I concur in parts I and II of the majority opinion, where the majority concludes Anthony’s commitment was not supported by substantial evidence. I respectfully dissent from part III of the majority opinion, which concludes that a retrial in this case is barred.
I agree with the majority’s analysis and conclusion that, ordinarily, double jeopardy would not bar a retrial because this proceeding is a civil proceeding and double jeopardy does not bar a retrial in a civil proceeding.
I respectfully dissent from the majority’s conclusion that retrial is barred by Welfare and Institutions Code section 1801.5.1 The majority concludes, “The language of section 1801.5 is clear and unambiguous.” (Maj. opn., ante, at p. 1510.) I respectfully disagree. Construed as a whole, I think section 1801.5 is ambiguous and the legislative history indicates the Legislature did not intend to impose double jeopardy principles on these civil proceedings.
Section 1801.5 states in pertinent part, “The person shall be entitled to all rights guaranteed under the federal and state constitutions in criminal proceedings. A unanimous jury verdict shall be required in any jury trial. As to either a court or a jury trial, the standard of proof shall be that of proof beyond a reasonable doubt.” “ ‘We must read a statute as a whole and attempt to harmonize its elements by considering each clause or section in the context of the overall statutory framework. [Citation.]’ ” (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 46 [100 Cal.Rptr.2d 627].) “ ‘[T]he “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].)” (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal.Rptr.2d 233, 851 P.2d 27].)
When I read the statutory language as a whole, I conclude the foregoing statutory language is internally confusing. On the one hand, while the statute says a person shall be entitled to “all” federal and state constitutional rights guaranteed in criminal proceedings, the statute then immediately identifies a *1519right—the unanimous jury verdict—which has long been required by our state Constitution in criminal cases. (People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 932 [64 Cal.Rptr. 327, 434 P.2d 623].) The next sentence identifies another right—proof beyond a reasonable doubt—that has long been guaranteed by the federal Constitution in criminal cases. (In re Winship (1970) 397 U.S. 358, 361-365 [25 L.Ed.2d 368, 90 S.Ct. 1068].) Thus, if the Legislature had really intended to confer “all” constitutional rights available in criminal proceedings, the last two quoted sentences would be surplusage.2 However, it is a venerable maxim of statutory construction that courts should give meaning to every word in a statute and should avoid a construction making any word surplusage. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 249 [127 Cal.Rptr.2d 177, 57 P.3d 654] [construing Sexually Violent Predators Act].)
In light of the internal confusion of the three statutory sentences quoted ante, I do not find section 1801.5 unambiguous, as does the majority. Rather, I think that the statute is sufficiently ambiguous to justify resort to legislative history to try to figure out what the Legislature had in mind. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29 [34 Cal.Rptr.3d 520].)
The statutory language of section 1801.5 was enacted by Assembly Bill No. 2760 (Assem. Bill No. 2760), introduced during the 1983-1984 session of the Legislature. (See Stats. 1984, ch. 546, § 3, p. 2176.)
The Digest of Assem. Bill No. 2760 before the Assembly Criminal Law and public Safety Committee stated in part: “The statute now requires only that three-fourths of the members of the jury agree by a preponderance of the evidence that the ward is dangerous. Court decisions have held that due process requires a unanimous jury verdict beyond a reasonable doubt. This bill codifies these procedural requirements.” (Assem. Com. on Criminal Law and Public Safety, Analysis of Assem. Bill No. 2760, supra, Apr. 4, 1984, p. 1.)
Similarly, the analysis of Assem. Bill No. 2760 that was prepared by the Senate staff recited as follows:
*1520“PURPOSE
“Existing law provides for two-year extensions of Youth Authority jurisdiction over a ward if, by reason of mental or physical abnormality, [he] would be dangerous to the public if released. The statute now requires that three-fourths of the members of the jury agree by a preponderance of the evidence that the ward is dangerous. An appellate court decision, however, has held that due process and equal protection require a unanimous jury verdict beyond a reasonable doubt.
“This bill would codify those procedural requirements and make other technical changes in existing law.
“The purpose of this bill is to conform statutory and case law.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2760, supra, as introduced, PP- 1-2.)
The report of the Assembly Committee on Criminal Law and Public Safety is to the same effect: “Purpose. The purpose of the bill is to codify judicially mandated due process safeguards in the statute to insure that extension proceedings are conducted properly. (See People v. Superior Court (Vernal D.) [(1983)] 142 Cal.App.3d 29 [190 Cal.Rptr. 721].) CYA reports that there are about 12 such cases each year. This is a rather rare proceeding and it can[not] be assumed most prosecutors are familiar with it. Therefore, it is important to correct the statutes which currently inaccurately reflect what procedural safeguards are necessary.” (Assem. Com. on Criminal Law and Public Safety, Analysis of Assem. Bill No. 2760, supra, Apr. 4, 1984, p. 1.)
It therefore appears that the purpose of the 1984 amendment to section 1801.5 was to require, by statute, those constitutional rights that had been mandated by the then-recent 1983 decision in People v. Superior Court (Vernal D.), supra, 142 Cal.App.3d 29. This conclusion is entirely consistent with the holding of this court in People v. Henderson (1981) 117 Cal.App.3d 740 [172 Cal.Rptr. 858], which interpreted the meaning of statutory language mandating, “ ‘the rights guaranteed under the Federal and State Constitutions for criminal proceedings’ ” in proceedings to extend the commitment of mentally disordered sex offenders. (Henderson, supra, 117 Cal.App.3d at p. 747.) In Henderson, we rejected the argument that the foregoing statutory language mandated application of the constitutional privilege against self-incrimination. We said, “We do not so read the command of the statute. Subdivision (e) of section 6316.2 codifies the application of constitutional protections to MDSO proceedings mandated by judicial decision [citation]. It does not extend the protection of the constitutional privileges against self-incrimination to testimonial communications which are not incriminatory.” (Henderson, supra, 117 Cal.App.3d at pp. 747-748.)
*1521“We generally presume the Legislature is aware of appellate court decisions. [Citations.]” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1155 [278 Cal.Rptr. 614, 805 P.2d 873].) In this case, the Legislature was doubtless aware of our opinion in Henderson, supra, 117 Cal.App.3d 740, and the legislative history of the 1984 amendment of section 1801.5 demonstrates convincingly that the Legislature intended the amended statute to perform a similar task as that performed by the statute at issue in Henderson. Or, in the words of senate staff, quoted above, “The purpose of this bill is to conform statutory and case law.”
In sum, I read the disputed statutory language as follows: “The person shall be entitled to all rights guaranteed under the federal and state constitutions in criminal proceedings that have been mandated by People v. Superior Court (Vernal D.)[, supra,] 142 Cal.App.3d 29. One such right is that a unanimous jury verdict shall be required in any jury trial. The other such right is that in either a court or a jury trial, the standard of proof shall be that of proof beyond a reasonable doubt.”
Because no judicial decision has ever mandated that double jeopardy principles apply to this extended detention proceeding, double jeopardy is not required by section 1801.5, nor by any other law.
In support of its statutory interpretation the majority relies on In re Luis C. (2004) 116 Cal.App.4th 1397 [11 Cal.Rptr.3d 429]. In that case, the Court of Appeal for the Fifth Appellate District concluded the words of section 1801.5 “are clear and unambiguous.” (116 Cal.App.4th at p. 1402.) Apparently for this reason, the Luis C. court did not consider the legislative history of the 1984 amendment of the statute. As I said, I do not find the language of section 1801.5 unambiguous, and I find the legislative history enlightening in the extreme. For that reason, I respectfully disagree with the analysis of In re Luis C.
The majority also relies upon section 1803, which, according to the majority, confers “discretion” on the court to discharge the appellant from CYA control upon reversal of the judgment. Assuming this court has such discretion, I would not exercise it here.
The record shows a lack of substantial evidence that Anthony has serious difficulty controlling his behavior. Yet that requirement for commitment was not in the statute when Anthony was tried. Rather, it was later read into the statute by our Supreme Court in In re Howard N. (2005) 35 Cal.4th 117, 135 [24 Cal.Rptr.3d 866, 106 P.3d 305]. I am not confident the People adduced all available evidence on the issue. In my view, fairness compels a retrial.
*1522Anthony also contends retrial is barred by principles of res judicata and collateral estoppel. Not so. Principles of res judicata and collateral estoppel apply only where there has been a final judgment. (People v. Barragan (2004) 32 Cal.4th 236, 252-255 [9 Cal.Rptr.3d 76, 83 P.3d 480].) There is no final judgment in this case because it has been reversed. (Ibid.) Neither res judicata nor collateral estoppel bars a retrial here.
I would remand to allow the People to retry the extended commitment of Anthony C. (See In re Michael H. (2005) 128 Cal.App.4th 1074, 1091 [27 Cal.Rptr.3d 627].)
On May 26, 2006, the opinion was modified to read as printed above.
Undesignated statutory references are to the Welfare and Institutions Code.
The majority argues, “There is nothing in the language of section 1801.5 to suggest the Legislature intended those two rights [unanimous jury verdict and proof beyond a reasonable doubt] to be the only constitutional rights applicable in a trial under section 1801.5.” (Maj. opn., ante, at p. 1514.) I disagree. As I shall explain, the legislative history of section 1801.5 demonstrates the Legislature intended to codify the constitutional rights mandated in CYA (California Youth Authority) extended commitment proceedings by People v. Superior Court (Vernal D.) (1983) 142 Cal.App.3d 29 [190 Cal.Rptr. 721]. Those rights were the right to a unanimous jury verdict and proof beyond a reasonable doubt. (Id. at pp. 35-36 & fn. 3.)