P. v. Barbour

 

 

 

 

 

 

 

Filed 5/6/13  P.
v. Barbour CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Yuba)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ROBERT SEAN BARBOUR,                           Defendant and Appellant.

C061291   (Super. Ct. No. MHO02001)

 

 

 

            Defendant Robert
Sean Barbour originally challenged, on due
process and equal protection grounds, the constitutionality of his
indeterminate commitment pursuant to Proposition 83, which modified the terms
by which sexually violent predators (SVP’s) can be released from civil
commitment under the Sexually Violent
Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.; unless
otherwise stated, all statutory references that follow are to the Welfare and
Institutions Code).  In an unpublished
opinion based on the Supreme Court’s decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I), we found no due process violation and we remanded the
matter to the trial court to determine whether, under the equal protection
clause, the People could justify treating SVP’s differently than mentally
disordered offenders (MDO’s) and persons committed after being found not guilty
by reason of insanity (NGI’s) since no evidence was introduced in the trial
court on the equal protection issue.  (>People v. Barbour (May 6, 2010, C061291) [nonpub. opn].)

            The Supreme Court
granted defendant’s petition for review with directions to us to vacate our
unpublished decision.  To avoid
duplicating remand proceedings already ordered in McKee I, which allowed the People an opportunity to justify
treating SVP’s, MDO’s and NGI’s differently under established equal protection
principles, the Supreme Court also suspended further proceedings in defendant’s
case pending finality of the McKee I remand
proceedings. 

            The remand
proceedings in McKee I are now
final.  (See People v. McKee (2012) 207 Cal.App.4th 1325, review den. Oct. 10, 2012, S204503 (McKee II).)  In McKee
II, the Fourth Appellate District
affirmed the trial court’s determination upon remand that the People had met
their burden under the equal protection clause to justify treating SVP’s differently
from MDO’s and NGI’s.  (>Id. at p. 1331.)

            Based on >McKee I and McKee II, we reject defendant’s due process and equal protection
challenges to his indeterminate commitment as an SVP.  We therefore affirm the judgment in its
entirety.

Facts and Proceedings

            Defendant was
convicted in 1993 and 1995 of committing lewd and lascivious acts with a child
under the age of 14 (Pen. Code, § 288, subd. (a)).  In 2008, the Sacramento County District
Attorney’s Office filed a petition to extend defendant’s commitment as an
SVP.  The petition alleged defendant’s
convictions and further alleged that two psychologists had evaluated defendant
and found him to be an SVP. 

            At
trial, psychologists
diagnosed defendant with two mental disorders, pedophilia and fetishism.  They testified that defendant had a
substantial, well-founded risk of reoffending and they did not believe
defendant could control his behavior.  A
psychologist testifying for defendant challenged the adequacy of the
evaluations to predict whether defendant could control his behavior or whether
he would reoffend, but conceded he had not met or evaluated defendant. 

            The
jury found the allegations in the petition to be true, and the trial court
ordered defendant committed for an indefinite term as an SVP.  Defendant appealed the indeterminate
commitment on equal protection and due process grounds. 

Discussion

I

Due Process Claims

            Defendant
contends the SVPA “creates an unacceptable risk that a person committed under
the Act who no longer qualifies as a sexually violent predator will have his
commitment continued in violation of his right to due process.  In addition, the mechanisms for judicial
review of defendant’s confinement under sections 6605 and 6608 are not
constitutionally adequate and a person committed under the Act bears the burden
of proof by a preponderance of the evidence in order to be released under
section 6608.” 

            Under
section 6605, the Department of Mental Health (DMH) can file a petition for
conditional or unconditional release if it determines the individual no longer
meets the definition of an SVP or can be released to a less restrictive
alternative.  A petition under this
section can be made only by DMH.  (§
6605, subd. (b).)  If the state opposes
the release, it must prove beyond a reasonable doubt that the committed person
remains an SVP.

            An
individual can petition for release without DMH authorization.  (§ 6608.) 
At the hearing held under section 6608, the petitioner must show by a
preponderance of the evidence (§ 6608, subd. (i)) that he will not be a danger
to the health and safety of others in that it is not likely that he will engage
in sexually violent criminal behavior due to his diagnosed mental disorder.  (§ 6608.)

            As
we previously found, the Supreme Court’s decision in McKee I resolves all of defendant’s due process challenges.  In McKee
I, the petitioner raised the same claim that defendant makes here, namely,
that due process is violated because his commitment is indefinite and he bears
the burden of showing by a preponderance of the evidence that he is no longer
an SVP.  (McKee I, supra, 47 Cal.4th at pp. 1188-1191.)  The McKee
I court rejected that claim.  (>Id. at p. 1191.)  Relying on Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694], a case
involving commitment proceedings for those adjudged not guilty by reasons of
insanity, McKee I concluded that “the
requirement that [an individual], after an initial commitment, must prove by a
preponderance of the evidence that he is no longer an SVP does not violate due
process.”  (47 Cal.4th at p. 1191.)  We are bound by that decision.  (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

            >McKee I also rejected the claim,
identical to one defendant raises here, that the commitment statutes are
unconstitutional because they authorize an appointment of experts only when DMH
authorizes an individual to petition for release (§ 6605, subd. (d)), not when
the individual files a petition without DMH approval.  (§ 6608, subd. (a).) (McKee I, supra, 47 Cal.4th at pp. 1192-1193.)  The court acknowledged that there was no
explicit provision to provide experts when an individual petitions for release,
but found that the statutory language of the SVPA and legislative history
evidenced an intent to appoint experts to insure that a commitment lasts no
longer than necessary.  (>Ibid.) 
The court concluded, “Given that the denial of access to expert opinion
when an indigent individual petitions on his or her own to be released may pose
a significant obstacle to ensuring that only those meeting SVP commitment
criteria remain committed, we construe section 6608, subdivision (a), read in
conjunction with section 6605, subdivision (a), to mandate appointment of an
expert for an indigent SVP who petitions the court for release.”  (Id.
at p. 1193.)  Consequently, the court
concluded, there was no violation of due process.  (Ibid.) 

            In
sum, McKee I disposes of defendant’s
due process claims.  The SVP commitment
process does not violate due process guarantees.

II

Equal Protection Claims

            Defendant
contends that his equal protection rights were violated because SVP’s are
treated less favorably than those committed under other statutes, such as MDO’s
(Pen. Code, § 2960) and NGI’s (Pen. Code, § 1026 et seq.).  In McKee
I, the Supreme Court found that SVP’s, MDO’s, and NGI’s are similarly
situated for equal protection purposes because each are involuntarily committed
to protect the public from individuals who are dangerously mentally ill.  (McKee
I, supra, 47 Cal.4th at pp. 1202-1203, 1207.)  The court found no question that after the
initial commitment SVP’s were treated less favorably because they were given
indeterminate commitments with the burden of proving they should be released
whereas MDO’s and NGI’s were committed for a determinate term and had the right
to be released unless the People proved beyond a reasonable doubt that he or
she should be recommitted.  (>Ibid.) 


            To
justify the disparate treatment of SVP’s, the Supreme Court in >McKee I emphasized the People had to
show on remand “that, notwithstanding the similarities between SVP’s and MDO’s,
the former as a class bear a substantially greater risk to society, and that
therefore imposing on them a greater burden before they can be released from
commitment is needed to protect society.” 
(McKee I, supra, 47 Cal.4th at
p.1208.)  Whether the People carried
their burden under the equal protection clause for such differential treatment
was resolved in McKee II.  (McKee
II, supra, 207 Cal.App.4th at pp. 1339, 1347-1348.) 

            In
McKee II, the Fourth Appellate
District affirmed the trial court’s determination that “the People on remand
met their burden to present substantial evidence, including medical and
scientific evidence, justifying the amended Act’s disparate treatment of SVP’s
(e.g., by imposing indeterminate terms of civil commitment and placing on them
the burden to prove they should be released).” 
(McKee II, supra, 207
Cal.App.4th at p. 1347.)  The People
showed “ â€˜that the inherent nature of the SVP’s mental disorder makes
recidivism as a class significantly more likely[;] ... that SVP’s pose a
greater risk [and unique dangers] to a particularly vulnerable class of
victims, such as children’; and that SVP’s have diagnostic and treatment
differences from MDO’s and NGI’s, thereby supporting a reasonable perception by
the electorate that passed Proposition 83 that the disparate treatment of SVP’s
under the amended Act is necessary to further the state’s compelling interests in
public safety and humanely treating the mentally disordered.”  (Ibid.)  Based on the above, the court concluded “the
disparate treatment of SVP’s under the Act is reasonable and factually based
and was adequately justified by the People at the evidentiary hearing on
remand.”  (Id. at p. 1348.)  The SVPA,
therefore, did not violate equal protection. 
(Ibid.)  

            As
in McKee II, we agree defendant’s
equal protection rights were not violated by treating him differently than
MDO’s and NGI’s for commitment purposes because the indeterminate commitment
procedures legitimately advance a compelling state interest in protecting the
public from an SVP like defendant who carries a substantial, well-founded risk
of reoffending and cannot control his behavior and who poses a greater risk to
a particularly vulnerable class of victims such, as here, children.  We therefore reject defendant’s equal
protection challenge.

Disposition

            The
judgment is affirmed.

 

 

 

                                                                                              HULL                           ,
Acting P.  J.

 

 

 

We concur:

 

 

 

          ROBIE                          , J.

 

 

 

          BUTZ                            , J.