P. v. Atualevao
Filed 2/13/13 P.
v. Atualevao CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. ATOA ATUALEVAO, Defendant and Appellant. | A131853 (Alameda County Super. Ct. No. 142942) |
INTRODUCTION
Atoa Atualevao raped four women. After serving his last prison sentence, he
was evaluated for involuntary treatment and commitment as a href="http://www.fearnotlaw.com/">sexually violent predator (SVP) pursuant
to Welfare and Institutions Codehref="#_ftn1"
name="_ftnref1" title="">[1]
section 6600 et seq., known as the Sexually Violent Predator Act, or SVPA. In 2011, a jury found true the allegation
that Atualevao is an SVP and the court committed him to a state hospital for an
indeterminate term. On appeal, Atualevao
challenges the evidence as insufficient to sustain the jury’s finding, and the
jury instructions as violative of his constitutional
rights. He also raises
constitutional challenges to the use of the term “sexually violent predatorâ€
and to the imposition of an indeterminate term under the amended SVPA. We reject Atualevao’s contentions and affirm
the judgment.
to Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 6600 et seq., known as the Sexually Violent Predator Act, or SVPA. In 2011, a jury found true the allegation
that Atualevao is an SVP and the court committed him to a state hospital for an
indeterminate term. On appeal, Atualevao
challenges the evidence as insufficient to sustain the jury’s finding, and the
jury instructions as violative of his constitutional
rights. He also raises
constitutional challenges to the use of the term “sexually violent predatorâ€
and to the imposition of an indeterminate term under the amended SVPA. We reject Atualevao’s contentions and affirm
the judgment.
Statement of the Case
In
2002, the Alameda County District Attorney’s Office filed a petition to
involuntarily commit Atualevao to a state mental hospital for a period of two
years as an SVP within the meaning of section 6600 et seq. In 2006, the district attorney filed an
amended petition to involuntarily commit Atualevao as an SVP for an
indeterminate term under the statute. Following
a mistrial in 2010, trial on the amended petition recommenced in February
2011. On March 25, 2011, a jury found
the petition true and the court committed Atualevao to the Department of Mental
Health for an indeterminate term.
Atualevao timely appeals.
Statement of Facts
Predicate Offenses
In
November 1978, Atualevao raped Barbara L.
In December 1978, Atualevao raped Barbara B. Atualevao was initially sentenced to
probation for both crimes, but after he violated his probation he was sentenced
to prison for six years four months.
In March 1986,
Atualevao raped Denise L. In November
1987, Atualevao raped Denise S. He was
sentenced to 11 years in state prison for the rape of Denise L. Atualevao was released on parole in 1993,
violated parole, was returned to prison for four months, and was re-released on
parole in May 1994.
In August 1994,
Atualevao robbed his employer at knife point.
In September 1995, he was sentenced to prison for 13 years. Prior to his impending release in May 2002,
Atualevao was evaluated for treatment as an SVP and was sent to Atascadero State
Hospital.
Doctors Dana Putnam
and Dawn Starr, both forensic
psychologists, evaluated Atualevao for treatment as an SVP. Dr. Putnam first evaluated Atualevao in 2002,
and had written seven updated reports on him since then to ensure his findings
remained current. Dr. Putnam wrote
updated evaluations of Atualevao on (1) August 12, 2002; (2) March 18,
2005; (3) November 3, 2006; (4) June 18, 2007; (5) December 22, 2008; (6) June
26, 2009; and (7) November 30, 2010. He
wrote an addendum to the 2009 report on October 20, 2009. Dr. Putnam interviewed Atualevao for four
hours on April 29, 2002. He also
interviewed Atualevao in 2006, 2008, 2009, and 2010. He also reviewed documents related to the
rapes and hospital records to identify changes in risk assessment or diagnosis
over time.
Diagnosable
Mental Disorder
Dr. Putnam opined that
Atualevao currently has a diagnosable mental disorder within the meaning of
section 6600. That diagnosis is paraphilia
not otherwise specified (NOS).
Nonconsensual sexual activity with women is the basis of the
paraphilia. Dr. Putnam also
provisionally diagnosed Atualevao with antisocial personality disorder (because
he had no information about Atualevao’s conduct before the age of 15) and
alcohol dependence in a controlled setting.
Atualevao also scored over the threshold for psychopathy on the Hare
PCL-R test. This is significant in that
individuals who score high on psychopathy have an increased risk for sexual
recidivism.
A diagnosis of
paraphilia NOS with nonconsenting adults means that the individual is aroused
by the nonconsent of the victims, and it is considered rare. In Dr. Putnam’s opinion, this diagnosis
affected Atualevao’s volitional capacity in that the behavior continued despite
the risk to himself and his victims, despite arrest, probation, and prison, and
despite the negative effect on his wife, his child, and his ability to hold a
job. All this indicated a problem with
volitional capacity.
Dr. Putnam’s
subsequent evaluations of Atualevao did not change his opinions about his
diagnoses. For example, in 2005,
Atualevao was having significant difficulties following rules and maintaining
appropriate boundaries in the hospital setting.
He did not participate in the active phase of the sex offender treatment
that was being offered. In 2006, Dr.
Putnam discovered that Atualevao was having a romantic relationship with a
hospital police officer at Atascadero.
She had been removed from her position.
Inasmuch as it was clearly forbidden for patients to have such
relationships with staff members, and that engaging in such behavior was likely
to result in negative consequences for the staff person and him, this was
another indication of Atualevao’s antisocial tendencies at work. In addition, Atualevao had a “generally
negative response to offered sex offender treatment†and his behavior was
described as “often quite confrontational, negative, and sometimes outright
violent.â€
In 2008, Atualevao still
did not see anything wrong with writing to the rape victims. At this time, he admitted the 1978 rapes, but
blamed them on his drinking. He did not
admit the 1986 or 1987 rapes. Atualevao
admitted that that he masturbated once or twice a month, although he had
previously denied masturbating. This was
significant in that it demonstrated that Atualevao continued to have sexual
interest and arousal, and that he lied.
At this time, Atualevao advised Dr. Putnam for the first time that he
had been molested as a child. In 2009,
Atualevao in general did not participate in sexual offender treatment.
In 2010, Atualevao
became agitated, argumentative and violent over a dispute about a tennis
racket; he punched a bulletin board, breaking the Plexiglas. This showed that he was still energetic
despite aging, and that he had not mellowed much. In 2010, he also obtained oxycontin from a
peer, and admitted a romantic relationship lasting one to two years with
another female staff member. And,
learning that his brother had been abusive to his niece, Atualevao reported
that he was going to beat up his brother, indicating that “he still would be
very willing to resort to physical violence as a way of problem solving.†He also finally admitted all of the rapes,
although he never agreed with the versions of what happened reflected in the
police reports or victims’ statements.
Substantial
Risk of Sexual Reoffense
Dr. Putnam was also of
the opinion that there is a serious, well-founded, and substantial risk that
Atualevao will commit sexually violent, predatory acts in the future. Dr. Putman noted that Atualevao’s alcohol
dependence and antisocial characteristics that are part of his psychopathy
“work[] together with his paraphilia in such a way that it results in the
commission of . . . criminal sexual acts.†The alcohol consumption fuels disinhibition,
meaning that a person “will engage in behaviors [he] otherwise might not engage
in but have a desire to engage in.â€
Atualevao’s psychopathy, including his antisocial traits, “related to
him being willing to commit these kinds of offenses or being insensitive to the
victims and the willingness to engage in illegal behavior and
impulsivity.â€
Between 2002 and 2010,
Dr. Putnam also administered several updated versions of actuarial risk
instruments designed to quantify the type of risk posed by Atualevao for
sexually reoffending. He administered
the Static-99 in connection with his first evaluation of Atualevao. At that time, Atualevao tested at high risk
of reoffense. Dr. Putnam did a risk
reassessment in 2005. He noted some
reduction of risk due to Atualevao’s age (now 50) and considered whether there
was a “possibility of him engaging in treatment in the community.†He concluded “there was not sufficient basis
to believe that voluntary treatment in the community was likely or that it
would significantly reduce the possibility of future sexual offending.â€
Dr. Putnam reassessed
the risk in 2006 using two new tests, the Sex Offender Risk Appraisal Guide (SORAG),
and the Minnesota Sex Offender Screening Tool Revised (MnSOST-R). He was still of the opinion that Atualevao
was likely to engage in sexually violent predatory criminal behavior as a
result of his diagnosed mental disorder.
In December 2008, Dr. Putnam added a new tool, the Static-2002, to
reassess the risk. His opinion of
Atualevao’s risk did not change. In
2009, Dr. Putnam readministered the MnSOST-R, Static-99 and Static-2002. There was no change in his opinion.
In November 2009, Dr.
Putnam fine-tuned his assessment of Atualevao to incorporate recent changes in
the Static-99R, Static-2002R, MnSOST-R and the SORAG. In this most recent assessment, Atualevao
scored an eight on the Static-99R, placing him in the high risk category to
reoffend, and correlating with a rate of reoffense of 37.2 percent over five
years, and a rate of 46.3 percent over 10 years. On the Static-2002R, Atualevao scored a
seven, in the moderately high risk category, with a 25.2 rate of reoffense in
five years and a 35.8 rate in 10 years.
Over time, from Dr. Putnam’s first evaluation to his most recent
evaluation, his assessment of Atualevao’s risk to reoffend had changed. Dr. Putnam now saw Atualevao “as being at a
somewhat lower risk for re-offense than I initially did, but his risk for
re-offense still is moderate to high, but it’s not as high as it was when I
[first] officially evaluated him. [¶] . . . [¶] . . . [M]y
opinion still remains that he is a serious and well-founded risk of sexual re-offense.†As for amenability to treatment, Dr. Putnam
did not believe that Atualevao is amenable to voluntary treatment “in that he
does not express that he believes he has a current disorder related to his
sexual behavior. He does not believe
he’s in need of treatment. He does not
currently participate in treatment.â€
Dr. Dawn Starr shared
Dr. Putnam’s opinions. Dr. Starr
diagnosed Atualevao with paraphilia NOS with a focus on nonconsenting sex and
alcohol dependence, as well as personality disorder NOS with antisocial and
narcissistic features. All the diagnoses
were for current conditions. Dr. Starr
also opined that that Atualevao was likely to reoffend in a sexually violent
manner as a result of his diagnosed disorder.
She gave Atualevao a score of six in the Static-99R, which placed him in
the high risk category and correlated with a rate of reoffense of 31 percent
over five years and 41.9 percent over 10 years.
Atualevao’s
Testimony
Atualevao was called
as a witness by the district attorney.
He does not believe he has a mental disorder that makes him an SVP. “All I know is I’m not an SVP. I know myself. . . . [¶]
. . . [¶] You know, I rape people. . . . I’m a criminal. That’s what it was. Criminal.
Those are the things I did in the past.
A crime. You know, I was a thug.
[¶] And I don’t have a mental disorder, you know. I didn’t have to commit the crimes I did in
the past. No, I don’t have a mental
disorder.†He did not participate in the
phased treatment program for SVP’s at Atascadero. The program is not going to help him, because
he does not have a mental disorder. He
did attend Alcoholics Anonymous meetings.
Atualevao admitted
sending a number of love letters to Denise S. from prison. In prior testimony, Atualevao admitted that
on March 10, 1990, he wrote and mailed nearly identical love letters to both
Denise L. and Denise S. At trial, after
first denying that he ever wrote to Denise L., Atualevao eventually
acknowledged that he believed he sent letters to Denise L. as well, but he did
not remember doing so.
According to
Atualevao, his relationship with a female police officer assigned to Atascadero
was platonic, although they were basically girlfriend and boyfriend, and she
left her husband and children for him.
The relationship began when he commented favorably on her perfume and
continued after she resigned and he was transferred to Coalinga. It ended in 2008 or 2009, when “[a]nother
clinical social worker fall [sic] in
love with me.†However, in prior
testimony given on December 3, 2009, Atualevao claimed the relationship with
the police officer was still ongoing.
Atualevao had weekly,
one-hour individual therapy sessions related to his molestation as a child with
the social worker who was his girlfriend.
She asked him to be her boyfriend.
After thinking about it, he decided “[s]he wanted me so I went for
it.†Also, he was afraid she would put
something bad in his chart, and he was concerned she might lose her job. The relationship was discovered from phone
calls between them that were recorded while he was at Santa Rita Jail. This relationship, too, was platonic.
Atualevao’s
Experts
Doctors Jay Adams,
Ph.D., and Alan Abrams, M.D., testified for Atualevao. Neither doctor found anything in the rapes
themselves that showed Atualevao was specifically aroused by the nonconsent of
his victims. Neither doctor believed
that Atualevao suffered from a current mental disorder that predisposed him to
engage in sexually violent behavior.
Neither doctor believed Atualevao was in need of sex offender
treatment. According to both doctors,
Atualevao did not pose a serious and well-founded risk of reoffense if released
from custody.
DISCUSSION
Sufficiency of the Evidence
Atualevao contends there was insufficient “recent objective evidence†and
“current psychological symptoms†to support the jury’s implied findings that
Atualevao (1) suffers from a qualifying current mental disorder that (2)
renders him likely to reoffend. He also
argues the offenses were too remote to show a current mental disorder, and his
recent conduct “does not show current symptoms or recent objective evidence of
a serious difficulty in refraining from sexually violent predatory acts.â€
challenges the sufficiency of the evidence in proceedings under the SVPA. We apply the familiar standard applicable in
criminal cases. “[T]his court must
review the entire record in the light most favorable to the judgment to
determine whether substantial evidence supports the determination below. [Citation.]
To be substantial, the evidence must be ‘ “of ponderable legal
significance . . . reasonable in nature, credible and of solid
value.†’ †(People v.
Mercer (1999) 70 Cal.App.4th 463, 466.)
“In reviewing the record to determine the sufficiency of the evidence
this court may not redetermine the credibility of witnesses, nor reweigh any of
the evidence, and must draw all reasonable inferences, and resolve all
conflicts, in favor of the judgment.†(People
v. Poe (1999) 74 Cal.App.4th 826,
830.) We do not reassess the credibility
of experts or reweigh the relative strength of their conclusions. (Id. at p. 831.) We reverse if, and only if, no rational trier
of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th
238, 269.)
In our view, Atualevao’s reliance on
People v. Buffington (1999) 74
Cal.App.4th 1149 (Buffington) is
misplaced. In Buffington, the
defendant argued “that the SVPA’s evidentiary requirements for determining who
is suffering from a mental disorder and who is likely to reoffend are
unconstitutional because they are lower than other civil commitment
schemes. Buffington argue[d] that the
SVPA does not require ‘any recent objective
basis for a finding that an inmate is likely to reoffend.’ No current
psychological symptoms are needed and no recent
overt act is required, Buffington assert[ed].â€
(Id.
at p. 1159.) Rejecting that contention, the Court of
Appeal observed that “[c]ontrary to Buffington’s
claim, ‘current
psychological symptoms are needed’ to
establish that a person is an SVP [under the SVPA].†(Id. at p. 1161) The SVPA requires “ ‘
defendant’s condition’ and a ‘recent objective
basis for a finding that an inmate is likely to reoffend.’ †(Ibid.)
Nothing in Buffington’s analysis suggests expert testimony is insufficient to
establish the requisite recent objective indicia of the defendant’s condition,
or current psychological symptoms. On
the contrary, it found that the requirement of recent objective indicia of the
defendant’s condition was satisfied by the SVPA’s “comprehensive administrative
process for screening and evaluation, requiring professional assessments of
various diagnoses and specified risk factors; it then subjects these
assessments to a thorough judicial process, including a trial under the
standard of proof beyond a reasonable doubt.â€
(Buffington, supra, 74
Cal.App.4th at p. 1161; see also People v. Poe, supra, 74
Cal.App.4th at p. 833 [the SVPA requires a recent
objective
basis for commitment in the form of two experts credited by the trier of fact
that the person presently suffers from a mental disorder which predisposes him
to commit further sexually violent predatory crimes].)
We also reject Atualevao’s contention
that “all of the evidence of sexual violence by Mr. Atualevao is stale and
insufficient to support an inference that he suffers from a current serious
difficulty in refraining from such acts.â€
Doctors Putnam and Starr did not rely solely on Atualevao’s qualifying
offenses for their opinions that Atualevao suffered from paraphilia and other
mental disorders which rendered him likely to reoffend in a sexually violent
manner. The doctors explained their
reasons for arriving at these opinions, referencing not only Atualevao’s prior
sexual crimes but his behavior in the hospital over time, up to and including
his most recent conduct, as well as the results of actuarial analysis. It was for the jury to decide whether the
experts’ stated bases for their opinions – including actuarial calculations,
hospital record review, and observations of and interactions with Atualevao –
credibly substantiated their opinions.
Inasmuch as Atualevao has been in the secure setting of a state prison
or hospital since his last offense, the jury could reasonably infer from the
doctors’ testimony that Atualevao has been constrained from acting out in a
sexually violent predatory manner, yet he still suffers currently from a
chronic disorder. The experts’ testimony
provides substantial evidence supporting the
jury’s finding that Atualevao is an SVP.
Use of Term “Sexually Violent Predator†During Trial
Atualevao argues “[t]he repeated use of the inflammatory term ‘sexually
violent predator’ before the jury was a denial of href="http://www.fearnotlaw.com/">due process.†He specifically blames the Legislature for
this constitutional violation. He
argues: “Because the name="SR;6398">Legislature has written the term into the law, it is one that is
embedded in the instructions, embedded in the testimony of the witnesses, and
intoned repeatedly as a bell that rings incessantly from the first moment of
trial to the last. It is uttered
repeatedly from the start of voir dire to the concluding recitation of the law. It is the subject of the opening statements and
closing arguments of counsel. It even
appears in capital letters on the verdict form.
And yet it is unnecessary.†He
explains: “Sex and violence are the two
most primal of concepts, occupying the lower brain functions and exploited in
the media for their hypnotic and emotional impact. Even in a trial that necessarily involves
facts of sex and of violence, there is no justification for linking these
concepts in a slogan, an epithet, ‘sexually violent predator.’ †He adds:
“There is no reason why the jury could not be instructed in the language
of [section 6600, subdivision (e)] without reference at all to the term
‘predatory.’ There is no reason why the
arguments of counsel and the testimony of witnesses could not be framed in the
terms of the definition with no reference to the term ‘predator.’
[¶] Similarly, the term ‘6600’ may be used at any time when the term
‘sexually violent predator’ is used to designate a person subject to commitment
under [section 6600].â€
this constitutional violation. He
argues: “Because the
embedded in the instructions, embedded in the testimony of the witnesses, and
intoned repeatedly as a bell that rings incessantly from the first moment of
trial to the last. It is uttered
repeatedly from the start of voir dire to the concluding recitation of the law. It is the subject of the opening statements and
closing arguments of counsel. It even
appears in capital letters on the verdict form.
And yet it is unnecessary.†He
explains: “Sex and violence are the two
most primal of concepts, occupying the lower brain functions and exploited in
the media for their hypnotic and emotional impact. Even in a trial that necessarily involves
facts of sex and of violence, there is no justification for linking these
concepts in a slogan, an epithet, ‘sexually violent predator.’ †He adds:
“There is no reason why the jury could not be instructed in the language
of [section 6600, subdivision (e)] without reference at all to the term
‘predatory.’ There is no reason why the
arguments of counsel and the testimony of witnesses could not be framed in the
terms of the definition with no reference to the term ‘predator.’
[¶] Similarly, the term ‘6600’ may be used at any time when the term
‘sexually violent predator’ is used to designate a person subject to commitment
under [section 6600].â€
Although Atualevao
analogizes the use of sexually violent predator terminology to instances of
prosecutorial misconduct, he appears to acknowledge that, in this case, the
prosecutor is not at fault. “[I]t is the
hand of the Legislature that has name="SR;6559">injected this misconduct into the
trial. But the effect on the fairness of
the proceeding, the damage to the due process rights of the person against whom
the forces of the state have been deployed in trial is not less, but more when
the source of the misconduct is the drafters of
laws.â€
trial. But the effect on the fairness of
the proceeding, the damage to the due process rights of the person against whom
the forces of the state have been deployed in trial is not less, but more when
the source of the misconduct is the drafters of
laws.â€
Atualevao is correct that the
Legislature, as the drafter of the law to which Atualevao’s conduct and mental
disorder make him subject, specifically defines the terms “sexually violent predator,â€
“sexually
violent offense,†and “predatory.†(§
6600, subds. (a)(1), (b) & (e).) And, as he
correctly points out, the trial necessarily raised the subject of his acts of
sex and violence. We conclude there was
no error for the parties, the court, or the witnesses to use the statutorily
defined terms “sexually violent predator,†“sexually violent offense,†or
“predatory,†and variations thereof to describe him or his conduct. We conclude defendant has not demonstrated
the type of error, or the kind of prejudice, a court is empowered to remedy by
reversal of the judgment. In our view,
Atualevao’s arguments would be better addressed to the Legislature, which
created the nomenclature to which he objects.
Asserted
Instructional Errors
Next, Atualevao contends the jury instructions
were prejudicially erroneous in two respects.
First, he argues that CALCRIM No. 3454 “inherently reverses the burden
of proof†by asking the jury “to determine whether the health and safety of
others had been ‘ensured.’ †Second, he
argues that CALCRIM No. 3454 reduces the prosecution’s burden of proof by
asking the jury to determine if the risk of reoffense is “well-founded.†Before turning to
the merits of Atualevao’s contentions, we set forth the legal principles which
govern our analysis. First, “[w]e
conduct independent review of issues pertaining to instructions.†(People v. Cooksey (2002) 95
Cal.App.4th 1407, 1411.) Next, we
determine the correctness of the challenged instruction “in the context of the
instructions as a whole and the entire record,†and not “ ‘ “in artificial
isolation.†’ †(People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1155.) Finally, “[a] defendant challenging an
instruction as being subject to erroneous interpretation by the jury must
demonstrate a reasonable likelihood that the jury understood the instruction in
the way asserted by the defendant.†(People
v. Cross (2008) 45 Cal.4th 58, 67–68.)
As the court below instructed, CALCRIM
No. 3454 provides in relevant part: “The
petition alleges that [Atualevao] is a ‘sexually violent predator.’ [¶] To
prove this allegation, the People must prove beyond a reasonable doubt that:
[¶] 1. He has been convicted of committing sexually violent offenses against
one or more victims; [¶] 2. He has a
diagnosed mental disorder; [¶] 3. As a result of that diagnosed mental disorder,
he is a danger to the health and the safety of others because it is likely that
he will engage in sexually violent predatory criminal behavior; [¶] AND [¶]
4. It
is necessary to keep him in custody in a secure facility to ensure the health
and safety of others.â€
name="_ftnref2" title="">[2] (Italics added.)
Atualevao correctly notes the
italicized language contained in paragraph 4 should be given
sua sponte if evidence
is presented about amenability to voluntary treatment. (2 Judicial Council of Cal., Crim. Jury
Instns. (2012) Bench Notes to CALCRIM No. 3454, pp. 1051–1052;
Cal.App.4th 765, 777.) Sua sponte
instruction is required because our Supreme Court has stated or observed in
several cases that “evidence of amenability to voluntary treatment, if such
evidence is presented, is ‘relevant to the ultimate determination whether the
person is likely to engage in sexually violent predatory crimes if released
from custody,’ †thereby indicating that “this is not a matter
constituting a theory of defense but is essential to the determination to be
made by the trier of fact, and thus constitutes a general principle
jury’s understanding of the case.†(
court declined to decide whether such an instruction must be given sua sponte
when evidence of amenability to treatment is not presented. (Id.
at p. 777, fn. 3.) Atualevao contends
that the above-italicized clause in CALCRIM No. 3454 “unfortunately and
mechanically adopts the language from [Grassini]
that does not convey the idea that is central to the holding.†However, the jury was not presented with any
evidence that Atualevao would voluntarily seek treatment for his mental
disorder in the community if he were released.
On the contrary, the evidence showed Atualevao did not consider himself
mentally disordered or in need of sex offender treatment, and neither did his
expert witnesses.
title="">[3] Since the expert opinion suggested Atualevao
was not amenable to treatment,
whether inside or outside the institutional setting, the instruction’s failure
to mention amenability to treatment could not have prejudiced him.
As for Atualevao’s main point, that
CALCRIM No. 3454 reverses the burden of proof, we disagree. Atualevao’s argument singles out one clause
of the instruction for scrutiny and analyzes it out of context. Viewed in light of the instruction as a
whole and the evidence adduced at trial, rather than in artificial isolation,
it is plain to us that the instruction
asked the jury to determine whether the evidence presented proved beyond a
reasonable doubt that (1) Atualevao had a diagnosed mental disorder, (2) that
the mental disorder made it likely he would reoffend, and (3) whether
institutionalization was necessary to make sure he did not reoffend again in
the community. Contrary to Atualevao’s
suggestion, the instruction did not require the jury to decide the question of
whether “the health and safety of others has been ensured.†In our view, it is not reasonably likely that
the jury would have understood the instruction to mean “a person must be
committed unless they can ensure the safety of the community . . .
effectively [creating] a presumption of dangerousness.†The instruction does not shift the burden of
proof to the defendant. No error
occurred.
Atualevao also argues
CALCRIM No. 3454 reduces the prosecution’s burden of proof by asking the jury
to determine if the risk of reoffense is “well-founded.†The statute does not use the term
“well-founded risk.†That phrase
apparently has its genesis in
(2002) 27 Cal.4th 888 (Ghilotti),
where the Supreme Court concluded “the phrase ‘likely
to engage in acts of sexual violence’ (italics added), as used in section 6601,
subdivision (d), connotes much more than the mere possibility that the
person will reoffend as a result of a predisposing mental disorder that
seriously impairs volitional control. On
the other hand, the statute does not require a precise determination that the
chance of reoffense is better than even.
Instead, an evaluator applying this standard must conclude that the
person is ‘likely’ to reoffend if, because of a current mental disorder which
makes it difficult or impossible to restrain violent sexual behavior, the
person presents a substantial danger, that is, a serious and
that he or she will commit such crimes if free in the community.†(Id.
at p. 922.)
Tracking Ghilotti’s language, CALCRIM No. 3454 as given here provided: “A person is likely to engage in sexually
violent predatory criminal behavior if there is a substantial, serious, and
engage in such conduct if released into the community. The likelihood that the person will engage in
such conduct does not have to be greater than 50 percent.†(Italics added.) Atualevao argues that this instruction can
mislead the jury into thinking it did not have to find the dangerousness
element beyond a reasonable doubt.
Atualevao’s argument is similar to
Justice Werdegar’s separate concurring opinion in Ghilotti in which she disagreed with the majority opinion’s
statutory interpretation of the word “likely.â€
There she observed: “While it may be
theoretically possible to ask a jury whether, beyond a reasonable doubt, there
is a ‘substantial danger’ of reoffense, the use of such a low-risk threshold
threatens to vitiate the effect of the high evidentiary standard and unanimity
requirement. Because the low
‘substantial danger’ standard will virtually always be met, the
requirement of proof beyond a reasonable doubt fades radically in
significance. If the person has
committed prior violent sex crimes and continues to suffer from a mental
disorder predisposing him
or her to further sex crimes, a ‘substantial danger’ is proven beyond any
doubt.†(Ghilotti, supra, 27 Cal.4th at p. 932 (conc. opn. by Werdegar,
J.).) The majority considered and
expressly rejected Justice Werdegar’s criticism of its interpretation,
stating: “[W]e
disagree with Justice Werdegar’s underlying premise.
Contrary to her assumption, it is not incongruous to require a unanimous jury
to be convinced beyond reasonable doubt that one (1) previously was convicted
of qualifying violent sex crimes, (2) has a mental disorder which seriously
impairs volitional control of violent sexual impulses, and (3) as a result of
the disorder, presents a serious and well-founded risk of committing new acts
of criminal sexual violence.†(
In People v. Roberge (2003) 29 Cal.4th 979, the Supreme Court held that
the definition of “likely†adopted in Ghilotti
also “applies
at trial, where the trier of fact decides whether the convicted sex
offender, after serving the requisite prison term, is to be involuntarily
committed.†(Roberge, at p. 982.) Justice
Werdegar joined in the Roberge
opinion. Accordingly, we reject
Atualevao’s argument that the definition of “likely†provided this jury
undermined the reasonable doubt standard.
In addition, we note that the jury would have
had to disregard the instructions as a whole which emphasized that the People
must prove every element of the charge beyond a reasonable doubt in order
arrive at Atualevao’s interpretation of the instruction. We find no reasonable possibility the jury would
have taken the word “well-founded,†which along with “serious†and
“substantial†describe the likelihood of the risk of reoffense, and apply it to
the People’s burden of proof. No error
appears.
and Double Jeopardy
Atualevao contends the
indeterminate commitment prescribed by the SVPA violates due process and the ex
post facto clause. He acknowledges our
Supreme Court has rejected those arguments in People v. McKee (2010) 47 Cal.4th 1172, 1188–1195 (
bound by those rulings. (
(1962) 57 Cal.2d 450, 455.)
Atualevao contends the Supreme Court
has not ruled on his double jeopardy claim.
However, in rejecting the ex post facto claim, the court ruled that the
amended SVPA was not punitive. (>McKee I, supra, 47 Cal.4th at p.
1195.) That ruling, which binds us,
forecloses Atualevao’s double jeopardy claim as well.
1195.) That ruling, which binds us,
forecloses Atualevao’s double jeopardy claim as well.
Indeterminate Commitment
Atualevao contends the indeterminate
commitment prescribed by the amended SVPA violates equal protection. In McKee
I our Supreme Court found that the
amended SVPA was potentially unconstitutional in that similarly situated
involuntary committees under other statutory commitment regimes are not treated
the same way as SVP’s with regard to commitment terms and burdens of proof for
release. (McKee I, supra, 47 Cal.4th at pp. 1203, 1207.) The court remanded that case for an
evidentiary hearing to allow the People an opportunity to justify the disparate
treatment.
Upon remand in McKee I, the
trial court held a 21-day evidentiary hearing on the constitutional
justification for the disparate treatment of SVP’s and concluded the People had
met their burden by presenting evidence to “support a reasonable perception by
the electorate that SVP’s present a substantially greater danger to society
than do [mentally disordered offenders (MDO’s)] or [persons found not guilty by
reason of insanity (NGI’s)].†(See People
v. McKee (2012) 207 Cal.App.4th 1325, 1330–1331 (McKee II).) The evidence demonstrated that SVP’s pose a
higher risk of reoffending than MDO’s or NGI’s (id. at pp. 1340–1342),
victims of sexual offenses suffer greater trauma than victims of other offenses
due to the intrusiveness and enduring
social and neuropsychological impacts of sexual assault or abuse (id.
at pp. 1342–1344), and SVP’s have significantly different diagnoses,
treatment plans, motivations, degree or extent of compliance with treatment
directives, and success rates than MDO’s and NGI’s (id. at pp.
1344–1347). The trial court concluded
the evidence supported a reasonable inference that an indeterminate, rather
than a determinate (e.g., two-year), term of civil commitment improves, rather
than detracts from, the success of treatment plans for SVP’s. (Id. at p. 1347.)
In McKee II, the Court of Appeal affirmed the
trial court’s decision and upheld the indeterminate commitment, finding that
the disparate treatment of SVP’s, as contrasted with MDO’s and NGI’s, was
warranted because of the greater trauma suffered by victims of sexually violent
offenses, the greater likelihood of recidivism by SVP’s, and the diagnostic and
treatment differences between SVP’s and MDO’s/NGI’s. (McKee
II, supra, 207 Cal.App.4th at p. 1347.)
In October 2012, our Supreme Court denied a petition for review in McKee
II (McKee II, supra, 207 Cal.App.4th 1325, review den. Oct. 10,
2012), and for our purposes the McKee proceedings are now final. Neither Atualevao nor the People have
submitted supplemental briefing regarding the proper disposition of this
appeal.
We concur with the reasoning and
holding in McKee II. Moreover, we conclude the Supreme Court’s
direction in the orders of remand to “avoid an unnecessary multiplicity of
proceedings†indicated the court’s intention that the proceedings in McKee would
resolve the issue as a matter of law for all SVP’s, not merely for the
defendant in that case alone or for SVP’s convicted of crimes against children,
like him. In light of the Supreme
Court’s denial of review in McKee II, we conclude that Atualevao’s
recommitment under the SVPA does not violate his equal protection rights. (See People v. McKnight (2012) 212 Cal.App.4th 860,
863–864.)
>
DISPOSITION
The order for commitment finding
Atualevao to be an SVP within the meaning of section 6600 et seq. and
committing him to the custody of the State Department of Mental Health is
affirmed.
______________________
Marchiano, P.J.
We concur:
______________________
Margulies, J.
______________________
Dondero, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The instruction
tracks the language of the statute.
Section 6600 defines a sexually violent predator as someone “who has
been convicted of a sexually violent offense against one or more victims and
who has 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.†(§ 6600, subd. (a)(1), italics added.) It defines a diagnosed mental disorder as a
“condition affecting the emotional or volitional capacity that predisposes the
person to the commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety
of others.†(§ 6600, subd. (c),
italics added.)
