P. v.
Boyle
Filed 12/7/12
P. v. Boyle CA1/4
Opinion following order
vacating prior opinion
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
CORNELIOUS JOSEPH BOYLE,
Defendant
and Appellant.
A117860
(Del
Norte County
Super. Ct. No. CRF049956)
The trial court found
that appellant Cornelious Joseph Boyle was a
to be committed indefinitely to Atascadero State Hospital.
He appeals, raising due process, ex
post facto, double jeopardy and equal protection challenges to his
commitment pursuant to an amended version of the Sexually Violent Predator Act
(SVPA). (See Welf. & Inst. Code,
petition should have been dismissed for material legal error; that his counsel
was ineffective at his court trial; and that there was insufficient evidence of
qualifying offenses to support his commitment.
In July 2008, we
affirmed the commitment order. In August 2008, the California Supreme Court
granted Boyle’s petition for review but deferred briefing until it issued its
decision in People v. McKee, a case
then pending on the state high court’s docket.
In January 2010, the court issued its McKee decision, which remanded that matter to the trial court for a further hearing on the equal protection
issue. (People v. McKee (2010) 47 Cal.4th 1172, 1208-1211 [
transferred Boyle’s case back to our
court with directions to vacate our July 2008 decision and reconsider the
matter in light of McKee
Mindful of the trial court hearing that had not then been held in
McKee’s case, the California Supreme Court also ordered us to suspend
proceedings in Boyle’s case until the
trial court proceedings in the McKee case
and any proceedings in which it was consolidated were final, including any
appeals and matters before the California Supreme Court. As directed, we suspended proceedings in May
2010 until a final decision in McKee would
trigger reconsideration of our July 2008 decision.
After the San Diego
County Superior Court conducted the required evidentiary hearing, it confirmed
McKee’s indeterminate commitment as a sexually violent predator. McKee appealed that trial court order to the
Fourth Appellate District, which affirmed the commitment order in July
2012. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1350 [
Supreme Court was denied and the Fourth Appellate District issued its
remittitur in McKee II, which is now
final.
title="">[2]
Accordingly, we have lifted the suspension.
With the benefit of the
California Supreme Court decision in McKee
I on several issues before us and the
subsequent decision of the Fourth Appellate District after the trial court’s
protection issue in McKee II, we now
reconsider our earlier decision in the matter before us. After reconsideration, we affirm the order of
commitment.
I. FACTS
In
April 1993, appellant Cornelious Joseph Boyle befriended a seven-year-old boy
in Virginia, “talk[ed] dirty†to him, and touched
the child’s private parts. He was
arrested and charged with aggravated
sexual battery. (See Va. Code,
§ 18.2-67.3.) Boyle pled guilty to
this offense and was sentenced to a Virginia penitentiary.
In July 2004, a woman
reported to Virginia authorities that Boyle had kissed her 10-year-old
daughter and fondled the girl’s breast.
Soon after the incident, Boyle disappeared. In October 2004, he was found living in California and was arrested on a Virginia warrant.
Boyle was charged with
failure to register as a sex offender and possession of child pornography. (See Pen. Code, §§ 667, subds. (b)-(i),
1170.12; former Pen. Code, §§ 290, subd. (g)(2) [as amended by Stats.
2003, ch. 634, § 1.3], 311.11, subd. (a) [as amended by Stats. 2001,
ch. 559, § 1], 667.5, subd. (b) [as amended by Stats. 2002, ch. 606,
§ 2].) In November 2004, he pled
guilty to failing to register and admitted a prior felony conviction for
enhancement purposes. He was sentenced
to prison for four years. (See former
Pen. Code, §§ 290, subd. (g)(2), 667.5, subd. (b).) In 2005, Boyle pled guilty to a Virginia aggravated sexual battery charge
stemming from the July 2004 incident. He
received a prison sentence for this conviction from the Virginia court.
In the fall of 2006,
Boyle was scheduled to be released from state
prison in California. During the
summer and early fall, four clinical psychologists evaluated him to determine
whether he met the statutory definition of a sexually violent predator—a
sexually violent offender with a serious mental disorder. (See § 6600, subd. (a)(1).) One concluded that he did not, but the other
three found that he did. The state
Department of Mental Health (DMH) recommended that Boyle be committed as a
sexually violent predator. Accordingly,
in October 2006, a petition was filed seeking Boyle’s civil commitment pursuant
to the SVPA. (See §§ 6250,
6600-6609.3.) The petition alleged that
he had been convicted of aggravated sexual batteries in Virginia stemming from the 1993 and 2004
incidents. In February 2007, the trial
court found that there was probable cause to believe that Boyle was a sexually
violent predator. (See § 6602.) After he waived his right to a jury trial on
the petition, the court found in April 2007 that he was a sexually violent
predator and ordered him committed indefinitely to Atascadero State Hospital.
II.
CONSTITUTIONAL CHALLENGES
A. Statutory Background
On appeal, Boyle raises
several constitutional challenges to an amended version of the SVPA. He contends that the amended SVPA runs afoul
of his federal and state constitutional rights to due process and equal
protection of the laws, as well as violating constitutional bans on
immediate release, reasoning that because the statutory authority underlying
the commitment order does not meet constitutional muster, his commitment was
invalid. In order to understand Boyle’s
claims of error on appeal, we set out an overview of the SVPA as originally
enacted and as amended in November 2006.
The original version of the SVPA took effect in 1996. (See Stats. 1995, ch. 763, § 3, p. 5922.) At that time, the SVPA provided for a two-year civil commitment of
any person who was tried and found beyond a reasonable doubt to be a sexually
violent predator. (
I,
I, supra, 19 Cal.4th at pp. 1143, 1147; see former §§ 6603, subd.
(d), 6604 [Stats. 1995, ch. 763, § 3, pp. 5925-5926].) When the two-year term of commitment expired,
it could be extended if a new jury trial was conducted at which the People
again proved beyond a reasonable doubt that the committed person remained a
sexually violent predator. (Former §§ 6604, 6604.1, 6605, subds. (d), (e);
I,
5.) In
practice, the extension procedures of the original SVPA often resulted in a new
determination of sexually violent predator status every two years. (See People v.
785-786; People v. Munoz (2005) 129 Cal.App.4th 421,
429-430.)
The original SVPA was designed to ensure
that a committed person did not remain confined any longer than he or she
suffers from a mental abnormality rendering him or her unable to control his or
her dangerousness. (
I,
for conditional release to a
community treatment program and the state was required to conduct an annual
review of a committed person’s mental status that could lead to unconditional release. (McKee I, supra,
47 Cal.4th at p. 1186; see former §§ 6605,
6608.) In 1999,
the California Supreme Court upheld the original SVPA against various
constitutional challenges, relying on the reasoning of a United States Supreme
Court decision upholding a similar Kansas law against federal constitutional attack. (Hubbart
I, supra, 19 Cal.4th at pp. 1151-1179; see Kansas v. Hendricks (1997) 521 U.S. 346,
350, 356-371 (Hendricks).)
Since
then, the SVPA has been amended several times, most significantly in November
2006. Shortly after Boyle’s civil
commitment petition was filed, California voters amended the SVPA when they approved Proposition
83. (
I,
version of the SVPA specifies an indeterminate term of civil commitment, rather
than the two-year term set out in the original law. (See §§ 6604, 6604.1; McKee I, supra,
47 Cal.4th at pp. 1186-1187.)
Proposition 83 did not change the requirement that sexually violent
predator status at an initial commitment proceeding had to be proven by the state
beyond a reasonable doubt. (§ 6604.) However, the amended SVPA provides that a
committed person will remain in custody until he or she successfully meets the
burden of proving by a preponderance of evidence that he or she is no longer a
sexually violent predator or until the DMH determines he or she no longer meets
the definition of a sexually violent predator.
(§§ 6604, 6608; McKee I, supra,
47 Cal.4th at p. 1187.)
The
amended SVPA continues to require annual evaluations of whether or not a committed
person remains a sexually violent predator.
(§ 6605, subd. (a); McKee I, supra,
47 Cal.4th at p. 1187.)
This annual examination may trigger a DMH authorization for the
committed person to petition for conditional release or unconditional
discharge. (See § 6605, subds. (a),
(b); McKee I, supra,
47 Cal.4th at p. 1187.)
At trial pursuant to a DMH-authorized petition, if the state opposes the
petition, it must carry the burden of proving beyond a reasonable doubt that
the committed person’s diagnosed mental disorder remains such that he or she is
a danger to the health and safety of others and is likely to engage in sexually
violent criminal behavior if discharged.
(§ 6605, subd. (d).)
Even
if the DMH does not authorize a
petition, the committed person may file an unauthorized petition for
conditional release or unconditional discharge with the court, but different
procedures apply. In these circumstances, the trial court
summarily denies the petition if it is frivolous or fails to allege sufficient
facts to warrant a full hearing on it.
(§ 6608, subd. (a); McKee I, supra,
47 Cal.4th at p. 1187.)
At all hearings on the petition, the committed person has the burden of
proof to show that he or she is no longer a sexually violent predator based on
a preponderance of evidence.
(§ 6608, subd. (i).) If the
trial court denies an unauthorized petition, the committed person is barred
from filing a new petition for one year.
(§ 6608, subd. (h); McKee I, supra,
47 Cal.4th at p. 1187.)
The
amended SVPA
title="">[4] was in effect in April 2007, when Boyle was committed as a sexually
violent predator. Thus, he was ordered
to be committed for an indefinite term of treatment and confinement with the
DMH according to the terms of the amended law.
(See §§ 6604, 6604.1.) This
was proper. The date of adjudication of
sexually violent predator status—not the filing date of the underlying
petition—is the event determining whether any retroactive application of the
law has been made. (People v.
514; see People v. Shields
(2007) 155 Cal.App.4th 559, 563 [interim SVPA].) Amendments to the SVPA apply prospectively to
all proceedings pending at the time that those amendments became
effective. (See, e.g., People v
792-796; Bourquez v. Superior Court (2007)
156 Cal.App.4th 1275, 1288-1289.) As the
trial court’s April 2007 finding of sexually violent predator status was the
critical event in Boyle’s case, the current version of the SVPA—including those
amendments that became effective in November 2006 with the passage of
Proposition 83—applies to this matter.
In this appeal, Boyle raises various
constitutional challenges to the amended version of the SVPA, arguing that it
differs so significantly from the original SVPA that the California Supreme
Court upheld in 1999 that it now fails to pass constitutional muster. (See Hubbart
I, supra, 19 Cal.4th at pp. 1151-1179.) With the key differences between the original
and amended SVPA in mind, we address each constitutional challenge in turn.
B. Due Process
First, Boyle raises a
federal constitutional due process claim, challenging the state’s right to
commit him for an indefinite term. He
argues that the amended SVPA violates due process because it makes it too difficult
for a committed person to obtain release from indefinite commitment. He complains that the amended SVPA improperly
shifts the burden of proof from the state to him to prove that he no longer
qualifies as a sexually violent predator in cases not involving DMH-authorized
petitions. (See U.S. Const., 14th Amend.)
deprivation of one’s liberty—the fundamental freedom from bodily
restraint—requiring due process protection.
(Addington v. Texas (1979) 441 U.S. 418, 425; see Jones v.
United States (1983) 463 U.S. 354, 361.)
The state must have a constitutionally adequate purpose for civil
confinement—a reason that bears some reasonable relationship to the purpose for
which the person is being committed. (O’Connor
v. Donaldson (1975) 422 U.S. 563, 574; McKee I, supra,
47 Cal.4th at p. 1188.)
An individual’s right to
be free of physical restraint may be overridden for the common good when the
individual is unable to control his or her behavior and, as a result, poses a
danger to public health and safety. (Hendricks,
supra, 521 U.S. at pp. 356-357; Hubbart I, supra, 19 Cal.4th at p.
1151; McKee I, supra,
47 Cal.4th at p. 1188.)
In
order to make an initial civil commitment of a person to a mental institution,
due process requires that the state prove by clear and convincing evidence both
that the person is mentally ill and that hospitalization is required for his or
her own welfare or for the protection of others.
pp. 426-427, 432-433; McKee I, supra,
47 Cal.4th at p. 1189.)
Once the person has been committed, due process permits the person to be
held as long as he or she is both mentally ill and dangerous, but no
longer. Once the person recovers his or
her sanity or is no longer dangerous, due process requires that he or she be
released from civil commitment. (Foucha
v. Louisiana (1992) 504 U.S. 71, 77-78 [state cannot hold dangerous person
who is no longer mentally ill]; McKee I, supra,
47 Cal.4th at p. 1193.)
On
appeal, Boyle argues that the imposition of an indeterminate commitment term
unless he proves his right to release by a preponderance of evidence violates
his federal due process rights. The California Supreme Court rejects this contention. It concluded that once an initial sexually
violent predator commitment is made based on evidence beyond a reasonable
doubt, to require an indeterminately committed person to prove that he or she
is no longer a sexually violent predator by a preponderance of evidence does
not violate due process. (
Thus, we reject Boyle’s due process claim of error.
C. Ex Post
Facto
Boyle also reasons that the amended
SVPA violates the ban on ex post facto laws contained in the federal and state
Constitutions. (See U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) The
States Constitution prohibits any state from passing any ex post facto
law. The ex post facto clause prohibits
only those laws that retroactively alter the definition of crimes or increase
punishment for criminal acts. (Collins
v. Youngblood (1990) 497 U.S. 37, 43; McKee I, supra,
47 Cal.4th at p. 1193.)
Thus, to implicate
federal ex post facto protection, a statute must be a penal one. (Hendricks,
supra, 521 U.S. at p. 370; McKee
I, supra, 47 Cal.4th at
pp. 1193-1194.) The California
Supreme Court has determined that the SVPA is not a punitive provision. (McKee
I, supra, at pp. 1193-1195.) Thus,
Boyle’s ex post facto claim necessarily fails.
D. Double Jeopardy
Boyle also contends that
an amended SVPA commitment constitutes double jeopardy. (See U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The double jeopardy clause of the federal
Constitution prohibits punishing any individual twice for the same
offense. (Hendricks, supra, 521 U.S. at p. 369; Witte v. United States (1995) 515 U.S. 389, 395-396.) As an SVPA commitment is not punitive, it
does not constitute a second prosecution within the meaning of the ban on
multiple punishment. (
1226 (Hubbart II).)
Thus, Boyle’s double jeopardy claim is also
meritless. (See Hendricks, supra, 521 U.S. at pp. 360-361, 369-370.)
E.
Equal Protection
1. Contentions
on Appeal
contends that the amended SVPA
differences between it and other civil commitment schemes. He argues that the commitment of sexually
violent predators differs significantly from the commitments of mentally
disordered offenders (MDO’s) and those found not guilty by reason of insanity
(NGI’s).
title="">[7]
He reasons that the distinctions between the SVPA and these other
commitment schemes treat similarly situated persons in a markedly different
manner, in violation of his state and federal constitutional rights to equal
protection of the laws. (See U.S. Const., 14th Amend.; Cal. Const., art. I, § 7; Pen. Code,
§§ 1026-1027, 2960-2981; §§ 5000-5550.)
Our Supreme Court has
already upheld the original SVPA against an equal protection challenge. (Hubbart
I, supra, 19 Cal.4th at pp. 1168-1170; see Hubbart II, supra, 88 Cal.App.4th at pp. 1209,
1216-1225.) In this appeal, Boyle argues
that under the amended SVPA, the various commitment schemes were no longer on
an equal footing in California.
He notes that the original SVPA and the other commitment schemes all
relied on a finite term of commitment after which the state was required to
prove the continued need for commitment.
The amended SVPA violates equal protection, Boyle reasons, because it
requires an indefinite term of commitment and sometimes requires the committed
person to assume the burden of proving that he or she should be released,
without a right to a jury trial on that issue.
During the pendency of
this appeal, the California Supreme Court weighed in on these
I, supra, 47 Cal.4th at pp.
1196-1211.) It ruled that the People
should be given an opportunity to show that sexually violent predators
constitute a substantially greater risk to society than other similarly
situated persons, such that imposing a greater burden on them before release
from commitment is needed to protect society.
(McKee I, supra, 47 Cal.4th at pp. 1207-1208.) Accordingly, an evidentiary hearing was
conducted on equal protection concerns in a San Diego County Superior Court proceeding. After the evidentiary hearing, the trial
court in McKee concluded that the
People proved that a justification existed for disparate treatment of sexually
violent predators when compared to MDO’s and NGI’s. The Fourth Appellate District, Division One,
affirmed the trial court’s commitment order, and the California Supreme Court
has denied review. (See
through the lens of these decisions.
2. Similarly Situated
The
first requirement of a successful equal protection claim is to show that the
state has adopted a classification that affects similarly situated groups in an
unequal manner. (Cooley v. Superior Court, supra, 29 Cal.4th at p. 253; Hubbart
II, supra, 88 Cal.App.4th at p. 1216.)
If the persons are not similarly situated for purposes of the law, then
the equal protection claim necessarily fails.
(People v. Buffington (1999)
74 Cal.App.4th 1149, 1155.) The
California Supreme Court concluded that those committed as sexually violent
predators are similarly situated to those committed as MDO’s and NGI’s. (McKee I, supra,
47 Cal.4th at pp. 1203, 1207.) Thus, we
consider whether the disparate treatment of these classes of persons violates
equal protection.
3. Disparate
Treatment Justified
We need not repeat the evidence
presented in San Diego County Superior Court that the Fourth Appellate District
set out in great detail in McKee II. This evidence satisfied both courts that
disparate treatment of sexually violent predators was warranted. (McKee
II, supra, 207 Cal.App.4th at pp. 1339-1348.) McKee
II found substantial evidence to support reasonable perception on the part
of the electorate enacting the amended SVPA that the recidivism rate of
released sexually violent predators is greater than the reoffense rate of other
sex offenders; that the harm suffered by victims of sex offenses is greater
than that caused by other types of offenses; that sexually violent predators
pose an increased risk of harm to children; that sexually violent predators
have significantly different diagnoses from those of MDO’s and NGI’s; and that
differences in treatment plans, rates of compliance and success rates are
significantly different. (
pp. 1342-1344, 1347.)
That evidence persuaded
the McKee II court that sexually
violent predators as a class pose a substantially greater risk to society than
MDO’s and NGI’s, such that the protection of society warrants the imposition of
a greater burden before sexually violent predators can be released from
commitment. That court held that the
evidence offered at the hearing supported the conclusion that the disparate
treatment of sexually violent predators under the amended SVPA was necessary to
further the state’s compelling interests in public safety and the humane
treatment of the mentally disordered. (
1347.) Finding that disparate treatment
to be reasonable and factually based, that court concluded that the amended
SVPA did not violate the committed person’s equal protection rights. (Id. at
p. 1348.)
Having reviewed the
evidence set out in McKee II, we
reach the same conclusion in Boyle’s case—that the evidence offered in the
the disparate treatment set out in the amended SVPA. Thus, we also reject Boyle’s equal protection
challenge.
III.
OTHER ISSUES
A. Material Legal Error
Boyle also raises several other
challenges to the imposition of the law in his case. First, he contends that the trial court
should have dismissed the initial commitment petition because the underlying
evaluations were tainted by material legal error. He also urges us to find that trial counsel
failed to provide him with effective assistance of counsel because of counsel’s
failure to move for dismissal of the petition based on this material legal
error.
The SVPA requires use of a screening
procedure to evaluate whether an individual qualifies as a sexually violent
predator. (Former § 6601 [as
amended by Stats. 2006, ch. 337, §§ 54, 62]; § 6601 [Voter Information Guide, Gen. Elec., supra,
text of Prop. 83, pp. 136-137].) When the initial commitment
petition was filed in October 2006, the definition of a sexually violent
predator required that the person have committed a sexually violent offense
against two or more victims. (Former
§ 6600, subd. (a)(1) [as amended by Stats. 2006, ch. 337,
§ 53].) The petition alleged two
sexually violent offenses—the 1993 and 2004 incidents in Virginia that led to Boyle’s two convictions of
aggravated sexual battery in that state.
On appeal, Boyle contends that two
of the evaluators mistakenly concluded that the second of his two offenses—the
2004 aggravated sexual battery in which he kissed the face of a 10-year-old
girl and fondled her breast—constituted a qualifying offense. He argues that this second offense did not
involve the required level of substantial sexual conduct and as such, the
initial commitment petition should have been dismissed. A lewd and lascivious
act on a child under age 14 constituted a sexually violent offense if it
involved substantial sexual conduct—vaginal or anal intercourse, oral
copulation or masturbation.
(§§ 6600, subd. (b), 6600.1, subd. (b).) Masturbation requires some touching of the
genitals. (See People v.
782-787.)
We need not resolve this
issue. By the time that the trial court
conducted the February 2007 probable cause hearing on the October 2006
petition, the SVPA had been amended by the voters in Proposition 83. In November 2006—less than a month after the
filing of Boyle’s commitment petition—the amended SVPA modified the definition
of a sexually violent predator, requiring that he or she be a person who had
committed a sexually violent offense against one or more victims. (§ 6600, subd. (a)(1); see Voter Information Guide, Gen. Elec., supra,
text of Prop. 83, p. 135.) The law in effect at that time—and when the
April 2007 commitment order issued—required only one qualifying offense. Boyle does not contest that the April 1993
touching of the private parts of a seven-year-old child constituted a
qualifying offense for purposes of the petition. The petition properly supported the trial
court’s order of commitment.
name="_ftnref8" title="">[8]
As the underlying petition was not defective because of material legal
error, we also reject Boyle’s related ineffective assistance of counsel claim.
B. Sufficiency of Evidence
Next, Boyle argues that
the evidence offered at the hearing did not establish that he committed two
qualifying offenses and thus did not satisfy the requirements of the SVPA. By the time that the trial court adjudicated
Boyle’s sexually violent predator status in April 2007, the law had changed to
require only one qualifying offense.
(§ 6600, subd. (a)(1); see Voter
Information Guide, Gen. Elec., supra,
text of Prop. 83, p. 135.) The critical date is the date of adjudication, not the date of the filing of the
underlying petition. (People v.
p. 514; see People v. Whaley,
supra, 160 Cal.App.4th at pp. 792-796; Bourquez
v. Superior Court, supra, 156 Cal.App.4th at pp. 1288-1289; People v. Shields, supra, 155 Cal.App.4th at p. 563.) Boyle does not contest that the April
1993 offense is a qualifying offense within the meaning of the amended
SVPA. Thus, there was sufficient
evidence to support the April 2007 commitment.
C. Ineffective Assistance of Counsel
Finally, Boyle contends
that his trial counsel effectively abandoned him at the hearing and failed to
argue the merits of his case, providing him with the ineffective assistance of
counsel. As this claim of error also
turns on whether counsel made a sufficient argument to challenge a second
qualifying offense that was no longer required by the time of the commitment
order, counsel committed no error and Boyle suffered no prejudice from any
omission of trial counsel in this regard.
(See Strickland v. Washington
(1984) 466 U.S. 668, 687-696; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
The commitment order is
affirmed.
_________________________
Reardon,
J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
unless otherwise indicated.
name="_ftn2" title=""> [2] The California Supreme Court’s May 2010 remand order also directed
us to suspend further proceedings in Boyle
until McKee was final “including
any proceeding in the Superior Court of San Diego County in which McKee may be
consolidated with related matters.†San Diego County
officials have confirmed that no cases consolidated with McKee are now pending.
