I concur in the result.
The majority opinion labors to resolve issues concerning provisions of a statute not now in effect. Its precedential value must be discounted by its inapplicability to the legislation which now governs.
The opinion interprets criteria for extended commitment which have been significantly amended by legislation effective January 1, 1980. The opinion also rejects constitutional challenges to the MDSO statute on the basis of a standard of amenability for treatment which the Legislature intended to reject by the same legislation. In this posture the case lacks not only the concreteness of facts considered in the light of operative legislation, but also the “‘reasonable probability that the same questions will again be litigated and appealed,...’” (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 470, p. 4427, citing to People v. West Coast Shows (1970) 10 Cal.App.3d 462, 468 [89 Cal.Rptr. 290].)
The opinion interprets and considers the constitutionality of Welfare and Institutions Code section 6316.2, as added by Statutes 1977, chap*494ter 164, section 3. The section, subsequently amended by Statutes 1978, chapter 1039, section 2, was to have expired by its own terms on January 1, 1980. On September 22, 1979, the Legislature enacted two measures amending section 6316.2: Assembly Bill No. 1332 (A.B. 1332) and Senate Bill No. 898 (S.B. 898). The measures are contained in chapters 991 and 992 of the Statutes of 1979.
Both chapters contain revisions of section 6316.2 intended to take effect on January 1, 1980. They are double-joined, a legislative device to order the priority of conflicting enactments. (In re Thierry S. (1977) 19 Cal.3d 727, 739-740 [139 Cal.Rptr. 708, 566 P.2d 610].) However, a flaw in the double-joining procedure leaves unresolved the issue of priority.1 The issue of priority may affect the constitutionality of the MDSO law, as shown below. It does not affect the amended criteria for extended commitment since both chapters contain identical amendments. The amendments provide:
“(a) A person may be committed beyond the term prescribed by section 6316.1. . .only if such person meets all of the following:
*495“(2) Suffers from a mental disease, defect, or disorder and as a result of such mental disease, defect, or disorder, is predisposed to the commission of sexual offenses to such a degree that he or she presents a substantial danger of bodily harm to others.” (Welf. & Inst. Code, § 6316.2, subd. (a).)
It is apparent that amended section 6316.2 makes the predictive (or causal) link between mental disorder and effect much stronger than in the statute before this court by substituting “danger” for “threat” and “bodily” harm for “health and safety.” These amendments, affecting “the most basic personal liberty interest” (People v. Saffell (1979) 25 Cal.3d 223, 228 [157 Cal.Rptr. 897, 599 P.2d 92]), require the closest judicial scrutiny, a task not accomplished by the majority opinion’s offhand assertions that the legislative changes are of “no significance... to the permitted scope of expert testimony” (majority opn., ante, fn. 3), a position which renders without meaning the Legislature’s change in language.
The majority opinion also upholds the constitutionality of the MDSO statute on the basis inter alia that “the difference in mental condition between ordinary offender, ‘non-treatable’ MDSO’s and ‘treatable’” MDSO’s is an adequate constitutional ground for the difference in the commitment of the classes. (Majority opn., ante, p. 489.)
But if section 2 of chapter 991 is operative, as the Legislature intended (see ante, fn. 1), “[a]menability to treatment is not required for a finding” justifying an extended commitment of an MDSO beyond that served by an ordinary offender for the same offense. The removal of the amenability requirement renders the MDSO statute of doubtful constitutionality. (People v. Compelleebee (1979) 99 Cal.App.3d 296 [160 Cal.Rptr. 233]; People v. Lakey (1980) 102 Cal.App.3d 962, 970-972; People v. Feagley (1975) 14 Cal.3d 338 [121 Cal.Rptr. 509, 535 P.2d 373].)
Appellant’s petition for a hearing by the Supreme Court was denied August 28, 1980. Mosk, J., and Newman, J., were of the opinion that the petition should be granted.
The flaw in the double-joining procedure arises from its attempted application to chapters having different operative dates. The double-joining procedure is designed to provide a method of choosing which of two measures is to be operative if both “go into effect on the same day.... ” (Italics added.) (Note, Statutory Construction: Conflicting Acts Passed at the Same Session: Higher Chapter Number Prevails (1956) 3 UCLA L.Rev. 417; and see Gov. Code, § 9605; In re Thierry S. (1977) 19 Cal.3d 727, 739-740 [139 Cal.Rptr. 708, 566 P.2d 610].) However, if it is applied, as here, to chapters, one of which has an urgency clause (and takes immediate effect) and the other does not (and takes effect by law on Jan. 1 following its enactment) the premise upon which double-joining is based is destroyed and confusion engendered. That is what happened to chapters 991 and 992.
The measures were double-joined such that section 2 of the bill given the higher chapter number was to be given effect on January 1, 1980. The sections numbered as 2 in each measure are identical. However, S. B. 898, given the higher chapter number (992) actually took effect on the date of its enactment, September 22, 1979, because of an urgency clause. That is, the higher numbered chapter took effect before the lower numbered chapter. Since chapter 992 had an urgency clause, it took effect before chapter 991, making the later effective chapter 991 supersede chapter 992. But the double-joining clause of A. B. 1332 directed that its section 2 take effect only if A. B. 1332 were given a higher chapter number. That not being the case, only section 1 of A. B. 1332 (ch. 991) remains operative on January 1, 1980. A contingency note to chapter 991 in No. 5 Deering’s Advance Legislative Service, page 1026, concludes that section 1 of A. B. 1332 (i.e., ch. 991) is operative.
However, the legislative intent seems clear that section 2 of either measure take effect (they are identical) despite the linguistic flaw. To square this with the urgency clause would require that section 2 of chapter 991 take effect.