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A Santa Clara County prosecutor got his way in court Wednesday, making way for a stiffer application of a controversial new sex offender law than in most counties across the state. Deputy District Attorney James Cahan persuaded Judge Alfonso Fernandez to keep eight sexually violent predators in a mental institution indefinitely � even though a jury had initially sentenced them to only two years. “What’s fair to this community,” Cahan said to Fernandez, is telling those sex offenders that “you stay in until we have a good idea that you’re safe enough to get out.” Cahan argued that the newly revised state Sexually Violent Predator Act must apply retroactively to those SVPs who were already in civil custody when voters passed Proposition 83 last year. Before that law, prisoners convicted of serious sex offenses who completed their criminal sentences could be civilly committed to a state mental hospital, under the condition they would be confined for two years. Then, they would be able to convince a jury they were no longer sexually violent predators. But Prop 83 wiped out the right to a jury trial every two years, and replaced it with indeterminate civil confinement. Since then, most prosecutors have simply notified SVPs with upcoming commitment trials that they would be facing higher stakes than in the past. But Santa Clara County has been different. Before Wednesday’s hearing, Cahan had already succeeded in convincing three judges, including Fernandez, to impose indeterminate commitments for seven SVPs confined prior to the revised law. Now, with eight more SVPs taken care of on Wednesday, Cahan is attempting to make a clean sweep of the remaining 14 SVPs in three more hearings this month. According to Cahan, the Legislature’s and voters’ intent behind changing the new Welfare and Institutions code � 6604.1 is written plainly: The indeterminate commitment starts on the “initial” order of commitment. “By using the term ‘initial,’ the authors of the change in the law inherently demonstrated that they were aware of the existence of subsequent commitments and subsequent hearings,” Cahan wrote in his motion. “‘Initial’ can only mean first within a chronological context.” But defense attorneys counter that the updated Welfare and Institutions Code � 6604.1 is written clearly to provide for a two-year recommitment trial. On Wednesday, Hayes repeated what she has unsuccessfully argued in previous hearings: In order for a judge to commit a person involuntarily, there would have to be a current finding that the person is a danger to the community. In court papers, Deputy Public Defender Patrick Hoopes has also argued that automatically converting those initial two-year commitments to indefinite and possibly lifetime terms violated multiple constitutional rights of due process, equal protection and protections from double jeopardy and ex post facto. Cahan has countered that the civil commitment under the new law is not a criminal punishment. Instead, he writes, the commitment ensures the respondent receives needed treatment and protects society from the person’s diagnosed disorder. Immediately after oral arguments on Wednesday, Fernandez ruled as he had in previous cases. “The statute is clear on its face,” Fernandez said, adding he didn’t believe retroactively imposing indeterminate commitments violated constitutional protections. The Santa Clara County district attorney’s office isn’t the first to take this position in California, but it is one of the few. San Diego County prosecutors were the first to succeed in the motion to automatically convert the commitments. Monterey County is another where the motion succeeded in one case. But just as the various DA’s offices have taken varying approaches to the revised SVP Act, judges also disagree. In Contra Costa County, for example, Judge John Kennedy released sex offender Cary Verse in May and specifically stated the indefinite term could not be applied retroactively. Many attorneys throughout the state agree the issue will inevitably be decided in the higher courts.

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