P. v. Goldberg

 

 

 

 

 

 

 

 

 

 

 

Filed 8/9/13  P. v. Goldberg CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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. JEFFREY GOLDBERG,             Defendant and Appellant.

A134863         (San Mateo County       Super. Ct. No. CIV 497921)

           

            Jeffrey
Goldberg was committed to the Department of Mental Health for an indefinite
term after a jury found him to be a sexually
violent predator (SVP) within the meaning of the Sexually Violent Predators
Act (SVPA).href="#_ftn1" name="_ftnref1"
title="">[1]  On appeal, he contends that his commitment
cannot be sustained because the jury’s determination was supported by href="http://www.mcmillanlaw.com/">insufficient evidence, he was entitled
to a jury instruction clarifying the definition of “diagnosed mental disorder,”
and the SVPA is unconstitutional.  We
disagree and affirm.

I.

Factual and Procedural

Background

            Over the course of six years in the
1980s, Goldberg raped, sodomized, or otherwise sexually attacked at least nine
women.  The attacks began in 1983, when
he used a razor to threaten a 15-year-old prostitute (V.M.), and then raped and
sodomized her and forced her to orally copulate him.  Goldberg was sentenced to prison, but the
sentence was suspended, and he received probation.  In June 1984, approximately five months after
being placed on probation, he sexually assaulted a former girlfriend
(S.S.).  Criminal charges were brought,
but they were dismissed when Goldberg admitted that he had violated his
probation.  He was sentenced to prison
for the probation violation, spent about six months in custody, and was
released on parole in March 1985.

            In
1986, while still on parole, Goldberg used a knife to threaten another
prostitute (T.D.), whom he raped and forced to orally copulate him.  On a separate occasion, he used a sharp
object to assault and attempt to rape another prostitute (P.M.).  Although the charges related to T.D. were
eventually dismissed, Goldberg admitted that the incident occurred.  Goldberg was convicted of the charges related
to P.M. and sentenced to a six-year prison term.  He served about three years in prison and, in
June 1989, was released on parole again.

            About
a month after his release, Goldberg used a knife to threaten another prostitute
(D.M.), whom he sodomized and forced to orally copulate him.  Two weeks after he attacked D.M., Goldberg
used a knife while raping yet another prostitute (V.M.).  Goldberg was arrested, charged, and convicted
of the offenses against D.M. and V.M., and sentenced to 39 years in prison.

            Thus,
the record shows that Goldberg sexually assaulted six women whose identities
are known, all but the first when he was on probation or parole.  With one exception—the sexual assault on
S.S., Goldberg’s former girlfriend—all of these assaults involved Goldberg
using a knife or other sharp object to force himself upon a prostitute.  In addition, Goldberg admits to sexually
assaulting at least three more prostitutes whose identities we do not know,
bringing the total number of his sexual assaults to at least nine.  All nine of these sexual assaults occurred during
the approximately four and a half years between 1983 and 1989 when Goldberg was
not incarcerated.

            Goldberg
has remained in custody since 1989.  In
August 2010, a few weeks before he was scheduled to be released from prison,
the People filed a petition seeking his indefinite commitment to a state
hospital as an SVP.  The trial court
found probable cause, and a jury trial was held in January 2012.  Four clinical psychologists testified as
experts:  Drs. Jesus Padilla and Marianne
Davis for the People, and Drs. Brian Abbott and Christopher Heard for
Goldberg.  Drs. Padilla and Davis
diagnosed Goldberg with paraphilic coercive disorder—a disorder in which a
person’s sexuality is directed at nonconsensual sex—and concluded that he was
likely to rape again if released. 
Drs. Abbott and Heard testified that paraphilic coercive disorder
could not be reliably diagnosed.  They
also testified that even if Goldberg had a mental disorder predisposing him to
sexually violent behavior, he was not sufficiently likely to reoffend to be
considered an SVP.  The jury found that
Goldberg was an SVP, and the court ordered him committed to state hospital for
an indefinite term.  Goldberg timely
appealed.

II.

Discussion

            For a person to be committed under
the SVPA, the People must prove beyond a reasonable doubt that he or she is an
SVP.  (§ 6604.)  This requires a jury or court to find that
the person (1) has been convicted of a sexually violent offense against at
least one victim and (2) has a “diagnosed href="http://www.sandiegohealthdirectory.com/">mental disorder that makes
[him or her] 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).) In addition, this
behavior must be predatory.  (>People v. Hurtado (2002) 28 Cal.4th
1179, 1182, 1187.)  A “ ‘[d]iagnosed
mental disorder’ includes a congenital or acquired 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).)

            Goldberg
argues that his commitment as an SVP cannot be sustained because the jury’s
determination was supported by insufficient evidence, he was entitled to a jury
instruction clarifying the definition of “diagnosed mental disorder,” and the
SVPA is unconstitutional.  We reject all
of his claims.

            >A.         >Sufficiency of the Evidence.

            Goldberg
contends that there was insufficient evidence to establish that
(1) paraphilic coercive disorder exists; (2) he has paraphilic coercive
disorder; or (3) he is “likely” to reoffend if released.  When reviewing challenges based on the
sufficiency of the evidence, we apply the substantial evidence standard of
review.  (People v. Mercer (1999) 70 Cal.App.4th 463, 466-467.)  This standard requires us to “review the
entire record in the light most favorable to the judgment to determine whether
substantial evidence supports the determination below.”  (Id.
at p. 466; see also People v. Cuevas
(1995) 12 Cal.4th 252, 260.)  To be
substantial, evidence must be “reasonable, credible, and of solid value.”  (Cuevas
at p. 260.)  In reviewing whether
the evidence meets this standard, we defer to the trier of fact’s credibility
determinations, including determinations of “[t]he credibility of the experts
and their conclusions.”  (>Mercer at pp. 466-467; see also >People v. Jones (1990) 51 Cal.3d 294,
314 [“it is the exclusive province of the trial judge or jury to determine the
credibility of a witness”].)  “The
testimony of one witness, if believed, may be sufficient to prove any
fact.  (Evid. Code, § 411.)”  (People v.
Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)  But expert medical opinion based on a
“ â€˜guess, surmise or conjecture, rather than relevant, probative facts,
cannot constitute substantial evidence.’ â€ 
(Lockheed Martin Corp. v. Superior
Court (2003) 29 Cal.4th 1096, 1110.)

            With
this standard of review in mind, we turn to whether there was sufficient
evidence upon which the jury could have concluded that paraphilic coercive
disorder is a legitimate “diagnosed mental disorder,” that Goldberg suffered
from the disorder, and that he was likely to reoffend if released.

1.         Sufficient evidence was presented that
paraphilic coercive disorder is a “diagnosed mental disorder.”

            Goldberg argues that the evidence failed to establish
that paraphilic coercive disorder is a valid mental disorder that can justify
commitment as an SVP.  Although we
recognize that the experts’ contrasting opinions in this case echo a larger
debate among mental-health professionals about the disorder, we conclude that
sufficient evidence was presented for the jury to find that paraphilic coercive
disorder is a legitimate mental disorder.

            We
begin by summarizing the evidence presented at the trial about paraphilic
coercive disorder.  A paraphilia is a
mental disorder in which the person’s sexuality is directed at an abnormal
focus, such as children or nonhuman items. 
The version of the American Psychiatric Association’s diagnostic manual
of mental disorders current at the time of Goldberg’s trial was the DSM-IV-TR
(Diagnostic and Statistical Manual of Mental Disorders (Text rev. 4th
ed.)).  This version lists eight specific
paraphilias.  It also lists paraphilia
not otherwise specified (NOS), a catchall category that encompasses dozens of
other recognized paraphilias.

            Paraphilic
coercive disorder is also known as “paraphilia NOS nonconsenting persons” or
“rape paraphilia.”  It is a paraphilia in
which a person’s sexual arousal is stimulated by nonconsensual sex.  Paraphilic coercive disorder does not appear
in the DSM-IV-TR, and the manual does not contain any diagnostic criteria for
it other than those for paraphilia NOS.

            Goldberg
argues the evidence showed that paraphilic coercive disorder is insufficiently
“accepted by the mental health community” to satisfy the SVPA’s “diagnosed
mental disorder” requirement.  We are not
persuaded.  It is true that the testifying
experts all agreed that the disorder, to the extent it exists, is rare, and the
vast majority of rapists do not have it. 
But Drs. Padilla and Davis testified that paraphilic coercive disorder
is well-recognized in the mental-health field. 
Even one of Goldberg’s experts, Dr. Abbott, agreed with Drs. Padilla and
Davis that paraphilic coercive
disorder exists.  Only Dr. Heard
expressed doubt about the disorder’s existence, based on the difficulty of
diagnosing it.  Thus, href="http://www.mcmillanlaw.com/">substantial evidence was presented upon
which the jury could have relied in concluding that paraphilic coercive
disorder is a valid mental disorder.

            We
also find it significant that our Supreme Court and other courts of appeal have
upheld SVPA commitments on the basis of a diagnosis of paraphilia NOS directed
at nonconsenting persons.  (See, e.g>., Hubbart
v. Superior Court (1999) 19 Cal.4th 1138, 1150 [“ â€˜Paraphilia Not
Otherwise Specified, Bondage, Rape and Sodomy of Adult Women, Severe,’ â€
and “ â€˜Paraphilia, not otherwise specified with rape, sodomy and
klismaphilia toward adult women, severe’ â€]; People v. Williams (2003) 31 Cal.4th 757, 762 [“paraphilia NOS”
involving “sex with nonconsenting persons”]; People v. Felix (2008) 169 Cal.App.4th 607, 610-611, 616-617
[paraphilia not otherwise specified where defendant committed a series of rapes
and other forcible sexual acts]; People
v. Burris (2002) 102 Cal.App.4th 1096, 1102, 1110 [“paraphilia involving
rape”].)  Goldberg has not pointed to any
case, and we are aware of none, that has categorically concluded that paraphilic
coercive disorder cannot constitute the “diagnosed mental disorder” required
for commitment under the SVPA.

            Simply
because paraphilic coercive disorder is not specifically identified in the
DSM-IV-TR does not mean it cannot be a “diagnosed mental disorder.”  (See Hubbart,
supra, 19 Cal.4th at pp. 1158-1161 [the range of disorders that may
support an SVPA commitment is not limited to those the psychiatric community
defines as mental illnesses]; McGee v.
Bartow (7th Cir. 2010) 593 F.3d 556, 576, 580 [“[C]ivil commitment upon a
finding of a ‘mental disorder’ does not violate due process even though the
predicate diagnosis [of rape paraphilia] is not found within the four corners
of the DSM”].)

            The
question of whether paraphilic coercive disorder can constitute a mental
disorder justifying an involuntary commitment was thoughtfully considered by
the Court of Appeals for the Seventh Circuit in McGee, and we find the opinion’s discussion and analysis
persuasive.  After acknowledging the lack
of expert agreement on the reliability of a diagnosis of paraphilic coercive
disorder, the court concluded that questions about the disorder’s legitimacy
are properly left to the jury.  The court
wrote that “[g]iven these admittedly conflicting professional views, we must
conclude, on the basis of present Supreme Court precedent, that the diagnosis
of a paraphilic disorder related to rape is not so unsupported by science that
it should be excluded absolutely from consideration by the trier of fact.”  (McGee
v. Bartow, supra,> 593 F.3d at p. 580.)  The professional debate about the disorder,
the court found, “is a relevant issue in commitment proceedings and a proper
consideration for the factfinder in weighing the evidence that the defendant
has the ‘mental disorder’ required by statute.” 
(Id. at p. 581.)

            We
likewise conclude that a jury may properly find that paraphilic coercive
disorder is a valid mental disorder justifying a commitment under the SVPA when
substantial evidence is presented as to its validity, as happened in this
case.  Accordingly, we now turn to
whether substantial evidence was
presented that Goldberg has the disorder.

2.         Sufficient evidence was presented that
Goldberg suffers from paraphilic coercive disorder.

            Drs. Padilla and Davis independently
diagnosed Goldberg with paraphilic coercive disorder.  In explaining his diagnosis, Dr. Padilla
cited the DSM-IV-TR’s diagnostic criteria for paraphilia NOS and studies on the
factors supporting a diagnosis of paraphilic coercive disorder.  He and another researcher surveyed
mental-health professionals who assess, treat, and research sex offenders, and
he compiled a list of factors most closely related to the diagnosis.  Dr. Padilla concluded that Goldberg satisfied
several of these factors:  he had five or
more victims over a period of at least six months; he was convicted of a sexual
offense at least twice; he reoffended within a year of another offense and
while on probation or parole; he had a pattern of coercive sexual behavior over
at least six months; his offenses were premeditated and involved planning; he
had a consistent method; and he sought out victims despite the availability of
a consenting sexual partner.  In addition,
Dr. Padilla pointed out that Goldberg did not stop raping or stop being aroused
when his victims resisted, which would have contraindicated the disorder’s
diagnosis.

            Dr.
Davis also referred to the paraphilia NOS diagnostic criteria, although she did
not identify the source of the factors specific to paraphilic coercive disorder
that she considered.  She cited many of
the same factors that Dr. Padilla had used to support his opinion, including
that Goldberg continued to rape over a long period of time; planned his
offenses; was able to ejaculate despite his victims’ resistance; used the same
modus operandi; and raped despite the availability of a consenting sexual
partner.  She also concluded that
Goldberg’s offenses were compulsive because he offended while on probation or
parole; “had a very high sex drive”; and expressed remorse for his actions,
which suggested he could not control them.

            Goldberg’s
experts testified that Goldberg did not have paraphilic coercive disorder.  Dr. Abbott concluded that Goldberg sexually
assaulted women not because of sexual deviancy but because of his antisocial
attitudes and poor self-control and judgment. 
Dr. Abbott believed that Goldberg’s pattern of offending was not
sufficient to diagnose a paraphilia, and there were contraindications of
paraphilic coercive disorder, such as Goldberg’s telling a victim to enjoy
herself or continuing an assault despite a lack of resistance.

            Dr.
Heard saw no “indices of any paraphilia whatsoever” in Goldberg.  He testified that Goldberg’s crimes did not
follow a sufficient “script” to suggest a paraphilia, and there was no evidence
that he looked at pornography involving rape. 
According to Dr. Heard, Goldberg did not have paraphilic coercive
disorder but was instead a “a power anger rapist,” meaning that he sexually
assaulted women out of feelings of inadequacy and anger.

            Goldberg
implies there was an insufficient basis for his diagnosis by the People’s
experts because there are no accepted criteria for diagnosing paraphilic
coercive disorder.  “[A]ny material that
forms the basis of an expert’s opinion testimony must be reliable,” although it
need not be admissible.  (>People v. Gardeley (1996)
14 Cal.4th 605, 618; see also Evid. Code, § 801, subd. (b).)  But “[n]o precise legal rules dictate the
proper basis for an expert’s journey into a patient’s mind to make judgments
about his behavior.”  (>People v. Stoll (1989) 49 Cal.3d 1136,
1154.)  In particular, expert testimony
about the diagnosis of mental conditions, even mental conditions not listed in
the DSM, is not subject to the Kellyhref="#_ftn2" name="_ftnref2" title="">[2] standard, which
raises the admissibility threshold for evidence produced by a “new scientific
method.”  (People v. McDonald (1984) 37 Cal.3d 351, 373; People v. Ward (1999) 71 Cal.App.4th 368, 373; see also >People v. Cegers (1992)
7 Cal.App.4th 988, 1000.)

            We
cannot say from our review of the record that Dr. Padilla’s and Dr. Davis’s
diagnoses were based on “ â€˜guess, surmise or conjecture.’ â€  (Lockheed
Martin Corp. v. Superior Court, supra,
29 Cal.4th at p. 1110.)  Dr. Padilla
cited the DSM-IV-TR’s diagnostic criteria for paraphilia NOS, and he discussed
studies and research on the factors supporting a diagnosis of paraphilic
coercive disorder.  He testified that
Goldberg satisfied several of these factors and did not satisfy other factors
contraindicating the disorder’s diagnosis. 
Goldberg does not point us to any authority suggesting that the
materials Dr. Padilla used were unreliable. 
Dr. Davis also mentioned the DSM-IV-TR’s diagnostic criteria for
paraphilia NOS and referred to the extensive literature analyzing paraphilic
coercive disorder.  The factors she
applied in diagnosing Goldberg overlapped with those that Dr. Padilla
considered.  We find it significant that
Drs. Padilla and Davis diagnosed Goldberg with the same disorder independently
and without being aware of the other’s conclusions.  In short, we conclude that sufficient indicia
of reliability were presented regarding these experts’ opinions to support the
jury’s conclusion that Goldberg had a “diagnosed mental disorder.”

3.         Sufficient evidence was presented
showing that Goldberg was likely to reoffend if released.

            Goldberg argues that insufficient
evidence was presented that he was likely to reoffend upon release, especially
given that he was 57 years old at the time of trial, and the risk of
reoffending declines with age.  Again, we
disagree.

            Section
6600, subdivision (a) requires proof that the respondent poses “a
substantial danger, that is, a serious and well-founded risk, of committing”
sexually violent crimes if released.  (>People v. Roberge (2003) 29 Cal.4th 979,
988, italics omitted.)  The trier of fact
must find “much more than the mere possibility that the person will reoffend,”
but the chance of reoffending need not be greater than 50 percent.  (People
v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 916, 922, italics omitted.)

            All
four expert witnesses testified that they used the Static-99R tool in
predicting the likelihood that Goldberg would reoffend.  The Static-99R is an actuarial tool used to
assess a sexual offender’s risk of reoffending. 
(See People v. Paniagua (2012)
209 Cal.App.4th 499, 504, fn. 5.) 
The evaluator gives the subject a base score depending on various
factors, including the subject’s age and crime characteristics.  Because Goldberg was between 40 and 59 years
old at the time of assessment, a point was deducted from his base score to
recognize the lower risk of reoffending due to his age.  If he had been 60 or older when assessed, the
Static-99R would have required that three points be deducted from his base
score.href="#_ftn3" name="_ftnref3" title="">[3]  Dr. Davis testified that the Static-99R
“sufficiently accounts for age according to all the research that has been
coming out about the instrument,” and that there was no justification for
further decreasing Goldberg’s likelihood of reoffending based on his age.  Goldberg’s experts disagreed with this
testimony.

            After
assigning a base score under the Static-99R, an evaluator then determines which
of four sample groups the subject best fits, depending on factors such as the
number of sex offenses.  The subject’s
risk of reoffending within five years and within 10 years is the same as that
established for the offenders in the selected sample group with the same base
score.  Dr. Davis testified that the
Static-99R is of moderate accuracy, but it may underestimate the likelihood of
reoffending because many sex offenses go unreported.

            The
experts all agreed that Goldberg’s base score was five, which put him in the
moderate-high risk category, but disagreed on which sample group was most
appropriate.  As a result, they projected
different levels of risk.  Dr. Padilla
projected Goldberg’s risk of reoffending within five years at 25.2 percent, and
within 10 years at 35.5 percent. 
Dr. Davis projected the risk of reoffending within five years at
19.6 percent, and within 10 years at 27.7 percent.  Because Goldberg’s experts did not think the
Static-99R sufficiently took age into account, they did not use it to do five-
and 10-year projections.  Dr. Abbott
decided that Goldberg’s risk of reoffending within five years was six percent,
and Dr. Heard projected a risk of no more than eight percent.  Based primarily on their Static-99R
projections, Drs. Padilla and Davis determined that Goldberg was likely enough
to reoffend to justify his commitment as an SVP.href="#_ftn4" name="_ftnref4" title="">[4]  Drs. Abbott and Heard did not think Goldberg
was likely to reoffend.

            Goldberg
urges us to disregard the Static-99R testimony of the People’s experts because,
according to him, it was internally inconsistent.  He argues that despite evidence that the risk
of reoffending declines with age, “both Dr. Padilla and Dr. Davis told the jury
that [Goldberg]’s risk to reoffend would continue to rise over time” by
testifying that Goldberg’s “risk of reoffending would be greater in 10 years .
. . than it was at the time of trial.” 
Goldberg misunderstands their testimony. 
They meant that as of trial, the risk that Goldberg would reoffend over
a period of five years was 25.2 percent or 19.6 percent, and the risk that he
would reoffend over a period of 10 years was 35.5 percent or 27.7 percent, not
that his risk of reoffending 10 years later was greater than his risk of
reoffending five years later.  A
comparison of the 10-year estimates with the five-year estimates show that both
experts presumed that Goldberg’s risk of reoffending would decrease in the second five-year period.  Still, the overall chance of Goldberg
reoffending in 10 years was estimated by the experts to be higher than the
chance of reoffending in five years because five additional years were being
considered.

            Goldberg
also argues that his experts’ testimony that his risk of reoffending was no
more than 10 percent should be credited over the People’s witnesses’ testimony
that his risk was higher.  We decline his
invitation to reweigh the evidence. 
Dr. Padilla concluded that Goldberg had at least a 35.5 percent
chance reoffending at some point. 
Goldberg does not claim, and we do not find, that this level of likelihood
is insufficient as a matter of law.  We
conclude that substantial evidence was presented to the jury that Goldberg was
likely to reoffend if released.

            >B.         >The Jury Instruction Defining “>Diagnosed Mental Disorder.”>

            Goldberg
contends that the portion of CALCRIM No. 3454 defining “diagnosed mental
disorder” is ambiguous, and the trial court should have given a clarifying
instruction.  Even though Goldberg failed
to request a clarifying instruction at trial, which normally would have
resulted in a forfeiture of the issue on appeal (People v. Campos (2007) 156 Cal.App.4th 1228, 1236), we will
consider his argument on the merits because he claims the instruction affected
his substantial rights (Pen. Code, § 1259).  In doing so, we conclude that his claim is
foreclosed by People v. Williams,
supra, 31 Cal.4th 757.

            The
word “includes” is the only part of the instruction that Goldberg
challenges.  The relevant part of the
instruction states, “The term diagnosed mental disorder includes conditions
either existing at birth or acquired after birth that affect a person’s ability
to control emotions and behavior and predispose that person to commit criminal
sexual acts to an extent that makes him or her a menace to the health and
safety of others.”  This definition
closely tracks the SVPA’s definition of “ â€˜[d]iagnosed mental
disorder,’ â€ which uses “includes” in the same way.  (See § 6600, subd. (c) [“
‘Diagnosed mental disorder’ includes . . . .”].)  Goldberg recognizes that the instruction
conveyed the statutory requirements.  (>People v. Estrada (1995) 11 Cal.4th 568,
574 [statutory language is normally “ â€˜an appropriate and desirable basis
for an instruction’ â€].)  But he
argues that the instruction embraces mental disorders other than those
described, and the jury therefore could have found the petition true without
finding that paraphilic coercive disorder fit the specific description
given.  He suggests that the danger the
jury did so was real, given its request during deliberations to reexamine the
testimony about the definition of paraphilia NOS and the diagnosis of
paraphilic coercive disorder.

            At
the outset, we recognize that a definition beginning with the word “includes”
is often not limited to the description that follows.  For example, in Pirkig v. Dennis (1989) 215 Cal.App.3d 1560, 1565, we analyzed a
statute that uses “ â€˜includes’ â€ to define the
“ â€˜ â€œprevailing party” â€™ â€ for the purpose of determining
costs in a civil case.  We determined
that “[t]he word ‘includes’ is an open-ended term which is expansive in scope,”
and its use in the statutory definition allowed for “prevailing parties” other
than those described.  (>Ibid.; see also Garner, Dict. of Modern
Legal Usage (3d ed. 2011) p. 439, col. 2 [“including . . . should not
be used to introduce an exhaustive list, for it implies that the list is only
partial,” boldface omitted].)

            While
most decisions have not considered the effect of the SVPA’s use of the word
“includes” to define “diagnosed mental disorder,” the Fourth District Court of
Appeal has recognized that the SVPA does not “fully define[]” the term.  (In re
Parker (1998) 60 Cal.App.4th 1453, 1457.) 
The challenged instruction conveys essential elements of “diagnosed
mental disorder” by requiring the jury to find, beyond a reasonable doubt, that
“[a]s a result of [the] diagnosed mental disorder, [Goldberg was] a danger to
the health and safety of others because it [was] likely that he [would] engage
in sexually violent predatory criminal behavior.”  Thus, by finding Goldberg to be an SVP, the
jury necessarily found that his mental condition “predispose[d him] to commit criminal
sexual acts to an extent that [made] him . . . a menace to the health and
safety of others.”

            On
the other hand, we recognize that the challenged instruction does not convey
the requirement that a diagnosed mental disorder “affect a person’s ability to
control emotions and behavior.”  This
could matter because Kansas v. Crane
(2002) 534 U.S. 407, 413, held that civil-commitment
schemes for SVPs must require “proof of serious difficulty in controlling
behavior” in order to comport with due process. 
An offender’s future dangerousness, standing alone, is insufficient
because then the civil-commitment scheme would become a “ â€˜mechanism for
retribution or general deterrence,’ â€ which are concepts the criminal law
should address.  (Id. at p. 412; see also Kansas
v. Hendricks (1997) 521 U.S. 346, 360.)

            >People v. Williams, supra, 31 Cal.4th 757, however, forecloses any claim that the
instruction’s use of the word “includes” violated Goldberg’s due process rights.  In Williams,
our Supreme Court analyzed the SVPA’s definition of “diagnosed mental
condition” and held that the statute “inherently embraces and conveys the need
for a dangerous mental condition characterized by impairment of behavioral
control,” and thus comports with Kansas
v. Crane, supra, 534 U.S. at p.
413.  (Williams, at p. 774, italics omitted.)  The court refused to hold that “further
lack-of-control instructions or findings” beyond those conveyed in jury
instructions tracking the SVPA’s language “are necessary to support a
commitment under the SVPA.”  (>Id. at pp. 774-775.)  The instruction given here was sufficient
under Williams as it is undisputed
that it reflected the SVPA’s

statutory requirements.

            Finally,
even if there were instructional error by failing to require proof of
difficulty in controlling behavior, we conclude that it was harmless beyond a
reasonable doubt.  (See >People v. Hurtado, supra, 28 Cal.4th at pp. 1194-1195.)  Dr. Davis testified that before she could
conclude an offender was an SVP, the SVPA required her to diagnose a mental
disorder that “impair[s the individual] either volitionally, and by that [the
statute] mean[s] it impairs his behavior, his control of his behavior, or it
impairs him emotionally.”  Both she and
Dr. Padilla identified several factors suggesting Goldberg’s compulsion to
rape, including his offending repeatedly and rapidly, offending despite being
on probation, offending while having an available, consenting partner, and
expressing remorse.  Accordingly, there
was plenty of evidence showing that Goldberg had an impaired ability to control
himself.

            >C.        >Equal Protection.

            Goldberg
argues that his indeterminate commitment denies him equal protection of the
law, relying on People v. McKee
(2010) 47 Cal.4th 1172 (McKee I).  We disagree and concur with our colleagues in
Division Three that the recent case of People
v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) is dispositive. 
(People v. McKnight (2012)
212 Cal.App.4th 860, 862.)

            In
McKee I, the California Supreme
Court concluded that, for purposes of the equal protection clause, SVPs are
similarly situated to two other classes of people subject to civil
commitments:  mentally disordered
offenders and persons found not guilty by reason of insanity.  (McKee I,
supra, 47 Cal.4th at
pp. 1203-1204.)  After ruling that
the classes are similarly situated, the court remanded the case for an
evidentiary hearing to determine whether there were legitimate reasons to
subject SVPs, but not the other classes, to indefinite commitments.  (Id.
at pp. 1208-1210.)  On remand, and
following a 21-day evidentiary hearing, the trial court concluded that the
People had met their burden of justifying the disparate treatment.  (McKee II,
supra, 207 Cal.App.4th at
pp. 1330, 1332.)  The Fourth
District Court of Appeal affirmed (id.
at pp. 1348, 1350), and our Supreme Court denied McKee’s petition for
review on October 10, 2012 (S204503).

            Goldberg
urges us not to follow McKee II, >supra, 207 Cal.App.4th 1325.  But as the court explained in >People v. McKnight, supra, 212 Cal.App.4th at pages 863-864, the Supreme Court
transferred multiple “ â€˜grant and hold’ â€ cases under >McKee I, supra, 47 Cal.4th
1172 “to the Courts of Appeal with directions to vacate their prior opinions
and suspend further proceedings until the McKee I
remand proceedings were final, ‘in order
to avoid an unnecessary multiplicity of proceedings.’  [Citations.] 
On remand, McKee [>II] concluded that differences between >SVP’s as a class and other offenders justify their different treatment
under the Act.  It is plain that >McKee II is not to be restricted to
Mr. McKee alone . . . , but rather its holding applies
to the class of SVP’s as a whole.” 
(Original italics.)  The Supreme Court
denied review in McKnight on
March 13, 2013 (S208182), and it has since denied review in other cases
that also found McKee II to be
dispositive on the equal protection issue. 
(People v. Landau (2013)
214 Cal.App.4th 1, 48 [agreeing with McKee II’s
reasoning and conclusion and noting that respondent made no showing he was able
to introduce “any new or different evidence that would require a different
result”], petn. review den. May 22, 2013, S209450; People v. McCloud (2013) 213 Cal.App.4th 1076, 1079 [same],
petn. review den. May 22, 2013, S208845; People v. McDonald (2013) 214 Cal.App.4th 1367, 1371
[agreeing with McKnight], petn.
review den. July 10, 2013, S210418.)

            Like
the McKnight court, we agree with the
Fourth District’s equal protection analysis in McKee II supra,
207 Cal.App.4th 1325.  We thus
conclude that Goldberg’s commitment under the SVPA does not violate his equal
protection rights.  (People v. McKnight, supra,
212 Cal.App.4th at p. 864.)

            >D.        >Other Constitutional Challenges.

            As
Goldberg concedes, McKee I, >supra, 47 Cal.4th 1172 forecloses his
remaining constitutional challenges to the SVPA.  Under Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, we are
bound by the Supreme Court’s determinations in McKee I and must reject Goldberg’s claims.

III.

Disposition

            The judgment is affirmed.

 

 

 

 

 

 

 

                                                                                    _________________________

                                                                                    Humes,
J.

 

 

We concur:

 

 

_________________________

Ruvolo, P.J.

 

 

_________________________

Reardon, J.