P. v. Johndrow



















Filed 3/15/13 P. v. Johndrow CA3

Opinion on remand from Supreme Court









NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Shasta)

----




>

THE PEOPLE, Plaintiff and Respondent, v. GLENN ARTHUR JOHNDROW, Defendant and Appellant.

C055620 (Super. Ct. Nos. 95F7001, 93F3391)

In April
2007 a jury found defendant Glenn Arthur Johndrow was a href="http://www.fearnotlaw.com/">sexually violent predator (SVP) within
the meaning of the Sexually Violent Predator Act (SVPA; Welf. and Inst. Code,
§ 6600 et seq.), and the court committed him to the Department of Mental
Health (DMH) for an indeterminate term.href="#_ftn1" name="_ftnref1" title="">[1]

Defendant
appealed, contending that (1) he had a due
process right to testify over his counsel’s objection, and (2) recent
amendments to the SVPA permitting indeterminate commitments were
unconstitutional pursuant to principles of federal and state due process and
equal protection.

In July
2009 we filed our opinion rejecting defendant’s contentions and affirming the
commitment.

In
September 2009 the California Supreme Court granted review in this case and
deferred further proceedings pending disposition of related issues in >People v. McKee, review granted July 9, 2008, S162823. In January 2010
the Supreme Court issued its opinion in People
v. McKee (2010) 47 Cal.4th 1172 (McKee
I), concluding, contrary to several Court of Appeal decisions, that SVP’s
were similarly situated to mentally disordered offenders (MDO; Pen. Code, §
2960 et seq.) and to persons found not guilty of a criminal offense by reason
of insanity (NGI; Pen. Code, § 1026 et seq.) for purposes of the SVPA. (McKee
I, at p. 1207.) >McKee I remanded the matter to the San
Diego County Superior Court to permit the People the opportunity to show that
under equal protection principles there existed “constitutional justification
for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in
order to obtain release from commitment.”
(Id. at pp. 1208-1209.)

In May 2010
the Supreme Court transferred the instant case back to this court with
directions to reconsider our decision in light of McKee I and to suspend consideration of defendant’s href="http://www.fearnotlaw.com/">equal protection argument pending
“finality of the proceedings on remand in McKee.”

In June
2010 we reconsidered and reaffirmed our rejection of the issues raised by
defendant, except for the equal protection argument preserved by the Supreme
Court in McKee I, for which we
suspended further proceedings.

The San
Diego Superior Court conducted the evidentiary hearing required by >McKee I, concluded the People had met
their burden of justifying the disparate treatment of SVP’s, and affirmed the
indeterminate commitment. (>People v. McKee (2012)
207 Cal.App.4th 1325, 1332 (McKee II).) In October 2012 the Supreme Court denied
review and McKee II became
final. We now address in part III the
equal protection issue reserved by the Supreme Court.href="#_ftn2" name="_ftnref2" title="">[2]

FACTS

Dr. Jeffrey
Davis, a psychologist who
conducted SVP evaluations for DMH and the only witness at defendant’s trial,
testified that on May 25, 2006,
he interviewed defendant to determine whether defendant was an SVP. Prior to the interview, Dr. Davis reviewed
materials prepared by the probation department, DMH, and the Department of
Corrections as well as progress reports prepared by various medical staff,
technicians, and the manager of the conditional release program.

Dr. Davis
also reviewed defendant’s three prior sex-related convictions that qualified as
predatory sex offenses. These were as
follows.

In 1986
defendant was convicted of lewd conduct with a child under 14 years of
age. Defendant “volunteered” to take a
developmentally disabled 12-year-old boy who was attending the Special Olympics
to the bathroom. Once in the bathroom,
defendant fondled and orally copulated the boy.
Defendant admitted the conduct and stated that prior to taking the boy
into the bathroom he had been thinking of finding a child and having sex as
soon as the situation presented itself.
Defendant said that he enjoyed what he had done and that “he sucks
penises every chance he gets.”

In 1994
defendant was convicted of sodomy with an incompetent person. Defendant forced a 22-year-old
developmentally disabled male onto a bed and “forcibly penetrated his anus with
[defendant’s] penis” and threatened to send the “Hell’s Angels” after the
victim if he told anyone what had happened.
Defendant admitted the sodomy as well as fondling and orally copulating
the victim’s penis, but claimed that the acts were consensual and the comment
about the Hell’s Angels was a joke.

In 1995
defendant was convicted of lewd conduct with a child under 14 years of
age. Defendant admitted twice fondling
the penis of, and was caught kissing, the five-year-old son of a woman who was
living with defendant and defendant’s wife.

In addition
to the above SVP qualifying offenses, defendant also committed several other
sexual offenses and had two misdemeanor convictions for sexual misconduct. In 1980 defendant was convicted of lewd
conduct with a child after having an eight- or nine-year-old boy orally
copulate him while he orally copulated a seven-year-old girl as she squatted on
his face.

In 1994
defendant was convicted of misdemeanor sexual battery. He admitted that he repeatedly propositioned
a woman at a bus stop, followed her into a public bathroom when she tried to
get away from him, put his hand inside her pants, and fondled her vagina. Defendant told Dr. Davis that he was “quite
intoxicated” and “out of control” when this happened.

In 2003
defendant was found in violation of parole for putting his finger into the anus
of a 21-year-old autistic man, conduct that defendant said he liked doing.

Defendant
believed that sex with a child was “okay” if he perceived the child as
consenting. Defendant admitted to having
as many as 24 victims, half of whom were children.

Dr. Davis
diagnosed defendant as being mildly mentally retarded and having two sexual
mental disorders, each of which is incurable but subject to management. One is pedophilia, nonexclusive type, which
means that the person is 16 years of age or older and has had and acted
upon recurrent and intense sexually arousing fantasies involving prepubescent
children, generally 13 years of age or younger, over a period of at least six
months. The other is paraphilia, not otherwise
specified, nonconsenting partners, meaning he is sexually aroused by “someone
who doesn’t want the sexual contact.”

Dr. Davis
administered the Static 99 and MNSOST-R tests to determine defendant’s
propensity for reoffending. From these
he concluded that defendant was a high risk to commit another sexually violent
offense if released. In sum, Dr. Davis
opined that based upon defendant’s history and testing he still was an SVP.

I

Defendant
contends the trial court prejudicially erred when it denied his request to
testify at his trial. The People argue
that defendant did not request to testify and therefore forfeited the issue for
appeal. If not forfeited, the People
continue, defendant had no right to testify, and in any event, the error was
harmless beyond a reasonable doubt. We
conclude defendant made a request to testify, thereby preserving the issue for
appeal, and that the court erred in denying the request, but the error was
harmless beyond a reasonable doubt.

Following
Dr. Davis’s testimony, counsel requested that the court conduct a >Marsden hearing. (People
v. Marsden (1970) 2 Cal.3d 118 (Marsden).) During the course of that hearing counsel
informed the court that defendant “wishes to take the stand” to “testify as to
those factors that are in mitigation, exactly as the doctor did.” Counsel stated he did not want defendant to
testify because defendant would be subject to cross-examination, which would
bring in more damaging information as well as cause defendant to get “worked
up” because he “doesn’t hold up very well.”

When it
became clear to the court that defendant was not seeking to discharge his
counsel, i.e., this was not a Marsden
motion, the court stated it intended to reconvene with the jury present. Defendant then stated twice that what he
wanted was to “be on the stand.” The
court concluded the hearing, and when the jury returned defense counsel rested.

The People
concede that defendant informed the court he wanted to take the stand but argue
that because he did not expressly state that the basis for his request was the
due process argument he now advances, the issue is forfeited. We disagree.
Whether defendant has a due process
right to testify, over his counsel’s objection, at an SVP hearing presents
a pure question of law and therefore is reviewable without an objection in the
trial court. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-889.)

Following
the filing of the briefs in this case, the California Supreme Court filed its
opinion in People v. Allen (2008) 44
Cal.4th 843, holding that a defendant in an SVP proceeding has a right under
the due process clauses of the federal and state Constitutions to testify over
the objection of his or her counsel. (>Id.
at pp. 848, 870.) The court further
held that the denial of the right to testify is subject to the harmless error
analysis set forth in Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705], namely, the reviewing court
must be able to conclude that the error was harmless beyond a reasonable
doubt. (Allen, supra,
44 Cal.4th at pp. 848, 871-872.)

Consequently,
the trial court erred when it did not honor defendant’s request to
testify. The only question is whether
the error was harmless.

Here, Dr.
Davis recounted to the jury defendant’s extensive and violent record of sexual
offenses, which included his sexual assaults on children and adults, both male
and female, some of whom were developmentally disabled. Indeed, defendant admitted to having as many
as 24 victims, about half of whom were children. Dr. Davis diagnosed defendant with pedophilia
and paraphilia, which are lifelong conditions subject to management but not to
being cured. Objective testing showed
that defendant was a high risk to reoffend by committing another sexually
violent offense.

Dr. Davis
also observed that defendant was in phase two of a five-phase treatment program
at the hospital where he was confined.
And while defendant recognized he had a sexual problem and was “doing
his best,” he was still “struggl[ing] . . . , probably
entirely because of his intellectual deficits.”

Although
defendant did not testify, his defense, as argued by counsel, was to challenge
Dr. Davis’s opinion for bias based on his employment as a psychologist for DMH,
his payment by that department, and his recommitment recommendation in 18 out
of 19 cases similar to defendant’s. href="http://www.mcmillanlaw.com/">Defense counsel also argued that the
tests used in predicting defendant’s likelihood of reoffending were unreliable
because they were not designed specifically for SVP’s and the factors favorable
to defendant or neutral were not properly weighed. Counsel pointed out that Dr. Davis had
testified that defendant had participated in, and learned to the best of his
ability from, the hospital treatment program.
Counsel noted factors favorable to defendant’s release: defendant had an adult girlfriend, which
showed that he was focused “in the correct area”; defendant had been forthright
with Dr. Davis and had not tried to hide anything; and in the last year
“[defendant’s] fantasies and focus no longer are on children.”

Defendant
argues that had he been allowed to testify he could have told the jurors “how
hard he had worked in the program’s classes, how much he had learned about his
mental disorder, and how he could now control his sexual urges,” which “would
have been supportive of his presented defense, and would likely have caused the
jurors to accept this defense.”

The
argument is not persuasive. Dr. Davis testified
that defendant worked hard in the program, was learning about his mental
disorder, and over the past year had not fantasized sexually about
children. Since these points were
conceded by Dr. Davis, they were not in issue and defendant’s testimony would
have added nothing to his position.
Thus, the only issue was whether defendant was able to control his
sexual urges.

As to this
issue, Dr. Davis believed defendant was at high risk to reoffend in a sexually
violent manner based upon defendant’s testing, his assaultive history, his
“struggl[ing]” with the inpatient treatment program, and his completion of less
than 40 percent of the program.
Aside from defendant’s belief that he had now progressed to the point
where he was no longer an SVP, he proffered no basis to support that
position. It is inconceivable that the
jury would reject the insight and reasoning of Dr. Davis, with his extensive
training and knowledge in evaluating SVP’s, in favor of the assertions of the
mildly retarded defendant, who could offer only his personal belief that he now
could control his sexual urges. The
error was harmless beyond a reasonable doubt.

II

Defendant
contends that his commitment to DMH for an indeterminate term subject only to
the limited review contained in sections 6605 and 6608 violates his right to
due process under the Fourteenth Amendment to the United States
Constitution. We disagree.

Due Process

“[C]ivil
commitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” (>Addington v. Texas (1979) 441 U.S. 418,
425 [60 L.Ed.2d 323].) “[D]ue
process is flexible and calls for such procedural protections as the particular
situation demands.” (>Morrissey v. Brewer (1972) 408 U.S. 471,
481 [33 L.Ed.2d 484].) Relevant
factors in determining the adequacy of protections provided include (1) the
private interest affected by the official action, (2) risk of an erroneous
deprivation of such interest through the procedures used and the probable value
of additional safeguards, and (3) the government’s interest. (Ibid.) To pass constitutional muster, a state law
infringing on personal liberty must be narrowly drawn to serve a compelling
state interest. (Reno v. Flores (1993) 507 U.S. 292, 301-302 [123 L.Ed.2d 1].)

SVP’s are afforded a full panoply of
due process protections before commitment to DMH for an indeterminate term of
custody, including the right to counsel, trial by jury, the right to retain
experts or other professionals, and a requirement of proof beyond a reasonable
doubt. (See § 6600 et seq.) Defendant’s arguments present the question of
“how much process is due” when the defendant thereafter seeks release from the
commitment based on a purported change in mental condition. Defendant contends that sections 6605
and 6608 of the SVPA, which provide for review of indeterminate commitments,
violate due process guarantees because the review they provide is not narrowly
tailored to serve the state’s interest in protecting society from persons who
are presently dangerous because of href="http://www.sandiegohealthdirectory.com/">mental illness. We reject the contention.

Insofar as
is relevant to this appeal, sections 6605 and 6608 provide as follows: section 6605, subdivision (a) provides for an
annual review of a committed person by DMH to determine whether the person is
still an SVP and whether conditional release to a less restrictive alternative
or unconditional release with conditions imposed would adequately protect
society. If DMH determines the person no
longer meets the definition of an SVP or conditional release to a less
restrictive alternative is in the best interest of the person and can protect
the community, it must, pursuant to subdivision (b), authorize the person
to file with the court a petition for unconditional or conditional
release. Upon receipt of the petition
the court must set a probable cause hearing.

If, at the
probable cause hearing, the court determines the person’s mental disorder has
changed so that it is no longer likely he or she will engage in sexually
violent criminal behavior, the court must set the matter for trial. (§ 6605, subd. (c).)

At the
trial, the person is entitled to all of the constitutional protections he or
she enjoyed at the initial commitment proceedings, and the state has the burden
of proving, beyond a reasonable doubt, that the person’s diagnosed mental
disorder remains such that he or she is likely to engage in sexually violent
criminal behavior if discharged. (§
6605, subd. (d).) If the trier of fact
decides adversely to the person and DMH still believes the person is no longer
an SVP, DMH must seek judicial review of the decision. (§ 6605, subd. (f).)

If the
person does not qualify for a DMH-authorized petition, the person may still file
a petition for conditional or unconditional release and is entitled to the
assistance of counsel. (§ 6608, subd.
(a).) If the court finds the petition
frivolous or that it fails to allege sufficient facts warranting a hearing,
then it summarily denies the petition. (>Ibid.)
If the court finds otherwise, the matter is set for trial and the
defendant bears the burden of showing, by a preponderance of the evidence, that
he is entitled to release. (§ 6608,
subds. (a), (i).) If the court rules
against the person for unconditional release, the court still may place the
person on outpatient status. (§ 6608,
subd. (g).)

Defendant
argues that section 6605 denies due process because it leaves the determination
of whether to authorize the person to file a petition in the “absolute
discretion” of DMH without any provision for judicial review. Section 6608 denies due process,
defendant claims, because the person is not entitled to the assistance of an
expert and bears the burden of proof at all hearings ordered by the trial
court. These procedures, defendant
concludes, “create an unacceptable risk that an SVP detainee who no longer
qualifies as a sexually violent predator will have his commitment continued”
because “[a]fter the initial commitment, the SVP detainee has no right to a
hearing on the merits to determine if his detention should be continued.”

It is true
the decision of DMH to authorize judicial review is not itself subject to
judicial review. However, the
Legislature provided an alternative path to judicial review, unobstructed by
DMH. A defendant can petition the court
directly with the assistance of assigned counsel. A petition filed under section 6608 may not
be as warmly received as one filed under section 6605 because it lacks the
support of those who are arguably in the best position to assess the
defendant’s mental health. Nonetheless,
defendant cannot claim he is denied access to the courts to present a claim of
changed circumstances.

Defendant
can more plausibly object to the disparate treatment afforded petitioners under
section 6608. But those objections also
fail. Thus defendant claims section 6608
denies due process because he is not entitled to an expert to assist him under
section 6608. While it is true that
section 6608 does not expressly provide for such an appointment, section 6605
does so require. Pursuant to subdivision
(a) of section 6605, a person committed as an SVP is entitled to an annual
evaluation and report, prepared by a qualified professional, which must
consider whether the person remains an SVP and whether conditional release is a
viable alternative. This report is then
filed with the court and provided to the person. Thus, a person filing an unauthorized-DMH
petition under section 6608, who is entitled to the assistance of counsel,
would be in possession of a recent evaluation by a qualified professional, that
is to say, an expert.

Defendant
also claims section 6608 denies him due process because it requires him to
prove by a preponderance of the evidence that his condition is now so changed
that he is entitled to release, conditional or otherwise. This procedure, as defendant sees it, “can
easily result in the situation where the commitment of a person who suffers
from no mental illness continues.” We
disagree.

In the
circumstances of an SVP hearing, placing the burden on the person to prove that
he or she is entitled to release is not a denial of due process, and fear of
unwarranted continuing commitment is not reasonably founded. A person petitioning under section 6608 has
already been found beyond a reasonable doubt to be an SVP, i.e., to be an
individual with a mental illness that causes him or her to be likely to
reoffend. Persons suffering mental
disorders causing them to be SVP’s have been recognized as generally requiring
long-term treatment. (See Fla. Stat., §
394.910; Iowa Code, § 229A.1; Kan. Stat. Ann., § 59-29a01; Ramsey, >California’s Sexually Violent Predator
Act: The Role of Psychiatrists, Courts,
and Medical Determinations in Confining Sex Offenders (1999)
26 Hastings Const. L.Q. 468, 488.)
Under such circumstances, it is not unfair or unreasonable to give the
prior adjudication preclusive effect, absent proof of some change in the
committed person’s mental condition.
Hence, where the committed person is the one asserting that change,
contrary to the extant determination of DMH, it is not unfair or unreasonable
to require the committed person to carry the burden of proof. (See Evid. Code, § 500 [“a party has the
burden of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that he is asserting”].)

III

Equal Protection

Defendant
contends that committing him to the DMH for an indeterminate period violates
state and federal principles of equal protection because MDO’s and NGI’s,
groups with which he is similarly situated, are not subject to indeterminate
commitments and can more readily obtain review of their commitments. We conclude no equal protection violation has
been shown.

“The ‘first
prerequisite’ to an equal protection claims is ‘ “a showing that the ‘state has
adopted a classification that affects two or more similarly situated groups in
an unequal manner.’ ” . . .’ [Citation.] [¶] .
. . The state ‘may adopt more than one procedure for isolating, treating, and
restraining dangerous persons; and differences will be upheld if
justified. [Citations.] Variation of the length and conditions of
confinement, depending on degrees of danger reasonably perceived as to special
classes of persons, is a valid exercise of power.’ [Citation.]
[¶] ‘Strict scrutiny is the
appropriate standard against which to measure claims of disparate treatment in
civil commitment. [Citations.]’ [Citation.]
Under the strict scrutiny standard, ‘ “ ‘the state bears the burden of establishing not only that it has a >compelling interest which justifies the
law but that the distinctions drawn by the law are necessary to further its purpose.’
[Citation.]” [Citation.]’ [Citation.]”
(People v. Hubbart (2001)
88 Cal.App.4th 1202, 1216-1217.) “The
state has compelling interests in public safety and in humane treatment of the
mentally disturbed. [Citation.] It may adopt more than one procedure for
isolating, treating, and restraining dangerous persons; and differences will be
upheld if justified. [Citations.] Variation of the length and conditions of
confinement, depending on degrees of danger reasonably perceived as to special
classes of persons, is a valid exercise of state power.” (Conservatorship
of Hofferber (1980) 28 Cal.3d 161, 171-172, fn. omitted.)

In >McKee I, the Supreme Court determined
that, contrary to the Court of Appeal’s initial determination, SVP’s were
similarly situated with MDO’s and NGI’s for purposes of obtaining release from
their respective commitments and that the appropriate standard for analyzing
whether differing treatment was justified was that of strict scrutiny, i.e.,
whether the state has a compelling interest in treating the classes
differently. (McKee I, supra, 47
Cal.4th at pp. 1207-1210.) The Supreme
Court then remanded the case to the trial court “to permit the People the
opportunity to justify the differential treatment in accord with established
equal protection principles.” (>Id. at p. 1184.)

The
superior court concluded the evidence presented by the People constituted
substantial evidence to support a reasonable perception that SVP’s pose a
greater danger to society than do MDO’s and NGI’s. (McKee
II, supra, 207 Cal.App.4th at p.
1347.) The Court of Appeal, after conducting
an independent review of the evidence, agreed with the trial court. The appellate court found that the People’s
evidence had established “ ‘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 .
. . that the disparate treatment of SVP’s under the amended [SVPA] is necessary
to further the state’s compelling interests in public safety and humanely
treating the mentally disordered.
[Citation.]” (>Ibid.)

The equal
protection issue raised by McKee I now
having been resolved and no grounds having been advanced for rejecting that
decision, we agree with McKee II and
therefore reject defendant’s equal protection challenge.

DISPOSITION

The judgment is affirmed.





RAYE , P. J.





We concur:





HULL , J.





BUTZ , J.