P. v. Ewalt

Filed 12/10/08 P. v. Ewalt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

John F.Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On March 11, 2008, appellant Danny Ewalt was ordered recommitted as a sexually violent predator. He contends the recommitment order should be reversed because (1) the trial court failed sua sponte to instruct the jury on the issue of serious difficulty in controlling sexual behavior, and (2) an indefinite commitment is unconstitutional. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The issues raised by Ewalt on appeal address legal arguments, therefore only a brief recitation of facts will be provided.

Ewalt first was ordered committed as a sexually violent predator (SVP) in August 2003. He was ordered recommitted in July 2005. On June 22, 2007, the instant recommitment petition was filed.

The 2007 petition sought to recommit Ewalt for an indeterminate term, pursuant to existing provisions of Welfare and Institutions Code section 6600 et seq.,^[1]known as the Sexually Violent Predators Act (SVPA). Ewalt filed an in limine motion challenging the indeterminate commitment as unconstitutional. His motion was denied.

At trial it was established that Ewalt had four prior qualifying convictions for sexually violent offenses against children. Expert testimony established that Ewalt had several diagnosed mental disorders, including pedophilia with a sexual attraction to both boys and girls, which adversely affected his emotional and volitional behavior. He also suffered from chronic depression, substance abuse, and had borderline intellectual functioning with an IQ of 73. Two experts testified that Ewalt was likely to reoffend in a sexually violent, predatory manner if released.

Ewalt testified that he was in the second of four phases of treatment as an SVP. The fifth phase is conditional release. He acknowledged he was still learning impulse control, but maintained that he would not engage in sexually violent behavior if released.

A jury found that Ewalt met the criteria of an SVP. Ewalt was ordered recommitted to Coalinga State Hospital on March 11, 2008.

DISCUSSION

Ewalt raises two issues on appeal. First, he contends the trial court erred prejudicially when it failed sua sponte to instruct the jury on the meaning of serious difficulty in controlling sexual behavior. Second, Ewalt contends that modifying the SVPA to provide for indeterminate commitments, instead of a two-year term of commitment, renders the SVPA unconstitutional. With respect to both contentions, we disagree.

No Need for Sua Sponte Instruction

In Kansas v. Crane (2002) 534 U.S. 407, 413, the United States Supreme Court held that civil commitment required a showing of serious difficulty in controlling behavior. Although Ewalt contends the trial court had a sua sponte duty to instruct on this point, the California Supreme Court has decided otherwise. In People v. Williams (2003) 31 Cal.4th 757 (Williams), the California Supreme Court stated:

Californias SVPA states no category of committable disorder which does not expressly require a dangerous effect on emotional or volitional capacity. We are persuaded that a jury instructed in the language of Californias statute must necessarily understand the need for serious difficulty in controlling behavior.

In our view, a judicially imposed requirement of special instructions augmenting the clear language of the SVPA would contravene the premise that, in this nuanced area, the Legislature is the primary arbiter of how the necessary mental-disorder component of its civil commitment scheme shall be defined and described. [Citations.] No reason appears to interfere with that legislative prerogative here. (Williams, supra, 31 Cal.4th at p. 774, fn. omitted.)

The court in Williams concluded that further lack-of-control instructions were not required. (Williams, supra, 31 Cal.4th at pp. 774-775.) A commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling ones criminal sexual violence and separate instructions on this issue are not constitutionally required. (Id. at p. 777.)

We are bound by the holding of Williams and decline Ewalts invitation to reach a different result. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

SVPA Indeterminate Commitment Is Constitutional

Ewalt contends a civil commitment for an indeterminate term violates his constitutional rights to due process and equal protection. He is mistaken.

Ewalt contends that the imposition of an indeterminate term that is subject only to limited review as set forth in sections 6605 and 6608 violates his due process rights. Ewalts contentions previously have been addressed and rejected by California courts and the United States Supreme Court.

Due Process

A civil commitment for an indeterminate term does not violate due process. In Kansas v. Hendricks (1997) 521 U.S. 346, 353 (Hendricks), the United States Supreme Court upheld the constitutionality of a statute that provided for an indeterminate commitment of an SVP until such time as the persons mental abnormality or personality disorder has so changed that the person is safe to be at large. [Citation.] The Kansas scheme provided for an annual review to determine whether continued commitment was warranted; the committed person also could file a petition seeking to be released. (Ibid.) Because of the requirement of an annual review, the commitment period is only potentially indefinite. (Id. at p. 364.)

Like the Kansas scheme, Californias SVP scheme provides for an annual review and allows the committee to petition for release. Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (Id., subd. (a).) The results are to be filed with the trial court and served on the committed person. (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for such discharge or conditional release is to be filed. ( Id., subd. (b).)

If the Department of Mental Health does not certify that the person should be discharged or conditionally released, the committed person can file a petition pursuant to section 6608 for conditional release or discharge. ( Id., subd. (a).) Section 6608, subdivision (i) provides that in any hearing on a petition filed under this section, the petitioner has the burden of proof by a. preponderance of the evidence

Ewalt further complains that the California SVPA scheme is constitutionally inadequate and violates due process because it provides for limited review and places the burden of proof on the committed person seeking release.

Contrary to Ewalts contention, the review available under the SVPA is not limited. If at any time the Department of Mental Health believes a person committed as an SVP no longer qualifies as an SVP, the Department of Mental Health must seek judicial review of the commitment. ( 6605, subd. (f).) At a minimum, a current evaluation must be conducted at least once a year. ( Id., subd. (a).) A person committed as an SVP also may seek discharge or conditional release pursuant to sections 6607 and 6608. (People v. Grassini (2003) 113 Cal.App.4th 765, 781.) In addition, a committed person has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405 (Talhelm).)

The annual review and the numerous methods by which a committed person may seek discharge or conditional release under Californias scheme assure that an individual remains committed only as long as he or she meets the statutory qualifications as an SVP. These procedural safeguards assure that commitment as an SVP is only potentially indeterminate and that constitutional requirements are satisfied. (See Hendricks, supra, 521 U.S. at pp. 364-365.)

Furthermore, many of the provisions of the statute challenged by Ewalt are not new; they were in effect prior to the 2006 amendments. The constitutionality of the statutory scheme adopted by California for treating SVPs has been upheld by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138. The court in Hubbart first comprehensively summarized the many provisions in the scheme, including noting that a person filing a petition for discharge or conditional release had the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court then analyzed, and rejected, a due process challenge to the statutory scheme. (Id. at pp. 1151-1167.)

As SVP commitment proceedings are civil in nature, we do not apply principles applicable to criminal proceedings. (People v. Collins (2003) 110 Cal.App.4th 340, 348 (Collins).) Because commitment as an SVP involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process. The protections afforded, however, are measured by the standard applicable to civil, not criminal proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) Due process is a flexible concept that calls for such procedural protections as the particular situation demands. [Citation.] (People v. Hardacre ( 2001) 90 Cal.App.4th 1392, 1399.)

Also, as the action instituted by a commitment petition is civil in nature, rules of civil procedure apply to petitions for discharge or conditional release filed by a committed person pursuant to section 6608. (Collins, supra, 110 Cal.App.4th at p. 348.) The burden of proof in a civil action is on the moving party and is a preponderance of the evidence. (Ibid.; 6608, subd. (i); Evid. Code, 115.) Welfare and Institutions Code section 6608, subdivision (i) specifically provides for a civil burden of proof to apply.

Ewalt was committed to an indeterminate term after it was determined beyond a reasonable doubt that he qualified as an SVP. ( 6604.) If Ewalt believes that his mental condition has changed such that he no longer qualifies as an SVP and can be discharged, or conditionally released, he has the right to file a petition under section 6608, to have counsel appointed to represent him and to seek the appointment of medical experts to evaluate him. ( 6608, subd. (a), 6605, subd. (a).) He also has the ability to seek discharge or conditional release by way of a petition for writ of habeas corpus. (Talhelm, supra, 85 Cal.App.4th at pp. 404-405.) His contention that his commitment for an indeterminate term violates due process fails.

Equal Protection

Ewalt contends his commitment as an SVP violates equal protection because similarly situated groups are treated in an unequal manner. Specifically, Ewalt points to those confined as mentally disordered offenders (MDO), Penal Code section 2960 et seq., and those committed to the Department of Mental Health by virtue of a criminal verdict of not guilty by reason of insanity as similarly situated groups whose treatment differs from that accorded those determined to be SVPs.

Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised by Ewalt. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants are not similarly situated, thus no equal protection violation].)

Additionally, the Ninth Circuit has held that Californias statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].)

We agree with the cited authority and reject Ewalts equal protection claim.

DISPOSITION

The recommitment order dated March 11, 2008, is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.

^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise specified.