Filed
9/11/12 P. v. Olsen CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff
and Respondent,
v.
WILLIAM
KARL OLSEN,
Defendant
and Appellant.
H036654
(Santa
Clara County
Super. Ct. No. 210555)
I. INTRODUCTION
The People filed an amended petition
to extend the commitment of William Karl Olsen under the
Welf. & Inst. Code, § 6600 et seq.)
after his commitment expired on October 5,
2008. The SVPA provides for the
involuntary civil commitment for
treatment and confinement of an individual who is found, by a unanimous jury
verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt (§ 6604),
to be a sexually violent predator (hereafter, sometimes SVP). A jury found the allegation that Olsen was a
sexually violent predator to be true. By
order filed on February 22,
2011, the trial court committed Olsen to the state Department of Mental
Health for an indeterminate term.
On appeal, Olsen raises the
following issues: (1) the evidence was
insufficient to show that he is currently dangerous; (2) the trial court’s
response to juror question No. 5 was improper; (3) indeterminate commitment
under the SVPA violates his constitutional right to equal protection; and (4)
the SVPA violates his due process rights and the ex post facto and double
jeopardy clauses and the Eighth and
Fourteenth Amendments of the federal constitution.
Pursuant to the ruling of the
California Supreme Court in People v.
McKee (2010) 47 Cal.4th 1172 (McKee)
that the equal protection challenge to the indeterminate term under the SVPA
has potential merit, we will reverse the judgment and remand the matter for
further proceedings consistent with McKee. We find no merit in the remaining issues raised by
Olsen, for the reasons stated below.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Commitment
Petition
On September 26, 2008, the People
filed an amended petition to extend Olsen’s commitment as a sexually violent
predator under the SVPA. The petition
stated that on October 5, 2000, Olsen was committed as a sexually violent
predator to the state Department of Mental Health for two years, and since that
date he “has been consistently committed to a new term as a Sexually Violent
Predator.â€
meet the criteria for commitment as a sexually violent predator in that he
continues to have a current diagnosed
him a danger to the health and safety of others in that it is likely that he
will engage in sexually violent criminal behavior in the future.â€
After a probable cause hearing was
held, the trial court issued its July 2, 2010 order finding that there was
probable cause to believe that (1) Olsen had been convicted of a qualifying
sexually violent offense against at least one victim; (2) he has a diagnosable
mental disorder; (3) the disorder makes it likely that he will engage in
sexually violent criminal conduct if released; and (4) the sexually violent
criminal conduct will be predatory in nature.
Thereafter, the case proceeded to a jury trial.
B. Jury
Trial
trial on the September 26, 2008 petition to extend Olsen’s commitment under the
SVPA began on January 31, 2011. The
following summary of pertinent trial evidence is taken from the reporter’s
transcripts of the trial.
1. Background
five, Olsen was placed in foster care due to his mother’s health problems. He later graduated from high school and
worked as a mechanic and truck driver.
He also served in the Army in Vietnam.
Olsen has been married twice and has an adult daughter. At the time of trial, Olsen was 61 years old.
four expert witnesses considered the following six incidents from Olsen’s
criminal history in developing their opinions.
In 1972, Olsen used a handgun to
abduct a 27-year-old woman in her car.
After a struggle, Olsen got out of the car and left. There was no indication that a sexual offense
had occurred and Olsen was convicted of “grand theft of a person.†He served a jail sentence and was placed on
probation.
The next incident took place in July
1973, when Olsen picked up two teenage girls, M. and T., who were
hitchhiking. After taking the girls to
an isolated area where his truck got stuck in the dirt, Olsen had them stand on
the truck bed to gain traction. He then
pushed T. down a 75-foot ravine and hogtied M.
After finding T. and threatening her with a knife, Olsen saw that T. was
bleeding profusely. He untied M. and
together they brought T. back up to the truck.
When the girls asked Olsen why he was doing this, he said he intended to
rape them. Olsen did not rape the girls
and instead took them home.
In August 1973, Olsen picked up an 19-year-old
hitchhiker, M.L., and took her to an isolated area. When Olsen took out a rope, M.L. pleaded with
him not to tie her up. Olsen then ripped
off M.L.’s blouse and M.L. said she would do what he wanted her to do. After placing M.L. on the truck bed and
raping her, Olsen apologized. M.L. asked
him to take her to the hospital because she recently had
miscarriage. Olsen took M.L. to the
hospital and checked himself into the psychiatric unit next door.
Olsen was incarcerated in 1974 and
paroled in 1978. He was discharged from
parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl, was picked up by
Olsen in January 1980 while she was hitchhiking and taken to Stevens Creek
dam. After arriving, Olsen, who had
knife, hit C. below the eye and tied her up with rope. Olsen then took C. to another location in the
mountains. There, Olsen put a rope
around C.’s neck and walked her up a trial to a desolate location, where he
orally copulated C., sat on her, untied her, and forced her to orally copulate
him. Olsen also sodomized C. and raped
her. He then apologized and took C.
home.
The next incident occurred in June
1980 and involved S.P., age 19. Olsen
picked S.P. up while she was hitchhiking.
He put his knife to her throat and cut her slightly, and also orally
copulated her. Next, Olsen took S.P. to
an isolated area in the mountains, where he tied her hands behind her back with
a belt. S.P. screamed in pain when Olsen
put his fingers in her anus and then sodomized her. He also made derogatory sexual statements
during the course of the sodomy.
The last incident occurred on July
9, 1980, about one month after the incident involving S.P. K. was a 17- year-old beauty college student
who met Olsen when he used a pay phone after she used it during her lunch
hour. Later that day, Olsen called K.
over to his car when she came out of the beauty college. Olsen then pulled K. into his car by holding
a knife to her throat. Olsen had
pictures of K. in his car and threatened to kill her.
After getting K. into his car, Olsen
tied a rope painfully tight around her neck and gagged her with a cloth and
shoestrings. Olsen then drove K. to an
isolated area in the hills. On the way,
Olsen undressed K. and fondled her.
After arriving, Olsen tied K. to a log with ropes attached to her
wrists, legs, and neck. He then hit K.
in the buttocks with a stick, causing bruises, and sodomized and raped
her. After finishing the assault, Olsen
was pleasant and talkative with K. He
also showed her how to shoot his BB gun.
But when K. made the comment, “well, everyone needs friends,†Olsen became
very angry and violent. He pushed K.
down, sodomized her again, bit her neck, and hit her on the buttocks with his
BB gun, breaking it.
Following the 1980 offenses, Olsen
pleaded guilty to the sodomy and oral copulation of C. and the sodomy and rape
of K. He has been in custody since 1980.
Witness Testimony
Robert Owen, Ph.D. is a licensed
clinical psychologist in private practice.
Since 1986, he has conducted sexually violent predator evaluations for
the Department of Mental Health. The
trial court recognized Dr. Owen as an expert in “the diagnosis of mental
disorders, treatment, and risk assessment of sex offenders.â€
Dr. Owen began his evaluation of
Olsen in 2008. At that time, he reviewed
Olsen’s criminal record and psychological reports by other evaluators. Dr. Owen also interviewed Olsen on three
occasions, in 2009, 2010, and 2011. In
Dr. Owen’s opinion, Olsen has the following mental disorders: “sexual sadism, with gender identity
disorder, and with a personality disorder involving borderline traits.â€
Dr. Owen explained that the diagnosis
of sexual sadism requires a pattern of sadistic behavior over a period of at
least six months, in which the person is sexually aroused by the physical or
psychological harm inflicted upon a nonconsenting victim. Dr. Owen also explained that a sexual sadist
is different from a “typical rapist†due to the “amount of violence that he’s
used. . . . A person has
to be turned on to violence or degradation of victims.†Dr. Owen further opined that sexual sadism is
a chronic condition that does not spontaneously disappear.
The diagnosis of sexual sadism for
Olsen was based largely on Dr. Owen’s finding that Olsen’s history of sexual
offenses showed that he is sexually aroused in combination with violence and
inflicting pain and degradation on the female victim. Dr. Owen also considered Olsen’s social
history and Olsen’s statements about his homosexual activity, which included a
male lover and cross-dressing.
Although Dr. Owen acknowledged that
Olsen had behaved well during his 30 years of incarceration, that did not
change Dr. Owen’s opinion that Olsen is a sexual sadist. Dr. Owen pointed out that Olsen had resumed
committing sadistic sex offenses after his first incarceration, had not engaged
in any treatment for sexual deviance, and lacked insight into what triggered
his sex offenses. Additionally, it did
not surprise Dr. Owen that Olsen had not engaged in sadistic rape while in
custody, since it is unusual for sex offenders to commit rape in prison and
“there are a couple of things missing in custody, his truck, his knife, his
rope, and teenage girls.â€
Dr. Owen also concluded that Olsen
is a “volitionally impaired individual†because he has “struggled to contain
these sadistic impulses†and had been undeterred from committing further sex
offenses after serving a term in prison.
In his opinion, Olsen’s mental disorder of sexual sadism is an
“entrenched†condition that “causes volitional and emotional impairment†and
renders him “likely to engage in sexually violent predatory criminal behavior.â€
Additionally, Dr. Owen used risk
assessment tools to evaluate Olsen, including the Static-99, which placed him
in the moderate high risk category for committing future sexual offenses, and
the MnSOST-R, which placed him in the highest risk category. Dr. Owen’s opinion is that Olsen falls
between the moderate high to high risk categories for sexual reoffending.
Dale Arnold, Ph.D. is a clinical
psychologist who has treated sex offenders at Atascadero State Hospital and is
currently in private practice. He also
performs sex offender evaluations under contract with the Department of Mental
Health. The trial court recognized Dr.
Arnold as an expert in the diagnosis of mental disorders, treatment of sex
offenders, and recidivism.
Dr. Arnold was first assigned to
evaluate Olsen in 2004. His evaluation
included reviewing Olsen’s records, including court records, police records,
medical reports, prison records, and state hospital records. Dr. Arnold also interviewed Olsen in 2009,
2010, and 2011. He formed the opinion
that Olsen has currently diagnosed mental disorders, including sexual sadism,
polysubstance dependence in institutional remission, gender identity disorder,
and a personality disorder with antisocial and borderline personality traits.
Regarding the diagnosis of sexual
sadism, Dr. Arnold found that the significant aspects of Olsen’s sex offenses
were using rope to bind the victims, increasing the victims’ fear, humiliating
the victims, causing pain, and gratuitous violence. Dr. Arnold also noted that Olsen had
admitted giving a false history of substance abuse to gain an advantage when he
was in jail and was now claiming that he committed the sex offenses due to his
unresolved gender identity issue. Dr.
Arnold did not believe that a gender identity conflict caused Olsen to abduct
the victims, tie them up, and force sex on them “because most transgender
persons or homosexually oriented persons don’t express this level of anger and
violence towards females . . . .†He
also stated, “Honestly it just makes no sense.
Because you feel like a woman in a man’s body, it doesn’t make sense
that you would then . . . abduct people, and tie them up, and then force sex
with them. So there’s no correlation.â€
Additionally, Dr. Arnold found it
significant that Olsen has consistently declined to engage in treatment for
sexual sadism and believes that he has no risk of reoffending, since this
attitude indicates his potential for failing to manage risk factors in the
future. Olsen’s antisocial personality
trait of dishonesty was also significant to Dr. Arnold.
Dr. Arnold believes that Olsen’s
sexual sadism affects his emotional or volitional capacity in a way that
predisposes him to commit criminal sexual acts in a degree making him a menace
to the health and safety of others.
According to Dr. Arnold, Olsen showed volitional impairment when he
was released from prison in 1978 and surprised himself by reoffending in
1980. In Dr. Arnold’s opinion, sexual
sadism is a sexual orientation that “tends to be something that is chronic and
lifelong.†The fact that Olsen has not
raped anyone while in custody did not alter Dr. Arnold’s opinion, since
Olsen has not had the opportunity to do the things that sexually arouse him,
such as isolating a victim, driving her up to the mountains, or tying her up
and walking her down a path.
Dr. Arnold also conducted a risk
assessment using several tools. The
Static-99 Revised test placed Olsen in the moderate high risk category; the
Static 2002 Revised test placed him in the low moderate risk category; and the
MnSOST-R test placed Olsen in the “most serious group.†Dr. Arnold concluded that Olsen poses a
serious and well-founded risk for committing future sexually violent predatory
acts. He believes that the mental disorder
that predisposes Olsen to commit such acts is sexual sadism, not a
Brian Abbott, Ph.D. is a licensed
clinical psychologist and licensed clinical social worker who testified on
behalf of Olsen. His background includes
treatment and diagnosis of sex offenders for the past 32 years. Dr. Abbot does not perform evaluations for
the state Department of Mental Health because he has concerns that the methodology
used does not meet current scientific standards. The trial court recognized Dr. Abbott as an
expert in the area of evaluating, diagnosing, treating, and assessing the risk
of sex offenders.
To evaluate Olsen, Dr. Abbott
reviewed his records, including hospital records and criminal justice
records. He also interviewed Olsen and
administered psychological tests.
Although Dr. Abbott recognized that Olsen had committed very serious
crimes, he concluded that Olsen does not have an antisocial personality
disorder because his symptoms are insufficient.
Dr. Abbott also determined that Olsen does not have a diagnosis of
sexual sadism, based on the “Cumulative Severe Sexual Sadism Scale.†According to Dr. Abbott, none of Olsen’s
offenses “reached the cut-off for the diagnosis of sexual sadism.†Dr. Abbott also determined that Olsen does
not currently suffer from sexual sadism because he has not displayed any
symptoms for the past 30 years, meaning he has not been known to view
pornography depicting sexual sadism, has not attempted to sexually assault
someone, and has not engaged in sexual activity within the custodial setting
that involved sadistic role-play.
Dr. Abbott believes that Olsen is a
nonsadistic rapist, which is not a mental disorder, and has acted out his anger
and hatred towards females through sexually offending behavior due to the
events of his early childhood. Dr.
Abbott also believes that Olsen committed the sexual assaults to displace his
anger about his gender identity conflicts.
In Dr. Abbott’s opinion, Olsen does not suffer from a currently
diagnosed mental disorder that makes it likely that he will reoffend in a
sexually violent and predatory manner and he does not currently have difficulty
controlling his behavior in that regard.
Dr. Abbott acknowledged that Olsen’s
score on the Static-99R risk assessment tool placed him in the moderate high
range of relative risk. According to Dr.
Abbott, the Static-99R test, although it is generally accepted in the field of
risk assessment, is not accurate for predicting Olsen’s individual risk of
recidivism because it is group-based.
Park, Ph.D. is a clinical psychologist who testified on behalf of Olsen. He has been trained to treat sex offenders
since the late 1970’s. In addition to
private practice, Dr. Park is employed by the California Department of
Corrections and Rehabilitation where his caseload for the Chico Parole Unit is
mostly comprised of sex offenders. The
trial court recognized Dr. Park as an expert in the areas of the treatment,
diagnosis, and risk assessment of sex offenders.
Dr. Park was asked to determine
whether Olsen fits the criteria of the SVPA because he has a mental disorder
that predisposes him to commit sexual crimes.
His evaluation included interviewing Olsen three times and reviewing his
records from Coalinga State Hospital, previous evaluations, and medical
records. Dr. Park also conducted
psychological testing, including the Minnesota Multiphasic Personality
Inventory and the “Million.†The test
results showed that Olsen does not have a borderline personality disorder, and
he did not score significantly on the antisocial personality scale or the
narcissistic personality scale.
Although Dr. Park acknowledged the
facts of Olsen’s prior sex offenses, he determined that these facts were not
consistent with sexual sadism because a diagnosis of sexual sadism requires
sexual arousal from the victim’s pain, not just the victim’s humiliation. Dr. Park also noted that Olsen apologized
after sexually assaulting the victims and took them home, which in his view is
also inconsistent with sexual sadism.
Dr. Park therefore concluded that Olsen does not currently suffer from
sexual sadism.
In Dr. Park’s opinion, Olsen does
not have a serious and well-founded risk of reoffending, because he is now 61
years old and age lowers the risk of low or moderate indicated by the risk
assessment tests. Dr. Park also opined
that Olsen does not have a condition that would predispose him to commit
violent sexual offenses.
Olsen testified that he is 61 years
old and now refers to himself as a woman, although he has not undergone sex
change surgery. He admitted that he was
convicted of raping three girls, including M.L. in 1973 and C. and K. in
1980. He intended to rape M. and T. but
changed his mind.
Olsen acknowledged the facts of his
prior sexual offenses and explained that he was on drugs at the time and was
cross-dressing in secret. He was angry
because he felt that he did not have any control in his life and he was also
angry at women who had hurt him, such as the foster mother who abused him, his
older sister, his first wife who aborted their child, and his second wife whose
child was still born. He expressed his
anger through rape “[b]ecause it was a control issue†and because he
“identified [himself] as a woman [he] took it out on women.â€
Olsen has not participated in sex
offender treatment while in custody at either Atascadero State Hospital or
Coalinga State Hospital. He believes
that the programs do not work because no one has been released, except through
a judge’s order, and he has seen other people get worse despite treatment. On his own, Olsen is utilizing a workbook
designed for sexual offenders. Olsen
does not believe that he is at risk to reoffend, although he had the same
belief when he was released from prison in 1978.
Two employees of Coalinga State
Hospital, Anita Valdez and Judith Heaton, also testified.
Valdez is a licensed psychiatric
technician who administers medication to Olsen on a daily basis. Her conversations and interactions with Olsen
are pleasant. He is allowed to travel
freely within the hospital because he has a “house level card†for good
behavior.
Valdez wears a small panic button
that she can press if she feels threatened.
The hospital’s security also includes a fence around the perimeter with
watchtowers, locked doors, security cameras, and an in-house police department
that patrols the facility. Patients are
not allowed to possess knives or rope.
Heaton is a registered nurse who
makes wellness and recovery plans for patients.
Until recently, she had daily contact with Olsen when she worked on his
unit. She currently sees him on a weekly
basis in a group setting. Olsen is
allowed to walk freely though the hospital.
He also works in the laundry and is an advocate for his peers. Heaton has never been concerned about her
safety around Olsen, although she has seen him become frustrated. She wrote a verbal behavior report in 2010
when he made profane and derogatory comments after his hormone medication was
discontinued.
3. Jury Verdict and Commitment Order
18, 2011, the jury rendered its verdict finding the petition alleging that
Olsen was a sexually violent predator within the meaning of section 6600 to be
true. On February 22, 2011, the trial
court issued its order committing Olsen to the custody of the State Department
of Mental Health for an indeterminate term for appropriate treatment and confinement
in a secure facility, pursuant to section 6604. The order further states that it is “subject
to a hearing consistent with [McKee,
III. DISCUSSION
A. Sufficiency
of the Evidence
contends that the verdict that he is a sexually violent predator cannot be
sustained because the evidence was insufficient to show beyond a reasonable
doubt that he is currently dangerous and “likely to engage in sexually violent
criminal behavior.†Specifically, Olsen
argues that the People’s experts improperly relied almost exclusively on his
criminal history, in violation of section 6600, subdivision (a)(3), and
“largely ignored†the evidence that he was 61 years old and had not committed
any acts of sexual sadism or violence for over 30 years.
The People respond that there was
suffers from a current mental disorder and is likely to commit a future sexual
offense if released from custody, based on the expert testimony of Dr. Owen and
Dr. Arnold.
1. The
Statutory Criteria
Our evaluation of the parties’
contentions begins with the statutory criteria for a finding that a person is a
sexually violent predator under the SVPA.
Section 6600, subdivision (a)(1)
provides: “ ‘Sexually violent
predator’ means a person who has been convicted of a sexually violent offense
against one or more victims and who has a diagnosed mental disorder that makes
the person 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.†The California Supreme Court instructed in
engage in sexually violent criminal behavior (i.e., reoffend) if he or she
‘presents a substantial danger, that is, a serious and well-founded risk, that
he or she will commit such crimes if free in the community.’ [Citation.]â€
(McKee, supra, 47 Cal.4th at p. 1186.)
Our Supreme Court has also
instructed, with regard to the interpretation of section 6600, subdivision
(a)(1), that “[t]he phrase, ‘danger to the health and safety of others,’ is
accompanied by language making clear that proof of a ‘recent overt act’ or
crime ‘in custody’ is not required. ([§
6600], subds. (d) & (f).)†(
Cal.4th 1138, 1144.)
On the other hand, “prior crimes
play a limited role in the SVP
determination. [Citation.]†(Moore
v. Superior Court (2010) 50 Cal.4th 802, 817 (Moore).) Section 6600,
subdivision (a)(3) provides in part:
“Conviction of one or more of the crimes enumerated in this section
shall constitute evidence that may support a court or jury determination that a
person is a sexually violent predator, but shall not be the sole basis for the
determination. . . . Jurors shall be
admonished that they may not find a person a sexually violent predator based on
prior offenses absent relevant evidence of a currently diagnosed mental disorder
that makes the person 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.â€
The statutory definition of “
‘[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.â€
(§ 6600, subd. (c).)
California Supreme Court has “made clear that a person is predisposed and
likely to reoffend as an SVP if, because of a current mental disorder making it
difficult to restrain sexually violent
he [or she] presents ‘a substantial danger, that is, a serious and well-founded
risk’ that he [or she] will commit such crimes if released. [Citation.]â€
(Moore, supra, 50 Cal.4th at p. 815.)
The statutory scheme also provides
the burden of proof: “The court or jury
shall determine whether, beyond a reasonable doubt, the person is a sexually
violent predator.†(§ 6604.)
2. Standard of Review
evidence in proceedings held pursuant to the SVPA, we “review
the entire record
in the light
most favorable to
the judgment to
determine whether
below. [
the evidence must
be ‘ “of ponderable
legal significance . . .
credible and of
solid value.†’ [
Moreover, “
‘[i]n reviewing the
the sufficiency of
the evidence this
court may not
redetermine the credibility
of witnesses, nor
reweigh any of
the evidence, and
must draw all
reasonable inferences,
of the judgment.’ [Citation.]†(People
v. Sumahit (2005) 128 Cal.App.4th 347, 352 (Sumahit).)
3. Analysis
standard of review, we determine that the evidence was sufficient for the
jurors to find beyond a reasonable doubt that Olsen is a sexually violent
predator within the meaning of the SVPA.
Olsen challenges the sufficiency of
the evidence for the required finding that he has a mental disorder that
affects his emotional or volitional capacity and predisposes him to commit
criminal sexual acts in a degree constituting the person a menace to the health
and safety of others. (§ 6600, subd.
(c).) According to Olsen, the People’s
experts violated section 6600, subdivision (a)(3) by relying almost entirely on
his criminal history in forming their opinions.
We disagree.
The People’s expert witnesses, Dr.
Owen and Dr. Arnold, both diagnosed Olsen with the mental disorders of sexual
sadism, gender identity disorder, and a personality disorder. Dr. Arnold additionally diagnosed Olsen with
polysubstance dependence in institutional remission. Dr. Owen and Dr. Arnold shared the opinion
that sexual sadism is a chronic and lifelong condition that causes Olsen to be
volitionally impaired and predisposes him to engage in sexually violent
predatory criminal acts. This expert
testimony was sufficient for the jurors to find that Olsen has a diagnosed
mental disorder within the meaning of section 6600, subdivision (c) that
renders him currently dangerous. (
The contrary opinions of Olsen’s
expert witnesses, Dr. Abbott and Dr. Park, which were apparently rejected by
the jurors, do not affect the sufficiency of the evidence regarding Olsen’s
diagnosed mental disorders and current dangerousness. It is well established that “[t]he
credibility and weight of the expert testimony was for the jury to determine,
and it is not up to us to reevaluate it.
[Citations.]†(
625, 633.)
We are also not convinced by Olsen’s
argument that the testimony of Dr. Owen and Dr. Arnold did not constitute
sufficient evidence of Olsen’s mental disorders and current dangerousness
because they “largely ignored†the evidence that he was 61 years old and had
not committed any acts of sexual sadism or violence for over 30 years. The record reflects that both Dr. Owen and
Dr. Arnold considered Olsen’s age and institutional behavior in forming their
opinions.
Dr. Owen acknowledged that the risk
of sexually reoffending declines with age, but he explained that the Static-99R
risk assessment tool adjusted for age and the result was that Olsen’s risk was
decreased from “high to moderate high due to his age.†Dr. Arnold also testified that the Static-99R
risk assessment tool took Olsen’s age into consideration in evaluating his risk
of reoffending. Additionally, Dr. Arnold
stated that Olsen’s age was not a protective factor because “he’s quite
active. He’s able to . . . run on the
treadmill, play racquetball, things of that sort. So I don’t think he has impaired mobility
that’s going to reduce his chance of sexually re-offending.â€
Dr. Owen and Dr. Arnold also
considered the fact that Olsen had not committed any acts of sexual sadism or
violence during his past 30 years in custody.
That fact did not change Dr. Owen’s opinion that Olsen is a sexual
sadist, since the record also showed that Olsen had resumed committing sadistic
sex offenses after his first incarceration, had not engaged in any treatment
for sexual deviance, and lacked insight into what triggered his sex
offenses. Although Dr. Owen acknowledged
that Olsen had not engaged in sadistic rape while in custody, Dr. Owen found
that was not surprising in light of the things not available to Olsen in custody,
including Olsen’s “truck, his knife, his rope, and teenage girls.â€
Dr. Arnold similarly concluded that
the fact that Olsen has not raped anyone while in custody did not alter his
opinion that Olsen’s diagnosis of sexual sadism causes him to be volitionally
impaired and predisposes him to engage in sexually violent predatory criminal
acts. Dr. Arnold noted that Olsen did
not have the opportunity while in custody to do the things that sexually arouse
him, such as isolating a victim, driving her up to the mountains, or tying her
up and walking her down a path.
Finally, we note that Dr. Owen and
Dr. Arnold properly considered Olsen’s failure to undergo treatment during his
commitments as a sexually violent predator.
Dr. Arnold testified that “the other thing that’s most significant is
that since having had the opportunity to engage in quite comprehensive
treatment for this disorder [sexual sadism], he’s consistently declined to do
so for at least the last ten years, . . . .â€
The California Supreme Court has ruled that “it would be reasonable to
consider the person’s refusal to cooperate in any phase of treatment provided
by the Department [of Mental Health] . . . as a sign that the person is not
prepared to control his untreated dangerousness by voluntary means if released
unconditionally to the community.†(
27 Cal.4th 888, 929.)
For these reasons, we find no merit
in Olsen’s challenge to the sufficiency of the evidence regarding his mental
disorders and current dangerousness.
B. Juror
Question No. 5
1. Background
deliberations, the jurors submitted juror question No. 5, which stated: “To find that [Olsen] suffers from a
diagnosed mental disorder does that mental disorder have to be sexual sadism?â€
The trial court provided the jurors
with a written answer to juror question No. 5, over defense counsel’s
objection, as follows: “You must base
your verdict only on the evidence received in the trial. [¶] As
defined in Instruction 3454, ‘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.’ [¶] In order to find [Olsen] a sexually violent
predator, you must find [Olsen] currently has a ‘diagnosed mental
disorder.’ If you do not find [Olsen]
has a ‘diagnosed mental disorder’ you must find the Petition Untrue. [¶]
‘diagnosed mental disorder,’ you are not, however, required to unanimously
agree on which ‘diagnosed mental disorder’ [Olsen] has. You must unanimously agree that [Olsen]
currently has a ‘diagnosed mental disorder’ and that as a result of a ‘diagnosed
mental disorder,’ [Olsen] is a danger to the health and safety of others
because it is likely that [he] will engage in sexually violent predatory
criminal behavior. The People have
the burden of proving this beyond a reasonable doubt.†(Italics added.)
2. The Parties’ Contentions
to juror question No. 5 was improper and violated his right to due process.
to Olsen, there was substantial evidence of only one diagnosed mental disorder,
sexual sadism, that predisposed him to commit criminal sexual acts. He therefore argues that instructing the
jurors that they did not have to unanimously agree that he suffers from a
specific mental disorder—sexual sadism—allowed the jurors to make an inference
regarding other mental disorders that was not supported by the evidence and
lowered the People’s burden of proof.
Olsen also argues that reversal is
required under Griffin v. United States (1991)
502 U.S. 46 and People v. Guiton (1993)
4 Cal.4th 1116 because juror question No. 5 indicated that some jurors
based their finding on a mental disorder other than sexual sadism, although
there was not sufficient evidence of another mental disorder that predisposed
him to commit criminal sexual acts.
Olsen additionally contends that the trial court’s error in answering
juror question No. 5 constitutes reversible error because it did not constitute
harmless error under either the Chapman
v. California (1967) 386 U.S. 18 standard (error was harmless beyond a
reasonable doubt) or the People v. Watson
(1956) 46 Cal.2d 818 standard (where not reasonably probable that a more
favorable result would have been obtained absent the error, the error is
harmless).
The People argue to the contrary
that the trial court’s answer to juror question No. 5 properly clarified
the instruction previously given, CALCRIM No. 3454,
jury that it was not required to unanimously agree on a diagnosed mental
disorder. Alternatively, the People
maintain that even assuming the evidence showed that sexual sadism was the only
mental disorder that resulted in Olsen’s predisposition to commit criminal
sexual acts, the trial court properly instructed the jurors that a currently
diagnosable mental disorder “must ‘predispose that person to commit criminal
sexual acts to an extent that makes him or her a menace to health and safety of
others.’ â€
3. Analysis
cases, “[t]he court has a primary duty to help the jury understand the legal
principles it is asked to apply.
[Citation.] This does not mean
the court must always elaborate on the standard instructions. Where the original instructions are themselves
full and complete, the court has discretion under [Penal Code]
section 1138 to determine what additional explanations are sufficient to
satisfy the jury’s request for information.
[Citation.] . . . It should decide as to each jury question
whether further explanation is desirable, or whether it should merely reiterate
the instructions already given.†(
97.)
The trial court’s duty is similar in
civil cases. Where the jury seeks
further guidance during its deliberations by asking questions, it is “
‘incumbent on the trial court to give instructions on all the vital issues in
the case so that the jury w[ill] have a full and complete understanding of the
law applicable to the facts.’
[Citation.] ‘The responsibility
for adequate instruction becomes particularly acute when the jury asks specific
guidance.’ [Citation.]†(Bartosh
v. Banning (1967) 251 Cal.App.2d 378, 387.)
The standard of review for a claim
of error in the trial court’s response to a juror question is abuse of
discretion. “An appellate court applies
the abuse of discretion standard of review to any decision by a trial court to
instruct, or not to instruct, in its exercise of its supervision over a
deliberating jury. [Citation.]†(People
v. Waidla (2000) 22 Cal.4th 690, 745-746; see also People v. Smithey (1999) 20 Cal.4th 936, 985.)
We determine that the trial court
did not abuse its discretion when the court responded to juror question No. 5
by instructing the jurors that they were not required to unanimously decide
which diagnosed mental disorder Olsen currently has. This court has ruled that “[a]n SVP
proceeding is civil, not criminal, and the unanimity requirement for an SVP
proceeding is established by statute.
[Citation.] Under the SVPA, the
jury must determine whether the requirements for classification as an SVP have
been established ‘beyond a reasonable doubt’ and the jury’s
There is no statutory requirement regarding unanimity for each subpart
of the SVP determination.†(
322, 347 (Carlin); see also
41, 59 [criminal rule requiring unanimity instruction does not apply in civil
commitment proceedings under the SVPA].)
Accordingly, the trial court was not
required under the SVPA to give a unanimity instruction in response to juror
question No. 5 that instructed the jurors to unanimously agree regarding the
issue of which diagnosed mental disorder Olsen currently has, since that issue
is a “subpart†of the determination as to whether a person is a sexually
violent predator. (§ 6600, subd.
(a)(1).)
Moreover, the trial court’s response
to juror question No. 5 also included a correct unanimity instruction, as
follows: “You must unanimously agree
that [Olsen] currently has a ‘diagnosed mental disorder’ and that as a result
of a ‘diagnosed mental disorder,’ [Olsen] is a danger to the health and safety
of others because it is likely that [he] will engage in sexually violent
predatory criminal behavior.†The trial
court therefore properly instructed the jurors that their ultimate decision as
to whether Olsen has a currently diagnosable mental disorder that meets the
statutory criteria for classification as a sexually violent predator under the
SVPA must be unanimous. (§ 6604;
As the People note, we presume that jurors “understand and follow the
court’s instructions. [Citation.]†(People
v. Holt (1997) 15 Cal.4th 619, 662.)
Accordingly, we determine that the
trial court did not err in the further instructions the court gave in response
to juror question No. 5.
C. Equal Protection
According to Olsen, the
SVPA violates the state and federal equal protection clause because it treats
persons committed as SVPs differently than persons committed under other civil
commitment schemes.
In McKee, the California Supreme Court determined that SVPs and
mentally disordered offenders (MDOs; Pen. Code, § 2960 et seq.) are similarly
situated for equal protection purposes because their commitments have common
features: they have been found to suffer
from mental disorders that render them dangerous to others; they have been
convicted of a serious or violent felony; and at the end of their prison terms,
they are committed to the Department of Mental Health for treatment. (McKee,
supra, 47 Cal.4th at p. 1203.)
The court also
determined that SVPs have “different and less favorable procedural protectionsâ€
than MDOs because, under the amended SVPA, SVPs “are given indeterminate
commitments and thereafter have the burden to prove they should be released
(unless the [Department of Mental Health] authorizes a petition for
release). In contrast, an MDO is
committed for a one-year period and thereafter has the right to be released
unless the People prove beyond a reasonable doubt that he or she should be
recommitted for another year.†(
The McKee court also found that SVPs and persons not guilty of a felony
by reason of insanity (NGIs; Pen. Code, § 1026.5) are similarly situated
and “a comparison of the two commitment regimes raises similar equal protection
problems.†(McKee, supra, 47 Cal.4th
at p. 1207.) Consequently, the court
found that as with MDOs, “the People have not yet carried their burden of
justifying the differences between the SVP and NGI commitment statutes.†(Ibid.)
However, the
People could not meet its burden of showing the differential treatment of SVPs
is justified. The court concluded only
that the People had not yet done so. (
Accordingly, our Supreme Court remanded the case to the trial court to
allow the People an opportunity to “demonstrate the 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, fn. omitted.)
In this case, Olsen
raised his equal protection claim in the proceedings below by filing a pretrial
objection to the imposition of an indeterminate commitment. Additionally, after the verdict was rendered,
defense counsel requested that the trial court indicate in its commitment order
that the commitment was subject to “a McKee hearing.†The requested language was included in the
February 22, 2011 commitment order, which states that it is “subject to a
hearing consistent with [McKee,
On appeal, Olsen
contends that since he timely objected to the indeterminate commitment pursuant
to McKee, the trial court erred in
failing to require the People to show that the differential treatment of SVPs
is justified prior to issuing the indeterminate commitment order. Olsen argues his constitutional
violated and reversal of the commitment order is required.
The People raise a
different issue. They contend that the
trial court acted in excess of its jurisdiction by issuing a conditional order
that stated the indeterminate commitment was subject to a later
issue. However, the People acknowledge
that the California Supreme Court has expressed a desire to avoid an
unnecessary multiplicity of proceedings on the equal protection issue. The People accordingly ask that the
commitment order be reversed for the limited purpose of “striking the ‘subject
to’ language,†and further ask that the trial court be directed to consider the
equal protection issue in the light of McKee
and to suspend further proceedings pending finality of the proceedings in
We agree that in order to
avoid an unnecessary multiplicity of proceedings, resolution of the equal
protection issue in this case should await resolution of the proceedings on
remand in McKee, including any
resulting proceedings in the Court of Appeal or Supreme Court.
order and remand the case to the trial court for the limited purpose of
reconsidering Olsen’s equal protection argument in light of
will also direct the trial court to suspend further proceedings in this case
pending finality of the proceedings on remand in McKee.
Having determined that the
commitment order should be reversed, we need not address the People’s argument
that the trial court’s conditional commitment order exceeded the court’s
jurisdiction. We also need not address
Olsen’s claim, raised for the first time in his reply brief, that the People
“forfeited†the equal protection issue by not filing a response to his pretrial
objection to the indeterminate commitment.
D.
Constitutional Claims
(1) retroactive application of the amendments to the SVPA enacted pursuant to
Proposition 83,
title="">[5]
including the provision for an indeterminate commitment, violates his due
process rights; (2) indeterminate commitment under the SVPA violates his
federal constitutional right to due process; (3) indeterminate commitment
under the SVPA violates his constitutional rights under the ex post facto and
double jeopardy clauses; and (4) indeterminate commitment under the SVPA
violates the Eighth and Fourteen Amendments prohibition against cruel and
unusual punishment.
Olsen
acknowledges that the McKee court
rejected similar constitutional challenges to the amendments to the SVPA
pursuant to Proposition 83, finding in part that the amended SVPA is not
punitive. (McKee, supra, 47 Cal.4th
at pp. 1188-1195.) We are bound by our
Supreme Court’s decision. (
(1962) 57 Cal.2d 450, 455.) Olsen states
that he raises these issues simply to preserve his federal claims, and for that
reason we decline to address them.
IV.
DISPOSITION
state Department of Mental Health is reversed, and the case is remanded to the
trial court for the limited purpose of reconsidering Olsen’s equal protection
argument in light of People v. McKee
(2010) 47 Cal.4th 1172, and the resolution of the proceedings on remand in that
case (id. at pp. 1208-1211). The trial court is directed to suspend
further proceedings in this case pending finality of the proceedings on remand
in McKee. “Finality of the proceedings†shall include
the finality of any subsequent appeal and any proceedings in the California
Supreme Court.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA,
ACTING P.J.
__________________________
GROVER, J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
judicial notice of this court’s opinions in Olsen’s previous appeals, including
People v. Olsen (Nov. 11,
2001, H022135) [nonpub. opn.];
2006, H029046) [nonpub. opn.], and
[nonpub. opn.]. In the last appeal,
committing Olsen to an indeterminate term as an SVP after finding that an
indeterminate term may not be imposed retroactively.
