P. v. Purcell































Filed 3/1/13 P. v. Purcell CA6

Opinion on remand from Supreme Court

>

>

>

>

>

>

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

>

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.









IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




>

THE PEOPLE, Plaintiff and Respondent, v. LANCE DUANE PURCELL, Defendant and Appellant.

H033795 (San Benito County Super. Ct. No. CU0127684)

Lance Duane
Purcell appeals from an order involuntarily committing him for an indeterminate
term to the custody of the Department
of Mental Health (Department) after a jury found him to be a sexually
violent predator (SVP) within the meaning of the Sexually Violent Predator Act
(SVPA). (Welf. & Inst. Code, § 6600
et seq.)href="#_ftn1" name="_ftnref1" title="">[1] Appellant contends: (1) the trial court erred in allowing
evidence of prior SVP commitments to be the focus of the trial, which shifted
the burden of proof to him to prove he
was no longer an SVP; (2) the trial court lacked jurisdiction because the
Department failed to evaluate appellant pursuant to a valid protocol; and (3)
an indeterminate SVP commitment violates due process, equal protection, ex post
facto and double jeopardy provisions of the state and federal
Constitutions.



In August
2010, we rejected most of appellant’s challenges to the petition to extend his
commitment under the SVPA (People v.
Purcell (Aug. 30, 2010,
H033795) [nonpub. opn.]). However, we
remanded the case for proceedings solely on the equal protection claim
consistent with People v. McKee
(2010) 47 Cal.4th 1172 (McKee I). In December 2010, the California Supreme
Court granted appellant’s petition for review and transferred the case back to
our court with directions to vacate our decision and to suspend further
proceedings pending finality of the proceedings on remand in >McKee I, including any appeal and
proceedings in the California Supreme Court.
As directed, we vacated our decision and suspended further proceedings.

After the
trial court in McKee I conducted
further proceedings on McKee’s equal protection claim, it issued an order
committing him as an SVP. McKee
appealed, and the Fourth Appellate District affirmed the commitment order. (People
v. McKee (2012) 207 Cal.App.4th 1325 (McKee
II).) Accordingly, we have lifted
the suspension.

Having
considered appellant’s constitutional contentions in light of >McKee I and McKee II as well as his other contentions, we affirm the order of
commitment.



I. Statement of Facts

At trial, appellant stipulated that
he had suffered qualifying convictions that are predicate offenses under the
SVPA. He raped 18-year-old Barbara and
14-year-old Caroline in 1976, and was sentenced to prison. After his release, he attempted to rape two
other women, Diane and Sally, and he was convicted of assault with a deadly
weapon, false imprisonment and attempted rape in 1983.

Dr. Nancy
Rueschenberg testified as a prosecution
expert. She interviewed appellant in
May 2007 and reviewed his criminal and institutional records. At that time, he was 60 years old.

Dr. Rueschenberg testified
regarding appellant’s developmental history.
This history included: his mother
was sexually abused by her father and she beat her three sons; appellant saw
his older brother rape his younger brother; his mother institutionalized his
older brother; his brother taught appellant to masturbate; and a minister
attempted to fondle appellant. Appellant
was married at age 22 to Nona. During
that relationship, he exposed himself every two to three days. In 1971, he married Arlane and they lived
together for five years. The marriage
ended when he went to prison. During
this marriage, he talked about fantasies regarding rape, illicit sex, and child
molestation. He subsequently lived with
another woman for two years. According
to Dr. Rueschenberg, appellant’s difficulty in a relationship was a
precursor to his committing sexual offenses.

Dr.
Rueschenberg also testified regarding appellant’s nonqualifying offenses. At age 14, appellant was arrested for
indecent exposure, but the case was closed at intake. In May 1962, at age 15, appellant was
arrested for child molestation and placed in a boys ranch. In November 1963, he was arrested for child
molestation and committed to the California Youth Authority. After being paroled for one week, he violated
parole, including victimizing a three-year-old girl. In 1965, at age 18, appellant approached a
nine-year-old girl, told her he was a police officer, and asked her to pull
down her underwear or he would report her to the police department. Appellant then pulled down his own pants and
began masturbating. Appellant was
committed as a mentally disordered offender and sent to Atascadero State
Hospital (Atascadero).

After his
release from the hospital at the age of 22, appellant was arrested four times
for indecent exposure. In 1976, he
approached an 11-year-old girl and a 10-year-old girl and made them looked at a
magazine depicting sexual acts. He was
also charged with the attempted kidnappings of a nine-year-old girl and an
11-year-old girl, both of whom he attempted to force into his car at gunpoint. In addition, he approached a four-year-old
girl and was charged with annoying and molesting a child based on his attempt
to get her into his car so they could play “nasty.” The attempted kidnapping and molestation
charges were dismissed as part of the plea agreement for the qualifying offenses.


In 1982,
appellant was released from prison, and he attempted to rape Diane and
Sally. After his release from prison in
1989, he violated his parole less than six months later when he approached a
seven-year-old child and a nine-year-old child as they were walking home from
school and showed them photos of naked men and women. He also approached a 14-year-old child and a
15-year-old child and showed them an obscene photo. Following his release for the parole
violations, appellant was not in custody for two and one-half years. He then attempted to kidnap a five-year-old
girl at gunpoint. Earlier that day, he
had attempted to kidnap an eight-year-old girl.
Appellant had also put masking tape over the license plate of his van
and had a wig and glasses.

According
to Dr. Rueschenberg, it was significant that appellant’s sexual offenses began
prior to age 15, he committed offenses as both a juvenile and an adult, he had
four qualifying offenses, he had several other offenses that could have been qualifying
offenses, and he had at least 22 victims.
She also noted that he continued to commit sexual offenses despite
repeated incarcerations.

Dr. Rueschenberg concluded that
appellant had a diagnosable mental disorder that predisposed him to committing
criminal sex acts. She diagnosed him
with paraphilia not otherwise specified, pedophilia, exhibitionism, alcohol
abuse, personality disorder with antisocial and narcissistic traits. The paraphilia diagnosis referred to
“recurrent, intense sexually arousing thoughts, fantasies, urges or behaviors
involving . . . the suffering or humiliation of one’s self or one’s partner, or
children or other non-consenting persons.”
According to Dr. Rueschenberg, paraphilia and pedophilia are
considered chronic, lifelong conditions.
She also noted that “[t]here was some indication that it goes down with
age. There’s no specific age
cut-off. It has more to do with whether
the person is healthy or not, whether or not they have completed treatment, if
they’re cooperative with supervision, if they have a stable romantic
relationship, things like that.” Based
on these risk factors, Dr. Rueschenberg did not “adjust downward for
[appellant’s] age.”

Dr.
Rueschenberg evaluated appellant, using the Static-99, which is an actuarial
tool that estimates an individual’s risk for sexual reoffense. Appellant’s score of 9 placed him at high
risk to reoffend. His score was the
highest of any patient that she had ever evaluated. A patient who scores 6 or above has a 27
percent chance of reoffense within five years, and a 33.5 percent of reoffense
within 10 years. Dr. Rueschenberg
conceded that the Static-99 is historical and not predictive. However, she considered other static and
dynamic factors relating to appellant to confirm the risk assessment of the
Static-99. Appellant also scored 15 on
the MnSOST-R, which is considered very high risk.

Dr. Rueschenberg believed that
appellant was likely to reoffend in a sexually violent predatory manner if
released from custody. Though Dr.
Rueschenberg acknowledged that appellant had not committed an offense in 15
years, she pointed out that the “fact that someone hasn’t acted out in a
strictly controlled environment is not proof that they no longer suffer from a
paraphilic disorder.” She also noted
that appellant has reoffended every time that he has been released into the
community and has failed to complete treatment.

Appellant told Dr. Rueschenberg
that “he used to be the SVP poster boy,” but that was no longer true. He also reported that his sex drive had
diminished because he stopped masturbating.
According to Dr. Rueschenberg, appellant was found not amenable to
treatment while he was at Atascadero in 1960.
After his crimes in 1976, appellant received no treatment in
prison. However, appellant enrolled in
the five-phase treatment program at Atascadero following his most recent
commitment. He completed Phase I,
entered Phase II, and was recommended to Phase III. However, appellant did not enter Phase III
because he declined to participate in covert sensitization. Covert sensitization involves creating and
writing detailed deviant sexual fantasies.
Appellant told Dr. Rueschenberg that he had refused to participate in
covert sensitization because he was no longer having deviant sexual
fantasies. His view was that if he was
forced to have deviant sexual fantasies, it would be “going backwards.”

Appellant
testified that he admitted the SVP petition and was committed to Atascadero in
2002. He participated in Phase I of the
treatment program and assumed responsibility for the harm he inflicted on
others. In July 2000, he stopped his
deviant fantasies and his obsessive preoccupation with sex. He stopped masturbating for six months to a
year. When appellant was first
incarcerated in the 1960’s, he did not believe that he would be successful upon
release. He believed that he would not
reoffend upon his release in 1982, but he was wrong. Appellant explained that he was still having
deviant sexual fantasies at that time.
When he was released in 1989, he was not as certain that he would not
reoffend as he had been in 1982.
According to appellant, he had no “paraphilia to trigger at this
point.” He believed that he had
completely changed over the last eight years and he will not reoffend if
released.

Two expert
witnesses testified for the defense. Dr.
Jay Adams interviewed appellant and reviewed his records. She diagnosed him with paraphilia not
otherwise specified and exhibitionism “by history,” that is, his disorder was
no longer active. She noted that there
was no evidence in the last 15 years that appellant had exhibited anything
relating to paraphilia or exhibitionism.
She also testified that there was very little research that paraphilia
is a life-long condition. The chance of
reoffending after age 60 is “probably less than 5 percent.”

Dr. Adams
reviewed appellant’s treatment history.
She noted that he began treatment as soon as he could, which was
unusual, and completed three years of treatment. In Dr. Adams’s opinion, appellant’s reasons
for refusing to participate in covert sensitization were “very well-founded,”
because research has shown that its effectiveness is “minimal to none.” She also testified that the staff at Coalinga
State Hospital attempted to drop covert sensitization from the program, but
were not authorized to do so. According
to Dr. Adams, appellant understood his treatment, was committed to treatment,
and his understanding had helped him to deal with his issues. She also testified that there is no research
to support a requirement that sex offenders must complete all five phases of
the state hospital treatment program to ensure that they are capable of
functioning in the community. Based on
appellant’s age and his participation in treatment, Dr. Adams found that he was
not likely to reoffend if released from custody. Thus, she concluded that he did not meet the
SVP criteria.

Dr.
Charlene Steen also interviewed and evaluated appellant. In addition to reviewing his developmental
and criminal history, Dr. Steen noted that she had worked with appellant in
1983 and remembered him as a “very troubled young man.” According to Dr. Steen, appellant had “done a
lot of work” on relapse prevention, that is, he identified his risk factors and
learned how to “handle them more appropriately.”

Dr. Steen administered a variety of
psychological tests to appellant. He
scored in the normal range on tests of his cognitive ability, had no anger
issues, and scored very low on the Hare Psychopathy Checklist. His score on the Millon Clinical Multiaxial
Inventory reinforced her conclusion that appellant did not have a personality
disorder, and he “barely qualified” as a having a substance abuse disorder on
the Substance Abuse Subtle Screening Inventory.
Regarding substance abuse, Dr. Steen noted that appellant had not used
alcohol or drugs since 1995 despite their availability.

Dr. Steen diagnosed appellant with
mental disorders “by history” because they were “not active now.” They are:
paraphilia not otherwise specified for sex with nonconsenting adults;
pedophilia; alcohol abuse; and exhibitionism.
According to Dr. Steen, the Static-99 is not accurate for
individuals over age 60. She also
testified that the rate of reoffense is lower with age and treatment. The likelihood of reoffense after age 60 is
“very, very small” or about 3 percent.

Dr. Steen concluded that appellant
was not likely to reoffend based on his age, his completion of various
programs, including Father Miskella’s Thinking Skills for Offense Prevention,
and Phases I and II treatment, participation in AA for three years, and family
support. Dr. Steen acknowledged that
appellant dropped out of Phase III treatment, but noted that he continued to
participate in other treatment programs.
In her view, covert sensitization programs have not proven to be very
effective. She testified that appellant
has developed strategies to not have deviant sexual fantasies and has not had
these fantasies for eight years. In her
opinion, it would be “foolish” for him to participate in covert sensitization.

Dr. Jesus Padilla, a href="http://www.sandiegohealthdirectory.com/">clinical psychologist and
co-chair of the “SVP design team,” conducted a study to assess the
effectiveness of the SVP treatment program.
The study compared those released with treatment and those who had been
released without treatment. There were
93 individuals who had not received treatment.
In this group, there was a 6 percent recidivism rate for sex crimes, and
of that 6 percent, there was a 4 percent recidivism rate for sexually
violent crimes. There were seven
individuals who completed Phase IV in the hospital and Phase V in the
community. None of these individuals
reoffended.



II. Discussion

A. Evidence of Prior SVP Commitments

Appellant
contends that the trial court erred in allowing evidence of his prior SVP
commitments to become the focus of the trial, thereby shifting the burden of
proof to him to prove he was no longer an SVP.
Relying on People v. Munoz
(2005) 129 Cal.App.4th 421 (Munoz), appellant argues that the jury “was repeatedly asked to
compare [his] present mental status with earlier findings that he was an SVP,”
and “the complete focus of this case was proving that [he] had not
changed.” Appellant also argues that he
was deprived of his federal constitutional right
to due process.

In >Munoz, the appellant filed a pretrial
motion to exclude evidence of his two prior SVP commitments, arguing that “a
danger existed the jury would not address the core elements of his SVP status,
e.g., whether he suffered from a mental disorder, and would simply consider
whether there had been any change in his mental status and level of
dangerousness since his last commitment.”
(Munoz, supra, 129 Cal.App.4th at p. 426.)
The trial court admitted the evidence, “but only for the purpose of
showing such history.” (>Ibid.)


During the examination of the
expert witness in Munoz, the
prosecutor noted that the appellant was committed to the state hospital in 1998
and 2000. The expert witness agreed that
her assignment was “ ‘to evaluate
essentially [appellant’s] progress and to determine whether or not he continues
to meet that criteria under the SVP law.’ ” (Munoz,
supra, 129 Cal.App.4th at p.
427.) The appellant testified that he
did not suffer from a mental disorder and that his prior sex offenses were the
result of substance abuse. (>Ibid.)
On cross-examination, the prosecutor asked the appellant whether he held
that belief in 1992 and why he did not contest the experts’ findings in
1998. (Ibid.) When the appellant
stated that he did not remember the case, he was shown the minute order in
which he waived his right to trial and submitted the matter. The minute order, which was admitted into
evidence, reflected that the trial court committed the appellant as an
SVP. (Munoz, at pp. 427-428.) The
prosecutor also questioned the appellant about the 2000 recommitment
proceeding. (Munoz, at p. 428.)

During opening argument, the
prosecutor in Munoz argued that the
appellant was an SVP and that “there had been no change in him during his two
years at the state hospital.” (>Munoz, supra, 129 Cal.App.4th at p. 428.)
In closing argument, the prosecutor told the jury that it had previously
petitioned for the appellant to be committed as an SVP and that the appellant
did not contest the claim in 1998. (>Ibid.)

>Munoz reasoned that “[i]t is tempting in the SVP recommitment context to
characterize the issue as whether anything has changed since the last
determination such that the defendant is no longer an SVP. This, however, is a potentially prejudicial
mischaracterization. [The prosecutor] is
required in a recommitment proceeding to prove beyond a reasonable doubt that
the defendant is an SVP, not that he is still an SVP. The danger in this mischaracterization is
that it may suggest to a jury that the defendant must prove he is no longer an
SVP; in any case it certainly lessens [the prosecutor’s] burden by improperly
establishing a datum of mental disorder and dangerousness. As we have concluded, each recommitment
requires [the prosecutor] independently to prove that the defendant has a
currently diagnosed mental disorder making him or her a danger. The task is not simply to judge changes in
the defendant's mental state. [¶] . . .
[¶] While it is proper, when relevant,
to take judicial notice of the prior finding, it is improper to take notice of
the truth of that finding. [Citations.]
Thus, if there is some legal
consequence to the fact of a prior SVP finding, a trier of fact may take
judicial notice of it. However, the
factual truth of any prior determination that the defendant then had a mental
disorder and was as a result dangerous are not the proper subject of judicial
notice. [¶] The prior finding has no res judicata effect
with regard to the issues of the defendant’s mental condition or dangerousness
since, as noted above, it dealt with a different issue, i.e., whether the
defendant then had a currently
diagnosed mental disorder rendering him dangerous. [Citations.]”
(Munoz, supra, 129 Cal.App.4th at pp. 430- 431.) Based on the “manner in which the prosecutor
questioned witnesses, the evidence the trial court admitted, and the manner in
which [the prosecutor] argued the case suggested that the issue was whether
anything had changed since appellant’s prior SVP commitment,” the court
reversed the order. (>Munoz, at p. 432.)

In
claiming that Munoz compels reversal
in the present case, appellant focuses on the prosecutor’s arguments, Dr. Rueschenberg’s
testimony, and the prosecutor’s questioning of him.

At the end
of opening argument, the prosecutor stated:
“And what is known in this case is that Mr. Purcell has been committing
sex crimes since he was 14 years old. . . . You’ll also hear
that he committed those type of acts -- as the judge said, you’re going to hear
atrocious acts that he’s committed. The
only time he didn’t is when he got locked up.
He got locked up, he didn’t commit any more acts, was released,
committed those acts again, got locked up, was released, committed those acts
again, and was locked up.” The
prosecutor continued: “The other thing
that Dr. Rueschenberg is going to explain for you is something you’re probably
feeling as a general premise, as something intuitive, which is the best
indicator for future action is past action.
And something we know in this case is that Mr. Purcell has repeatedly
committed these types of crimes, then been repeatedly locked up, and repeatedly
reoffended when he was released. We know
that. No dispute with respect to
that.” After summarizing the various
crimes that appellant committed between 1965 and 1989, the prosecutor stated: “And what we have is a man who has committed
all those different acts after repeated convictions and releases. . . . The best predictor of future action is past
action. And that’s what we have in front
of us. No dispute there. As I said, given all you can consider and you
will consider and that you will hear from Dr. Rueschenberg, her opinion is that
[appellant] is in fact likely to reoffend without continued treatment and
supervision.”

Appellant
also points out that Dr. Rueschenberg referred to his past behavior. She testified that “the staff at Atascadero
had noted that he tends to get very religious when he’s in prison, and that
when he’s out in the community seems not to be able to adhere to those
things.” She also testified that
appellant “wasn’t out of prison very long before he committed offenses again.” She testified that his primary diagnosis at
Coalinga State Hospital was paraphilia, not otherwise specified, pedophilia,
exhibitionism, and alcohol abuse. She
further testified: “So when he was in
prison in the ‘70s, he didn’t expose himself.
He didn’t molest children. He
didn’t rape women. And he got out and
did so. When he was in prison in the
‘80s, he didn’t do any of those things, and when he got out, he did so. Now he’s back in prison, was in prison in the
‘90s, and he hasn’t been able to get out.”

In
questioning appellant, the prosecutor asked:
“[W]hen you were first locked up back in the ‘60s, a very young man, and
you were incarcerated, and you were about to be released, did you believe then
that you wouldn’t recommit [sexual offenses]?”
The prosecutor next asked: “And
after you were arrested again, after you did those crimes to those young girls,
and you were incarcerated, and you received some treatment . . . did you at the
time of your release in that instance believe that you were good to go . . . ?” The prosecutor clarified that he was
referring to appellant’s release in 1968.
The prosecutor then asked: “And
after your convictions in 1976, when you were ultimately released -- [¶] . . . [¶] in 1982, did you believe that
you were not going to reoffend?”
Appellant replied that he believed that, but he was wrong. The prosecutor asked: “What’s the difference between then and
now?” The prosecutor also asked whether
appellant believed that he would reoffend when he was released in 1989. Appellant responded that he “felt [he] would
give it a good shot.” The prosecutor
then asked: “What was the difference
between 1982 and 1989?” The prosecutor
next asked whether appellant had expressed his reservations about his ability
to not reoffend to anyone in 1989.
Later, the prosecutor asked: “Can
you point to anything tangible that should make anyone believe that you’re
likely to act differently than you have acted every other time you have had the
opportunity to be out in society?”

In his closing
argument, the prosecutor argued: “What I
think it comes down to in this case is that Mr. Purcell is saying, ‘Trust
me. I’m better now. And my doctors trust me. So you should believe what they say and you
should find that I’m not a sexually violent predator.’ But I think all of you would agree with me
there’s no reason whatsoever to trust Lance Purcell.” He also argued: “But the fact is that the best indicator that
we have, especially with respect to Lance Purcell, is the fact that he has
reoffended over and over and over and over and over. He committed these awful crimes. [¶]
Early on he didn’t really seek treatment, he was found unamenable to
treatment, but later on he said, yeah, when he was ready to get out, he thought
that this was it. He got locked up
again, after not thinking he was going to reoffend. He was in prison for a very long time. Got out again thinking he was okay, he was
going to meet up with his ex-wife and start to get in re-touch with his family,
but when that fell through, he did it again.
I can’t stress that enough. We
have got a long track history.” The
prosecutor later argued that appellant “just wants the opportunity to show that
he’s a cured man. All those awful things
that you saw, the man who did those awful things, that’s not him anymore.” The prosecutor’s final statement was: “He hasn’t changed. The only thing that’s changed is he’s been
locked up longer than the last couple times.
That’s all. He hasn’t had the
chance to reoffend. Don’t give him that
opportunity.”

In
contrast to Munoz, here, the
prosecutor’s focus was not whether appellant had changed between his prior SVP
commitments and the trial. None of the
questions or comments by the prosecutor or Dr. Rueschenberg’s testimony
referred to the prior SVP commitment findings.
Instead, the prosecutor and Dr. Rueschenberg referred to appellant’s
past criminal offenses and behavior.
Through argument and the introduction of evidence of appellant’s actions
and beliefs when he committed the sexual offenses and his current actions and
beliefs, the prosecutor sought to focus the jury’s attention on an assessment
of appellant’s credibility as well as a determination as to whether he was
currently an SVP. None of these
arguments or the evidence suggested that the jury’s task was “to compare [appellant’s]
present mental status with an earlier finding that he or she is an SVP.” (Munoz,
supra, 129 Cal.App.4th at p. 432.)

Appellant
also refers to the prosecutor’s questions regarding why he admitted the
original SVP petition and a portion of the prosecutor’s closing argument that
referred to the findings by prior juries that he was an SVP.

When
appellant testified, the prosecutor asked:
“Now, in January of 2002, when you first came up for commitment, if you
will, under the SVP law, you at that time waived and admitted the initial
petition; is that correct?” After
appellant explained why he admitted the original petition, the prosecutor
impeached him with testimony from his subsequent recommitment trial regarding
his reasons for admitting the first petition.
Unlike in Munoz, this
questioning was not designed to suggest that appellant’s previous admissions to
being an SVP tended to prove that he was still an SVP. Instead, the prosecutor was eliciting
evidence relevant to an assessment of appellant’s credibility since his defense
was that he had stopped having sexual fantasies, and thus was not likely to
reoffend.

During
closing argument, the prosecutor referred to various studies produced by the
defense that indicated extremely low rates of reoffense by individuals over age
60. He stated: “But my point was those numbers they threw
out are irrelevant. None of those cases
talks about a sexually violent predator who was found to be a sexually violent
predator. Why? Because if you find he’s a sexually violent
predator, he’s not getting out. The
people in those studies, all of them, were released because they were found not
be to sexually violent predators. [¶] Two other juries have found him to be
a sexually violent predator. At least
four other doctors, five other doctors, including this case, have found him to
be a sexually violent predator. That’s
what he is.” Taken in context, the
prosecutor’s reference to the prior juries’ and doctors’ SVP findings did not
suggest to the jury that appellant was required to “prove that he is no longer
an SVP.” (Munoz, supra, 129
Cal.App.4th at p. 430.) Rather, the
prosecutor was emphasizing that the studies were irrelevant because the
participants in those studies were not SVP’s while appellant had been found to
be an SVP.

In
sum, we disagree with appellant’s claim that the prosecutor “based his entire
case on the fact that appellant had been committed before, released before, and
reoffended.” Here, appellant’s extensive
history of sexual offenses was relevant to a determination of his current
mental disorder. However, the admission
of this evidence did not render the trial fundamentally unfair. Nor did it effectively shift the burden of
proof to him to prove that he was no longer an SVP.



B. Motion to Dismiss

Appellant
next contends that the trial court erred in denying his motion to dismiss the
petition to recommit him as an SVP on the ground that his evaluation by mental
health professionals was conducted pursuant to an invalid protocol or “underground
regulation.”

Section
6601, subdivision (c) requires that the Department develop and update a
“standardized assessment protocol” (protocol) by which to evaluate individuals
who may be SVP’s. The protocol must
“require assessment of diagnosable mental disorders, as well as various factors
known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of sexual
deviance, and severity of mental disorder.”
Only after two professional mental health evaluators agree that an
individual meets the criteria for being an SVP based on the protocol does the
Department file a petition for involuntary commitment under the SVPA. (§ 6601, subds. (c)-(f), (h).)

“The
purpose of this evaluation is not to identify SVP’s but, rather, to screen out
those who are not SVP’s. ‘The
Legislature has imposed procedural safeguards to prevent meritless petitions
from reaching trial. “[T]he requirement
for evaluations is not one affecting disposition of the merits; rather, it is a
collateral procedural condition plainly designed to ensure that SVP proceedings
are initiated only when there is a substantial factual basis for doing so.” ’
(People v. Scott (2002) 100 Cal.App.4th
1060, 1063.) The legal determination
that a particular person is an SVP is made during the subsequent judicial
proceedings, rather than during the screening process. (Ibid.)” (People
v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).)

The Department
published the Clinical Evaluator Handbook and Standardized Assessment Protocol
(2007) for the purpose of conducting the SVP evaluations prescribed under
section 6601. In August 2008, the Office
of Administrative Law (OAL) concluded that certain provisions of this handbook
met the definition of a regulation and that these provisions should have been
adopted pursuant to the Administrative Procedures Act (APA) (Gov. Code, § 11340
et seq.). (2008 OAL Determination No.
19, p. 13.) A regulation that is adopted
in violation of the APA is invalid and is called an “ ‘[u]nderground regulation.’ ” (Cal. Code Regs.,
tit. 1, § 250.) While an OAL
determination is not binding on this court, it is entitled to deference. (Grier
v. Kizer (1990) 219 Cal.App.3d 422, 431, disapproved on another ground in >Tidewater Marine Western, Inc. v. Bradshaw
(1996) 14 Cal.4th 557, 577 (Tidewater).)

Appellant
claims that the Department’s failure to evaluate him pursuant to a valid
protocol deprived the trial court of fundamental
jurisdiction.

In In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), the petitioner brought a petition for writ of habeas
corpus, arguing that the assessment protocol used to evaluate him as an SVP was
invalid as an underground regulation. (>Ronje, at p. 513.) In determining whether the protocol was
subject to the APA, Ronje relied on
the test articulated in Tidewater, >supra, 14 Cal.4th 557. Tidewater
stated: “ ‘A regulation subject to the APA thus has two principal
identifying characteristics.
[Citation.] First, the agency
must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply
universally; a rule applies generally so long as it declares how a certain class
of cases will be decided.
[Citation.] Second, the rule must
“implement, interpret, or make specific the law enforced or administered by
[the agency], or . . . govern [the agency’s] procedure.” [Citation.]’
” (Ronje, at p. 516.) >Ronje concluded that the protocol met
both prongs of the Tidewater
test. (Ronje, at p. 516.)

The People argue, however, that the
challenged portions of the protocol do not meet the second portion of the first
Tidewater prong. They assert that the “protocol left up to the
evaluators’ independent professional judgment whether or not an individual
meets the SVP criteria. The protocol did
not declare how all SVP evaluations, or ‘class of cases’ should be decided. Instead, it provided a guide for the
independent evaluators to use in making their decisions.” We need not address this argument because we
agree with the People’s position that, even assuming the protocol was invalid,
the trial court was not deprived of fundamental jurisdiction and appellant has
failed to demonstrate prejudice.

In >Ronje, the reviewing court held that the
use of an invalid assessment protocol did not deprive the trial court of
fundamental jurisdiction. (>Ronje, supra, 179 Cal.App.4th at p. 517.)
Appellant argues that Ronje
was wrongly decided. We disagree.

>Ronje reasoned: “The term ‘jurisdictional in the fundamental
sense’ means the ‘legal power to hear and determine a cause.’ ([People
v.] Pompa-Ortiz [(1980)] 27
Cal.3d [519,] 529.) ‘Lack of
jurisdiction in its most fundamental or strict sense means an entire absence of
power to hear or determine the case, an absence of authority over the subject
matter or the parties.’ (>Abelleira v. District Court of Appeal
(1941) 17 Cal.2d 280, 288 [Abelleira].)” (Ronje,
supra, 179 Cal.App.4th at p.
518.) Lack of jurisdiction may also be
applied more broadly to cases in which, “though the court has jurisdiction over
the subject matter and the parties in the fundamental sense, it has no
‘jurisdiction’ (or power) to act except in a particular manner, or to give
certain kinds of relief, or to act without the occurrence of certain procedural
prerequisites.” (Abelleira, at p. 288.)
“Issues relating to jurisdiction in its fundamental sense indeed may be
raised at any time. [Citations.] By contrast, issues relating to jurisdiction
in its less fundamental sense may be subject to bars including waiver . . . and
forfeiture . . . .” (>People v. Mower (2002) 28 Cal.4th 457,
474, fn. 6.)

Medina,
supra, 171 Cal.App.4th 805 is
instructive. In that case, the defendant
argued that the Department had failed to evaluate him pursuant to a valid
protocol, and thus the trial court lacked jurisdiction to proceed. (Medina,
at p. 811.) The Medina court reasoned: “As
to personal jurisdiction, there is no evidence to suggest, and Medina does not
contend, that he lacked minimum contacts with the State of California
[citations] or that he was not served with the documents necessary to initiate
proceedings. [Citations.] As to subject matter jurisdiction, the
superior court was undoubtedly the appropriate court to hear the commitment
petition (Welf. & Inst. Code, §§ 6602, 6604), and there is no claim of
untimeliness. (See Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1171.)” (Medina,
at p. 816.) Thus, the court concluded that
the issue was whether “the court acted in excess of its jurisdiction, rather
than without fundamental jurisdiction.”
(Ibid.) The court then held that the defendant
forfeited his challenge to the procedures that occurred before the petition was
filed because he admitted the allegations in the petition. (Medina,
at p. 817.)

In an
analogous case, the court in In re Wright
(2005) 128 Cal.App.4th 663 (Wright)
reached the same conclusion regarding the trial court’s jurisdiction. In Wright,
the two initial evaluators did not agree on whether the defendant should be
committed as an SVP. (>Wright, at p. 667.) Pursuant to section 6601, subdivision (e),
two “independent professionals” were then appointed, and the defendant was
found to be an SVP following trial. (>Wright, at pp. 667-669.) The defendant appealed, and the reviewing
court rejected his sufficiency of the evidence challenge. (Wright,
at p. 669.) The defendant then brought a
petition for writ of habeas corpus. (>Ibid.)

In Wright, the court assumed that one of the mental health
professionals did not meet the criteria of section 6601, subdivision (g), which
required that he have a doctoral degree in psychology. (Wright,
supra, 128 Cal.App.4th at p.
672.) The court next discussed the
effect of the error. (>Wright, at pp. 672-675.) Noting that the SVPA does not require that
the evaluations be alleged or appended to the petition, and the People are not
required to prove their existence at either the probable cause hearing or at
trial, the court stated the issue before it:
“whether [the defendant] was deprived of due
process . . . where one of two evaluations supporting a
petition was defective, but a trial court found probable cause to proceed to
trial on the petition and the individual was committed after receiving a trial
on the merits.” (Wright, at pp. 672-673.)

Wright
concluded that the trial court was not without fundamental jurisdiction. “Illegalities in pretrial commitment
proceedings that are not ‘jurisdictional in the fundamental sense,’ are not
reversible error per se on an appeal from the subsequent trial. Rather, the ‘defendant [must] show that he
was deprived of a fair trial or otherwise suffered prejudice as a result of the
error at the preliminary examination.’ (>People v. Pompa-Ortiz (1980) 27 Cal.3d
519, 529.) . . . [¶] Irregularities in the preliminary hearing
under the Act are not jurisdictional in the fundamental sense and are similarly
subject to harmless error review. (>People v. Talhelm [2000] 85 Cal.App.4th
[400], 405.) Thus, reversal is not
necessary unless the individual can show that he or she was denied a fair trial
or had otherwise suffered prejudice. (>Ibid.)”
(Wright, supra, 128 Cal.App.4th at p. 673.)

For the
reasons outlined in Ronje, >Medina and Wright, any error in the present case was not jurisdictional in the
fundamental sense.

We turn now to the issue of
prejudice. As the Medina court noted, the purpose of the evaluations is “to screen
out those who are not SVP’s . . . [and] [t]he legal determination that a
particular person is an SVP is made during the subsequent judicial
proceedings.” (Medina, supra, 171
Cal.App.4th at p. 814.) These
proceedings include a probable cause hearing (§ 6602) and a trial (§§ 6603,
6604). At the probable cause hearing the
People are required to show “the more essential fact that the alleged SVP is a
person likely to engage in sexually violent predatory criminal behavior. [Citation.]”
(People v. Superior Court
(Preciado) (2001) 87 Cal.App.4th 1122, 1130.) After that determination is made, the matter
proceeds to trial where the prosecution has the burden of proving beyond a
reasonable doubt that the individual meets the criteria of the SVPA. (§§ 6603, 6604.)

In the present case, the trial
court found that there was probable cause to believe that appellant met the
criteria of the SVPA. Following trial, a
jury found him to be an SVP. Appellant
has not challenged the sufficiency of the evidence at either the probable cause
hearing or trial. Instead, he argues
that “[b]ecause the procedure itself was a flawed instrument, there is no way
of knowing that the evaluations that were ultimately the basis of [his] case
were valid.” However, it is appellant’s
burden to show prejudice. (>Medina, supra, 171 Cal.App.4th at p. 819.)
He has not shown that dismissal of the petition on the ground that the
protocol did not comply with the APA would have resulted in an abandonment of
the commitment proceedings. Nor has he
shown that if he had been evaluated under a valid protocol, there was a reasonable
probability that he would have been found not to be an SVP. Accordingly, appellant’s challenge to the
evaluations supporting the petition does not justify reversal of his
commitment.



C. Constitutional Challenges

1. Statutory
Background

When
the SVPA was enacted, it provided for a two-year civil commitment for
individuals who were found to be SVP’s beyond a reasonable doubt after a
trial. (People v. Williams (2003) 31 Cal.4th 757, 764.) The two-year commitment could then be
extended after a trial in which the prosecutor carried the same burden of
proof. (Former §§ 6604, 6604.1, 6605,
subds. (d), (e).)

On November 7, 2006,
the voters enacted Proposition 83. This initiative went into effect the
following day, and it amended the SVPA to extend the commitment term from two
years to indeterminate. (Ballot Pamp.,
Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 27, p. 137.)

Under the
amended SVPA, when a court or jury determines beyond a reasonable doubt that a
person is an SVP, “the person shall
be committed for an indeterminate term to the custody of the State Department
of State Hospitals for appropriate treatment and confinement . . . .” (§ 6604.)
The committed person then “shall have a current examination of his or
her mental condition made at least once every year. The annual report shall include consideration
of whether the committed person currently meets the definition of a sexually
violent predator and whether conditional release to a less restrictive
alternative or an unconditional release is in the best interest of the person
and conditions can be imposed that would adequately protect the
community.” (§ 6605,
subd. (a).) The Department must
file this report with the court and serve it on both parties. (Ibid.) The committed person may retain an expert to
examine him or her or have one appointed by the court if the person is
indigent. (Ibid.) This expert shall have access to the
committed person’s records. (Ibid.)

name=B00552020376943> name="citeas((Cite_as:_2009_WL_3777413,_*5_(Ca">When the Department
determines that the committed person is no longer an SVP, it authorizes him or
her to file a petition for conditional release or unconditional discharge. (§ 6605, subd. (b).) After the court receives a petition for
conditional release or unconditional discharge, it must order a show cause
hearing. (Ibid.) “If the court at the show cause hearing
determines that probable cause exists to believe that the committed person’s
diagnosed mental disorder has so changed that he or she is not a danger to the
health and safety of others and is not likely to engage in sexually violent
criminal behavior if discharged, then the court shall set a hearing on the
issue.” (§ 6605, subd. (c).) Each party has the right to experts and a
jury at this hearing, and the committed person is “entitled to the benefit of
all constitutional protections that were afforded to him or her at the initial
commitment proceeding.” (§ 6605, subd.
(d).) The state bears the burden of
proving beyond a reasonable doubt “that the committed person’s diagnosed mental
disorder remains such that he or she is a danger to the health and safety of
others and is likely to engage in sexually violent href="http://www.fearnotlaw.com/">criminal behavior if
discharged.” (Ibid.)

Even
if the Department does not authorize a petition, a committed person may
petition for conditional release or unconditional discharge under section
6608. In bringing this petition, the
committed person is entitled to the assistance of counsel. (§ 6608, subd. (a).) The court may summarily deny this petition if
it determines that the petition is frivolous.
(Ibid.) When the court
holds a hearing on the petition, the committed person has the burden of proof
to show that he or she is no longer an SVP based on a preponderance of
evidence. (§ 6608, subd. (i).) If the trial court finds that the committed
person would not be “a danger to others due to his or her diagnosed medical
disorder while under supervision and treatment in the community, the court
shall order the committed person placed with an appropriate forensic conditional
release program . . . for one year.” (§ 6608, subd. (d).) After one year, the trial court shall hold a
second hearing to determine if the committed person should be unconditionally
released. (Ibid.) If the trial court denies the petition, the
committed person must wait one year to file another petition. (§ 6608, subd. (h).) After a section 6608 petition has been
denied, either as frivolous or after a hearing, the trial court shall deny any
subsequent petitions under section 6608 “unless it contains facts upon which a
court could find that the condition of the committed person had so changed that
a hearing was warranted.” (§ 6608,
subd. (a).)

2. Due Process, Ex Post Facto,
and Double Jeopardy

In his
opening brief, appellant argues that his indeterminate commitment under the
SVPA, as amended in 2006, violated the due process, equal protection, ex post
facto, and double jeopardy clauses of the state and federal Constitutions. In his reply brief, appellant concedes that
the California Supreme Court rejected similar due process and ex post facto
claims. (McKee I, supra, 47
Cal.4th at pp. 1193, 1195.) We are bound
by this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)href="#_ftn2" name="_ftnref2" title="">[2]

3. Equal Protection

Appellant
contends that the SVPA violates the equal protection clause because it makes it
more difficult for those committed under the SVPA to be released than those
committed under the Mentally Disordered Offender Act (MDOA). In a supplemental letter brief, appellant
urges this court not to follow McKee II.



name="citeas((Cite_as:_2009_WL_3777413,_*8_(Ca">Both the federal and state
Constitutions guarantee the right to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art.
I, § 7.) “ ‘ “The concept of the equal protection of the laws compels
recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.” ’ [Citation.] ‘The first prerequisite to a meritorious
claim under the equal protection clause is a showing that the state has adopted
a classification that affects two or more similarly situated groups in
an unequal manner.’ ” (Cooley
v. Superior Court (2002) 29 Cal.4th 228, 253.) McKee I
concluded that SVP’s are similarly situated to persons committed as mentally
disordered offenders (MDO’s) (Pen. Code, § 2960 et seq.) and individuals
found not guilty by reason of insanity (NGI’s) (Pen. Code, § 1026 et
seq.). (McKee I, >supra, 47 Cal.4th at pp. 1203,
1207.) McKee I also held that the claim of disparate treatment would be reviewed
under the strict scrutiny standard. (>McKee I, at pp. 1197-1198.) However, McKee
I concluded that “[b]ecause neither the People nor the court below properly
understood this burden, the People will have an opportunity to make the
appropriate showing on remand. It must
be shown that, notwithstanding the similarities between SVP’s and MDO’s, the
former as a class bear a substantially greater risk to society, and that
therefore imposing on them a greater burden before they can be released from
commitment is needed to protect society.”
(McKee I, at pp.
1207-1208.) McKee I suggested ways in which the People might carry this burden,
including presentation of evidence that due to the “inherent nature of the
SVP’s mental disorder” there is a greater risk of recidivism by SVP’s or that
the “SVP’s pose a greater risk to a particularly vulnerable class of
victims.” (McKee I, at p. 1208.) Thus, >McKee I directed the People on remand
“to justify Proposition 83’s indefinite commitment provisions . . . and demonstrate
that they are based on a reasonable perception of the unique dangers that SVP’s
pose rather than a special stigma that SVP’s may bear in the eyes of the
California’s electorate.” (>McKee I, at p. 1210.)

On remand,
the trial court held a 21-day evidentiary hearing. (McKee
II, supra, 207 Cal.App.4th at p.
1330.) Experts testified that SVP’s pose
a higher risk of recidivism, that victims of sexual offenses suffer greater
trauma than victims of nonsex offenses, and that SVP’s pose significant diagnostic
and treatment differences from MDO’s and NGI’s.
(McKee II, at pp.
1340-1347.) Based on this evidence, the
trial court rejected McKee’s equal protection claim. (McKee
II, at p. 1330.)

Applying
the de novo standard of review, the Court of Appeal reviewed the evidence and
reached the following conclusion: “[T]he
People on remand met their burden to present substantial evidence, including
medical and scientific evidence, justifying the amended Act’s disparate treatment
of SVP’s (e.g., by imposing indeterminate terms of civil commitment and placing
on them the burden to prove they should be released). (McKee
[I], supra, 47 Cal. 4th at p.
1207.) The People have shown that,
‘notwithstanding the similarities between SVP’s and MDO’s [and NGI’s], the
former as a class bear a substantially greater risk to society, and that
therefore imposing on them a greater burden before they can be released from
commitment is needed to protect society.’
(Id. at p. 1208.) The People have shown ‘that 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 by the electorate that passed Proposition 83
that the disparate treatment of SVP’s under the amended Act is necessary to
further the state’s compelling interests in public safety and humanely treating
the mentally disordered.
[Citation.]” (>McKee II, supra, 207 Cal.App.4th at p. 1347.)

Appellant
contends that McKee II did not
properly conduct de novo review. He
asserts that the Court of Appeal was “required to independently look at the
evidence presented by both parties and determine if the findings made by the
trial court were correct,” but it did not do this. He notes that though both parties presented
documentary evidence, McKee II
discussed only the prosecution’s evidence without discussing its credibility or
reliability. No such requirement is
imposed on an appellate court. >McKee I remanded the matter to allow the
People to meet their burden that the SVPA’s disparate treatment of SVP’s
furthered a compelling state interest. (>McKee I, supra, 47 Cal.4th at pp. 1197-1198.) After independently reviewing the evidence, >McKee II concluded “the disparate
treatment of SVP’s under the Act is reasonable and factually based and was
adequately justified by the People at the evidentiary hearing on remand.” (McKee
II, supra, 207 Cal.App.4th at pp.
1339-1348.) There was no error. We also note that the First District Court of
Appeal rejected a similar challenge to McKee
II, stating that the appellant’s “claim that the appellate court failed to
independently review the trial court’s determination is frivolous.” (People
v. McKnight (2012) 212 Cal.App.4th 860, 864.)

Appellant
next contends that McKee II
misapplied the strict scrutiny test. He
argues that “[i]t was not enough to simply show that the legislature or voters
could reasonably believe that SVPs were more dangerous as a class. The prosecution had to show that SVPs
actually were more dangerous as a class.
The prosecution also had to show that the disparate treatment between
SVPs, MDOs and NGIs was necessary to protect society.” However, in remanding the case to the trial
court, McKee I stated: “But the government has not yet shown that
the special treatment of SVP’s is validly based on the degree of danger >reasonably perceived as to that group,
nor whether it arises from any medical or scientific evidence. On remand, the government will have an
opportunity to justify Proposition 83’s indefinite commitment provisions, . . .
and demonstrate that they are based on a
reasonable perception of the unique dangers that SVP’s pose rather than a
special stigma that SVP’s may bear in the eyes of California’s
electorate.” (McKee I, supra, 47
Cal.4th at p. 1210, italics added.)
Thus, in applying the strict scrutiny test, McKee II followed the language set forth in McKee I.

Appellant
also contends that the evidence presented in McKee II did not support the ruling that SVP’s were more dangerous
than MDO’s and NGI’s, and thus harsher treatment was necessary. He claims that “McKee II acknowledged that the prosecution failed to show that SVPs
had a higher sexual recidivism rate than MDOs or NGIs, but nevertheless
concluded that the evidence ‘supports, by itself, a reasonable inference or
perception that SVP’s pose a higher risk
of sexual reoffending than do MDO’s or NGI’s.’
(McKee II, >supra, at p. 1342, emphasis in
original.)” McKee II relied on evidence that the scores on the Static-99 test,
which assesses the risk that a sex offender will commit sex offenses, was
higher for SVP’s than for non-SVP sex offenders. (McKee
II, supra, 207 Cal.App.4th at pp.
1340-1342.) As previously stated, >McKee II followed McKee I.

Appellant
next contends that McKee II reached
its conclusion that victims of sexual abuse suffer greater trauma without any
evidence regarding the trauma caused by non-sex offenses. We disagree.
McKee II relied on evidence
that “[s]exual trauma differs qualitatively from other traumas because of its
intrusiveness and long-lasting effects,” and that “[d]ysfunction,
disassociation and avoidance problems after sexual trauma are unique to sexual
abuse and are not seen in victims of physical or other types of abuse.” (McKee
II, supra, 207 Cal.App.4th at pp.
1342-1343.)

Noting that
there were three separate elements under attack in McKee’s equal protection
challenge, that is, the indeterminate commitment, the elimination of the right
to a jury trial periodically, and the shifting of the burden of proof,
appellant argues that ‘[t]he evidence in McKee
II addressed only the issue of indeterminate commitments.” This argument has no merit. Following independent review of the evidence,
McKee II concluded that “the
disparate treatment of SVP’s under the Act is reasonable and factually based
and was adequately justified by the People at the href="http://www.fearnotlaw.com/">evidentiary hearing on remand.” (McKee
II, supra, 207 Cal.App.4th at p.
1348.)





III. Disposition

The order
is affirmed.











_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Bamattre-Manoukian, Acting P. J.













______________________________

Márquez, J.