and who continues to pose a danger to society
receive appropriate treatment until the disorder can be kept in

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Opinion of the Court by Liu, J.

remission.” (People v. Harrison (2013) 57 Cal.4th 1211, 1218
(Harrison).) The MDO Act provides for treatment at three
stages of commitment: as a condition of parole (§ 2962), in
conjunction with the extension of parole (§ 2966, subd. (c)), and
following release from parole (§§ 2970, 2972). (Lopez v. Superior
Court (2010) 50 Cal.4th 1055, 1061–1062 (Lopez).)
Section 2962 enumerates six criteria that must be met at
the time of an offender’s initial commitment as an MDO: (1) the
offender has a severe mental disorder; (2) the disorder is not or
cannot be kept in remission without treatment; (3) by reason of
the disorder, the offender represents a substantial danger of
physical harm to others; (4) the disorder was a cause or
aggravating factor in the underlying crime; (5) the offender was
treated for the disorder for at least 90 days prior to his or her
release; and (6) the underlying crime was either an enumerated
felony or an unenumerated crime “in which the prisoner used
force or violence, or caused serious bodily injury” or “expressly
or impliedly threatened another with the use of force or violence
likely to produce substantial physical harm.” (§ 2962,
subds. (a)–(e); Harrison, supra, 57 Cal.4th at pp. 1229–1230.) In
Lopez, we characterized the latter three factors as “ ‘static’ or
‘foundational’ factors in that they ‘concern past events that once
established, are incapable of change.’ ” (Lopez, supra, 50 Cal.4th
at p. 1062.) And we characterized the first three factors as
“dynamic” or “capable of change over time” and observed that
they “must be established at each annual review of the
commitment.” (Ibid.)
Section 2966, subdivision (c) governs the second phase of
an offender’s MDO commitment. If an offender’s parole is
continued for a one-year period under section 3001, the statute
authorizes the Board of Parole Hearings to continue the

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offender’s treatment as an MDO. Section 2966, subdivision (c)
also authorizes procedures for an offender to challenge his or her
recommitment as an MDO, but it explicitly limits that challenge
to the three dynamic MDO criteria. (§ 2966, subd. (c) [“[T]he
procedures of this section shall only be applicable for the
purpose of determining if the parolee [1] has a severe mental
disorder, [2] whether the parolee’s severe mental disorder is not
in remission or cannot be kept in remission without treatment,
and [3] whether by reason of his or her severe mental disorder,
the parolee represents a substantial danger of physical harm to
others.”]; see Lopez, supra, 50 Cal.4th at pp. 1062–1063.)
Sections 2970 and 2972 govern the third and final phase
of MDO commitment, which begins once the offender’s parole
term has expired. Section 2970 permits a district attorney, on
the recommendation of medical professionals, to petition to
recommit an offender as an MDO for an additional one-year
term. An offender will be recommitted if “the court or jury finds
[1] that the patient has a severe mental disorder, [2] that the
patient’s severe mental disorder is not in remission or cannot be
kept in remission without treatment, and [3] that by reason of
his or her severe mental disorder, the patient represents a
substantial danger of physical harm to others.” (§ 2972,
subd. (c).) An MDO may also be released on outpatient status
during this third phase if the committing court finds such
treatment can be provided “safely and effectively.” (§ 2972,
subd. (d).)
Foster argues that he is no longer eligible for commitment
as an MDO because the felony conviction that initially qualified
him for commitment has been redesignated a misdemeanor.
(§ 1170.18, subds. (f), (g).) Specifically, Foster points to the
provision of section 1170.18 added by Proposition 47 providing

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Opinion of the Court by Liu, J.

that “[a] felony conviction that is . . . designated as a
misdemeanor under subdivision (g) shall be considered a
misdemeanor for all purposes . . . .” (§ 1170.18(k).) The term
“for all purposes,” Foster contends, necessarily includes the
determination of his eligibility for commitment or
recommitment as an MDO.
As to Foster’s recommitment, the MDO Act indicates that
the criteria for recommitment are solely comprised of the three
factors Lopez characterized as “dynamic.” Section 2972,
subdivision (c), quoted above, sets forth the criteria for
recommitment, and those criteria focus on the continued
existence of the individual’s mental disorder and dangerousness
to others. (See also § 2966, subd. (c) [same “dynamic” criteria
for continued commitment during a one-year continuation of
parole]; Lopez, supra, 50 Cal.4th at p. 1065 [“[O]nce that [initial
one-year] period ends, the statutory language contemplates a
challenge based only upon the dynamic factors justifying
continued treatment.”].) The statute offers no indication that
the felony or misdemeanor character of the MDO’s underlying
offense bears on the recommitment determination. Legislative
history instead suggests that the Legislature added the
requirement that a qualifying offense be one “for which the
prisoner was sentenced to prison” to describe the category of
individuals subject to initial commitment. (See Assem. Off. of
Research, 3d reading analysis of Sen. Bill No. 1296 (1985–1986
Reg. Sess.) as amended Aug. 30, 1985, p. 2 [“Purpose. According
to the author’s office, ‘there is no useful procedure for assuring
mental health treatment for prisoners when their mental
disorder was a factor in their committing a violent crime
following their determinate sentence.’ ”].)

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It is true that Foster, if he had committed his theft offense
today, would not be eligible for initial commitment as an MDO.
(§ 2962, subds. (b), (e).) But Foster’s present ineligibility for an
initial commitment is not determinative of his eligibility for
recommitment. On this point, In re C.B. (2018) 6 Cal.5th 118 is
instructive: Two juveniles who had successfully petitioned for
redesignation of certain felony convictions as misdemeanors
under Proposition 47 argued that they were entitled to
expungement of their DNA samples and profiles from the state’s
DNA databank because their obligation to submit DNA was
based on the felony violations now reduced to misdemeanors.
(In re C.B., at pp. 122–123, citing §§ 296, 296.1 [requiring felony
offenders to provide DNA sample].) We rejected the argument
on the ground that “submission and removal of samples have
been governed by different standards.” (In re C.B., at p. 126.)
By statute, eligibility for expungement is confined to
circumstances involving “lack of charges, acquittal, appellate
reversal, or a finding of factual innocence” (id. at p. 128, citing
§ 299, subd. (b)) and is not authorized “on the ground that
conduct previously deemed a felony is now punished only as a
misdemeanor” (In re C.B., at p. 128). We held that “a showing
of changed circumstances eliminating a duty to submit a sample
is an insufficient basis for expungement of a sample already
submitted.” (Ibid.) Similarly here, initial commitment and
recommitment are “governed by different standards” (id. at
p. 126), and “a showing of changed circumstances” eliminating
eligibility for initial commitment “is an insufficient basis” for
precluding recommitment of an individual who has already
completed his initial commitment (id. at p. 128).
Foster points to section 1170.18(k)’s directive that a
redesignated felony “shall be considered a misdemeanor for all

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purposes.” (Cf. People v. J.S. (2014) 229 Cal.App.4th 163, 171
[“Even after the expiration of the initial commitment, . . . the
initial determination of whether an offender qualifies as an
MDO continues to have practical effects. . . . Obviously, if an
offender’s initial commitment is improper, any extended
commitment would also be improper.”].) But the redesignation
of Foster’s underlying felony as a misdemeanor does not
undermine the validity of his initial commitment as an MDO.
Foster successfully petitioned for redesignation of his felony
offense as a misdemeanor in 2016, six years after he was
initially committed as an MDO. In People v. Buycks (2018) 5
Cal.5th 857 (Buycks), we examined the extent to which section
1170.18(k) operated retroactively by applying “ ‘the principle
[codified in Penal Code section 3] that, “in the absence of an
express retroactivity provision, a statute will not be applied
retroactively unless it is very clear from extrinsic sources that
the [lawmakers] . . . must have intended a retroactive
application.” ’ ” (Buycks, at p. 880.) We found it “significant”
that “subdivisions (a) and (f) of section 1170.18 both clearly
reflect an intent to have full retroactive application, whereas
subdivision (k) uses no similar language.” (Id. at pp. 880, 881.)
This disparity led us to conclude that “the default presumption
applies to [section 1170.18(k)] so that its effect operates only
prospectively.” (Id. at p. 881.)
We went on to recognize a limited exception based on In re
Estrada (1965) 63 Cal.2d 740 (Estrada). “The Estrada rule rests
on the presumption that, in the absence of a savings clause
providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend
as broadly as possible, distinguishing only as necessary between

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Opinion of the Court by Liu, J.

sentences that are final and sentences that are not.’ ” (Buycks,
supra, 5 Cal.5th at p. 881.) Section 1170.18(k), we observed,
“contains no savings clause indicating that it applies only
prospectively, nor does it contain any language indicating that
it otherwise limits or subsumes the ordinary presumption long
established under the Estrada rule.” (Buycks, at pp. 882–883.)
We thus concluded that “the reduction of a felony conviction to
a misdemeanor conviction under Proposition 47 exists as ‘a
misdemeanor for all purposes’ prospectively, but, under the
Estrada rule, it can have retroactive collateral effect on
judgments that were not final when the initiative took effect on
November 5, 2014. [Citation.] This construction comports with
[section 1170.18, subdivision (n)], which explicitly states that
‘[r]esentencing pursuant to this section does not diminish or
abrogate the finality of judgments in any case that does not come
within the purview of this section.’ ” (Id. at p. 883, fn. omitted.)
We applied this rule in Buycks to hold that the redesignation of
a felony conviction to a misdemeanor under Proposition 47
operates retrospectively to ameliorate a sentence enhancement
predicated on that felony conviction, so long as the judgment
containing the sentence enhancement was not final when
Proposition 47 took effect. (Buycks, at pp. 890–891.)
Section 1170.18(k), as construed in Buycks, does not aid
Foster. For one thing, it is not clear that an MDO commitment,
which we have characterized as “not penal or punitive” (Lopez,
supra, 50 Cal.4th at p. 1061), is a type of judgment covered by
Estrada’s limited rule of retroactivity as applied to section
1170.18(k). (Cf. In re C.B., supra, 6 Cal.5th at p. 131.) In any
event, the Estrada rule has no applicability to the circumstances
here. In Lopez, we explained that “the Legislature intended an
MDO to be permitted to challenge the static factors justifying

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his or her commitment only during the initial one-year period of
treatment.” (Lopez, at p. 1065.) Foster completed his initial
year of treatment in 2011, well before the enactment of
Proposition 47. It is true that Foster, unlike the petitioner in
Lopez, is challenging the validity of his initial commitment on a
ground (i.e., redesignation of his qualifying felony as a
misdemeanor) that could not have been raised during the one-
year period of his initial commitment. (See Lopez, at pp. 1060–
1061, 1066–1067.) But in this respect, Foster is no different
than any defendant seeking to apply a felony redesignation to
ameliorate a collateral consequence that already became final
before Proposition 47 took effect. Buycks made clear that the
limited retroactivity of section 1170.18(k) based on Estrada does
not extend that far.
In sum, the redesignation of Foster’s theft offense as a
misdemeanor does not undermine the continued validity of his
initial commitment or preclude Foster’s continued
recommitment as an MDO.
III.
Foster further contends that under the logic of In re Smith
(2004) 42 Cal.4th 1251 (Smith), the redesignation of his
qualifying felony as a misdemeanor eliminates the basis for his
continued commitment and that a failure to so hold would
violate equal protection principles. In Smith, we construed the
SVP Act, which requires a qualifying felony offense to support
civil commitment of an offender determined to be a sexually
violent predator. (Smith, at p. 1257.) We held that “if the People
seek to continue SVP proceedings against someone whose
present conviction has been reversed, it must retry and
reconvict him.” (Id. at p. 1270.) Foster also argues that he is
similarly situated to the defendants in In re Bevill (1968) 68

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Opinion of the Court by Liu, J.

Cal.2d 854 (Bevill) and In re Franklin (2008) 169 Cal.App.4th
386 (Franklin). In Bevill, we held that a “mentally disordered
sex offender” (now called an SVP) could no longer be
involuntarily committed because he was convicted under a
portion of a statute that did not prohibit his conduct. (Bevill, at
pp. 862–863, 856.) In Franklin, the Court of Appeal held that
an SVP petition was “fatal[ly] flaw[ed]” where the petition was
filed after the reversal of the petitioner’s felony conviction and
his resentencing as a misdemeanant. (Franklin, at p. 392.)
“ ‘ “The first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted
a classification that affects two or more similarly situated
groups in an unequal manner.” [Citations.] This initial inquiry
is not whether persons are similarly situated for all purposes,
but “whether they are similarly situated for purposes of the law
challenged.” ’ [Citation.] In other words, we ask at the
threshold whether two classes that are different in some
respects are sufficiently similar with respect to the laws in
question to require the government to justify its differential
treatment of these classes under those laws.” (People v. McKee
(2010) 47 Cal.4th 1172, 1202.)
Even assuming that SVPs and MDOs are similarly
situated for present purposes, the cases Foster cites do not
establish differential treatment of the two classes of civil
committees. In Smith, the reversal of the defendant’s felony
conviction occurred while the SVP petition was “pending”; the
defendant challenged his eligibility for SVP commitment “[a]fter
his conviction was reversed, and before the SVP commitment
proceedings progressed any further.” (Smith, supra, 42 Cal.4th
at p. 1256.) It was in that context that we found the defendant
ineligible for commitment due to the absence of a qualifying

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conviction. Here, by contrast, the initial commitment
determination occurred years ago, and there is no dispute that
Foster had been validly convicted of a qualifying felony at the
time that determination was made.
In Bevill, we held that because of the invalidity of the
petitioner’s conviction, his continued commitment as an SVP
was also invalid. (Bevill, supra, 68 Cal.2d at p. 862 [“[A] valid
commitment must be based on a valid conviction.”].) But that
holding flowed from the structure of the statute governing
commitment as a “mentally disordered sex offender,” under
which a criminal proceeding was “suspended” for the duration
of a civil commitment. (Id. at p. 858; see Welf. & Inst. Code,
former § 6302.) We held that under that statute, “[w]hen the
proceedings relating to commitment as a mentally disordered
sex offender have run their course, the criminal case may be
resumed and sentence imposed.” (Id. at p. 858.) Because “[t]he
structure of the statute itself manifest[ed] the integral and
continuing relation foreseen to exist between commitment and
conviction” (id. at p. 861), we held that the invalidation of the
petitioner’s conviction eliminates a court’s “jurisdiction to
continue the criminal proceedings . . . , and the entire statutory
edifice would become a shambles of meaningless alternatives” if
commitment proceedings were allowed to continue (id. at
pp. 861–862). The distinctive structure of the commitment
statute at issue in Bevill has no parallel here, and that case did
not establish a rule applicable in Foster’s case.
Franklin comes closer to Foster’s circumstances insofar as
it involved the reduction of a felony conviction to a misdemeanor
instead of an outright reversal. (Franklin, supra, 169
Cal.App.4th at p. 393.) However, the reduction of the felony in
Franklin became final before the district attorney filed an SVP

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petition against the petitioner; in other words, there was no
valid qualifying felony to support the SVP proceeding from the
outset. (Ibid.)
In sum, we reject Foster’s equal protection claim because
we find no differential treatment in the commitment regimes
governing SVPs and MDOs in light of Smith, Bevill, or Franklin.
(See People v. Pipkin (2018) 27 Cal.App.5th 1146, 1151
[discussing Smith and Bevill, and observing that “the
distinguishing factor in . . . these cases is that the initial
commitment was found to be legally improper from the outset”
and thus “could not be viewed as supplying the requisite
foundation for subsequent recommitments”].) In so holding, we
express no view on whether a different analysis or result would
be required if an MDO’s qualifying offense were reversed on
appeal after his one-year period of initial commitment had run.
Whether such an individual could be validly recommitted under
the criteria set forth in section 2966 or section 2972 is a question
not presented by this case. Nor are we confronted here with a
felony redesignation that occurred during the pendency of an
initial commitment proceeding or during an initial one-year
commitment period.
Finally, Foster argues that his continued commitment
despite the reduction of his felony conviction to a misdemeanor
violates due process of law insofar as it amounts to a
commitment based solely on a diagnosis of mental illness and a
prediction of dangerousness. As discussed, the redesignation of
Foster’s felony conviction does not undermine the continuing
validity of his initial commitment. Foster makes no argument
that recommitment based on present findings of mental illness
and dangerousness, following upon a valid initial commitment,
violates due process of law.

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CONCLUSION
We affirm the judgment of the Court of Appeal.

LIU, J.

We Concur:
CANTIL-SAKAUYE, C.J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Foster
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 2/27/18 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S248046
Date Filed: August 22, 2019
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: David J. Danielsen

__________________________________________________________________________________

Counsel:

Michelle D. Peña, under appointment by the Supreme Court, 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, Stacy Tyler, Michael Pulos and Joy
Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michelle D. Peña
3830 Valley Centre Drive, Suite 705, PMB 706
San Diego, CA 92130
(858) 275-3822

Joy Utomi
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9117