P. v. Ryan
Filed 12/9/13 P. v. Ryan CA6
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opinion has not been certified for publication or ordered published for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.
JAMES RYAN,
Defendant and
Appellant.
H039193
(Santa Clara
County
Super. Ct. No. 211693)
Following a
court trial, the court found true beyond a reasonable doubt that defendant James
Ryan was a sexually violent predator
(SVP) under the Sexually Violent Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et
seq.)
indeterminate term to the custody of the California Department of Mental Health
(now, State Department of State
Hospitals; hereafter the Department). The order specified that it was “subject to
the ultimate decision in People v. McKee (2010)
47 Cal.4th 1172†(McKee I). On November 9, 2012, after the California
Supreme Court denied review in People v. McKee (2012)
207 Cal.App.4th 1325 (McKee II), the trial court filed an order committing defendant
for an indeterminate term “as previously ordered.â€
On appeal, defendant
argues (1) that he was not evaluated with a valid “standardized assessment protocolâ€
as mandated by section 6601, subdivision (c) and thus, that the subsequent
commitment proceedings violated due process, and (2) that the SVPA’s
indeterminate commitment violates principles of
is meritorious, and we will therefore affirm the judgment.
Background
A. Facts Underlying the Sexually Violent
Offenses
title="">[2]
In 1998, defendant
was 23 years old when he met Elana, a 13-year-old girl. Elana told defendant that she was having
family problems because her stepfather had molested her. Defendant told her that he would keep her
safe. The two started dating and began a
sexual relationship.
On one
evening, defendant took Elana to an abandoned house. According to Elana, she agreed to
bondage. Defendant tied her hands with a
soft white rope. He also tied a rope
around her eyes so that she could not see and around her mouth to gag her. Elana was naked. Defendant licked her body, and then penetrated
her anus with his finger. She screamed
and tried to get away from defendant. Elana
reported that she had previously told defendant never to touch her anus. She told him to stop, and he complied.
Elana also
reported that in 1999, she and defendant engaged in auto-erotic asphyxiation. During intercourse, defendant grabbed Elana by
the neck and choked her until she passed out. Approximately 10 minutes after she awoke, he
performed the same act.
Elana
reported these incidents to the police.
The police executed a search warrant of defendant’s home and found
bondage toys, several photographs of young females taken at defendant’s home (including
a photograph of a young naked female who was bound and gagged), photographs of
young girls, likely under the age of 18, taken from pornographic websites,
drawings of women in bondage, and notebooks containing teen pornography sites
and numbers for teen phone sex.
In late
2002 or early 2003, defendant met Samantha, a 15-year-old girl. Samantha met defendant through her friend, Cheryl
school one day and went to his bedroom.
Defendant told her he wanted to have sex with her. Samantha told defendant that she did not want
to have sex, and she started to get up to leave the room. Defendant grabbed Samantha from behind, took
her purse off, and threw her onto his bed.
He then ripped off her clothing and raped her. Defendant apologized to Samantha the next day. Samantha continued to see defendant, who raped
her several more times. She recounted
that defendant used a leather whip and a wooden paddle on her rear end, which
left non-permanent marks on her. Defendant
also refused to wear a condom, claiming he was allergic to latex and that he
hoped he could make Samantha pregnant so that he could “ ‘use their child for a
sex slave.’ †Defendant would also show
Samantha pornography. Additionally, Samantha
recounted an instance where defendant slapped her on the face when she tried to
leave.
Samantha’s
friend, Cheryl, also reported that she was a victim and that defendant had
engaged in sexual activity with her. Cheryl
was 17 years old when she first had intercourse with defendant. At that time, she had problems with her
mother, and defendant offered her a place to stay. On that evening, defendant asked to have anal
sex, but Cheryl refused.
Defendant
would refer to Cheryl as his pet and claimed he had “ownership of girls.†Defendant had a box of pet collars and gave one
to her. Additionally, while having sex,
defendant called Cheryl names, such as “ ‘slut’ †or “ ‘whore.’ †Defendant also told her that when she turned
18, he would tie her up and “make a movie out of it.†However the relationship ended before Cheryl
turned 18.
Cheryl
learned that defendant had other sex partners.
Defendant told her that one girl threatened to go to the police, but he
prevented her by telling her that he would use her image in a bestiality
movie. Defendant would also show Cheryl
pictures of his ex-girlfriend tied up.
He also made Cheryl watch a movie of him and a 15 or 16-year-old girl,
who attended Cheryl’s high school, having sex.
Defendant also asked Cheryl to bring him “ ‘sacrifices,’ â€
which he considered short Asian girls between 13 and 16 years of age. On one occasion, defendant asked her to bring
a 10-year-old.
B. Procedural Background
In November
2003, defendant was convicted of two counts of violating Penal Code section
288, subdivision (a) for the acts committed against Elana, two counts of
violating Penal Code section 261.5, subdivision (d) for the acts committed
against Samantha, and two counts of violating Penal Code section 261.5,
subdivision (c) for the acts committed against Cheryl. Defendant was sentenced to six years in
prison.
On February
18, 2011, the People filed a petition to commit defendant as an SVP under the
SVPA. The petition was supported by four
mental health evaluations
performed by Jeremy Coles, Ph.D., Mary Jane Alumbaugh, Ph.D., Kathleen Longwell,
Ph.D., and Robert M. Owen, Ph.D
name="_ftnref4" title="">[4],
in December 2010 and January 2011.
A probable
cause hearing was held on May 25, 2011 and June 14, 2011. At the hearing, Dr. Longwell testified on
behalf of the People. Drs. Coles and
Alumbaugh testified for the defense.
found probable cause to believe defendant was an SVP.
On June 16,
2011, defendant moved to dismiss the petition on the basis that the evaluators
had not used a “standardized assessment protocol†as mandated by section 6601,
subdivision (c). The trial court denied
the motion to dismiss on June 17, 2011.
On May 30,
2012, defendant waived his right to a
jury trial and agreed to submit to the trial court the determination of whether
he was an SVP. The prosecution submitted
mental health evaluations, including updated evaluations done in November 2011
by Drs. Longwell and Coles, and records pertaining to defendant’s 2003
convictions. Defendant did not present
any evidence at trial.
In their updated evaluations, Drs.
Longwell and Coles both diagnosed defendant with paraphilia (specifically,
sexual sadism or coercive sexuality) and antisocial personality disorder. They noted that their diagnoses remained
unchanged from their prior mental health evaluation reports. They both believed that defendant posed a risk
of committing a future sexually violent predatory offense.
Drs. Longwell and Coles assessed
defendant’s risk of reoffense using different tests and instruments. Dr. Longwell used the Static 99-R, Static
2002-R, the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Sex
Offender Risk Assessment Guide (SORAG), and the Structured Risk Assessment,
Forensic Version (SRA-FV). All five
instruments “have been subject to validation studies that have established
their usefulness in predicting sexual re-offense.†On the Static 99-R, defendant scored in the
group with a moderate to high risk of reoffense. On the Static 2002-R, defendant scored in the
group with a moderate risk of reoffense.
On the MnSOST-R, defendant scored in the group with the highest risk of
reoffense. On the SORAG, defendant
scored in the category “5 of 9†risk level of reoffense. Lastly, on the SRA-FV, defendant scored in
the “very high risk†category. Based on
these scores, Dr. Longwell concluded that defendant is “an essentially
untreated, dangerous and deviant sex offender who is at significant risk to act
out his sexually sadistic impulses on other young girls when he is no longer
under close supervision.†Moreover,
“[f]uture sex offenses are likely to be predatory in nature.â€
Dr. Coles also used the Static 99-R
and the Static 2002-R. Based on these
scores, Dr. Coles concluded that defendant has not made any fundamental
changes. Dr. Coles quoted part of his
previous evaluation, in which he concluded that defendant’s “significant sexual
deviancy is aggravating in terms of his risk for re-offense. . . . [H]e has
clear deviant desires related to bondage and dominance and, unfortunately, he
has demonstrated that his deviant desires can, and sometimes do, involve forced
sexuality.†Additionally, Dr. Coles
noted that defendant had not participated in sex offender treatment and that
his history reveals “a significant preoccupation with sex that involves bondage
and coercion with minor females.â€
Based on the exhibits, the trial
court found the petition true and ordered defendant committed to the custody of
the Department for an indeterminate term.
The order specified that it was “subject to the ultimate decision inâ€
defendant for an indeterminate term “as previously ordered.â€
Discussion
A. Brief Overview of the SVPA
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†(ibid.).
The definition of an SVP is set forth in section 6600, subdivision
(a)(1) as follows: “ ‘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.â€
The SVP
commitment process “begins when the secretary of the Department of Corrections
and Rehabilitation (DCR) determines that a person in custody because of a
determinate prison sentence or parole revocation may be a sexually violent predator.
If such an initial determination is made, the secretary refers the
inmate for an evaluation.†(
“After the secretary’s referral, the inmate is screened by the DCR and
the Board [of Parole Hearings (Board)] to determine whether the person is
case, the inmate is referred for full evaluation by the [Department]. (§ 6601, subd. (b).)†(Ibid.)
“A full
evaluation is done by two practicing
or by one of each profession. (§ 6601,
subd. (d).) If one evaluator concludes
the inmate meets the SVP criteria, but the other evaluator disagrees, two more
independent evaluators are appointed. (§
6601, subd. (e).) A petition for
commitment may not be requested unless the initial two evaluators appointed
under subdivision (d), or the two independent evaluators appointed under
subdivision (e), agree that the inmate meets the commitment criteria. (§ 6601, subds. (d), (f).)†(Lucas,
supra, 53 Cal.4th at p. 845.) “If, after the full evaluation is completed,
the [Department] concludes that the inmate is an SVP, the director of the
[Department] requests that a petition for commitment be filed by the district
attorney or the county counsel of the county where the inmate was convicted. If upon review that official concurs, a
petition for commitment is filed in the superior court. (§ 6601, subds. (h), (i).)†(Id.
at p. 846.)
With regard
to the full evaluation prior to the filing of a petition, former section 6601,
subdivision (c), as amended by section 26 of Proposition 83, provided: “The State Department of Mental Health shall
evaluate the person in accordance with a standardized assessment protocol,
developed and updated by the State Department of Mental Health, to determine whether
the person is a sexually violent predator as defined in this article. The
standardized assessment protocol shall 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.â€
A
commitment petition proceeds to trial only if the requisite findings are made at
a probable cause hearing. (See
§ 6602, subd. (a); Cooley v.
Superior Court (2002) 29 Cal.4th 228.)
“[T]he only purpose of the probable cause hearing is to test the
sufficiency of the evidence supporting the SVPA petition. [Citation.]â€
(Id. at p. 247.) “. . . If the judge determines that
there is probable cause, the judge shall order that the person remain in
custody in a secure facility until a trial is completed
. . . .†(§ 6602,
subd. (a).)
At trial,
the court or jury must “determine whether, beyond a reasonable doubt, the
person is a sexually violent predator.â€
(§ 6604.) If the court or
jury determines that the person is a sexually violent predator, the person is
committed for an indeterminate term. (
B. 2009 Assessment Protocol
Defendant
contends the trial court erred by denying his motion to dismiss the petition,
in which he argued that the evaluators did not use a “standardized assessment
protocol†as mandated by section 6601, subdivision (c).
1. The 2009 Protocol
On February
11, 2009, the Department issued the “Standardized Assessment Protocol for
Sexually Violent Predator Evaluations†(2009 Protocol). The 2009 Protocol had been adopted at the
time of defendant’s probable cause hearing in May and June 2011.
The 2009
Protocol is six pages long. The protocol
states in its introduction: “This
protocol cannot prescribe in detail how the clinician exercises his or her
independent professional judgment in the course of performing SVP
evaluations. Since the exercise of
independent, professional clinical judgment is required, this evaluation
protocol is not, and cannot be, a detailed, precise step-by-step procedure like
the kind of procedure that might apply to the chemical analysis of an unknown
substance.â€
Part I of
the 2009 Protocol contains statutory definitions of the terms “Sexually Violent
Predator,†“Sexually violent offense,†“Diagnosed mental disorder,†and
“Predatory.â€
Part II of
the 2009 Protocol is entitled “Referral Source,†and it describes the
Department’s screening process.
Part III of
the 2009 Protocol is entitled, “Evaluator Prerequisites,†and it contains the
requirements of section 6601, subdivision (d) [specifying that evaluations are
to be performed by two practicing psychiatrists, two practicing psychologists,
or one practicing psychiatrist and one practicing psychologist] and section
6601, subdivision (g) [specifying that if only one evaluator determines the
person meets the SVP definition, a further examination must be conducted by two
independent professionals meeting certain criteria].
Part IV-A
of the 2009 Protocol specifies the information that evaluators must give to the
potential SVP, as required by section 6601, subdivision (f). Part IV-B lists the risk factors that must be
taken into account pursuant to section 6601, subdivision (c) – that is,
criminal history, psychosexual history, type of sexual deviance, degree of
sexual deviance, duration of sexual deviance, and severity of mental
disorder. Part IV-C states the inquiry
that must be answered by each evaluator:
“Does the person being evaluated have a diagnosed mental disorder so
that he or she is likely to engage in acts of sexual violence without
appropriate treatment and custody?â€
Part IV-D
of the 2009 Protocol (codified in section 4005 of the California Code of
Regulations, title 9) provides: “The
evaluator, according to his or her professional judgment, shall apply tests or
instruments along with other static and dynamic risk factors when making the
assessment. Such tests, instruments and
risk factors must have gained professional recognition or acceptance in the
field of diagnosing, evaluating or treating sexual offenders and be appropriate
to the particular patient and applied on a case-by-case basis. The term ‘professional recognition or
acceptance’ as used in this Section means that the test, instrument or risk
factor has undergone peer review by a conference, committee or journal of a
professional organization in the fields of psychology or psychiatry, including,
but not limited to, the American Psychological Association, the American
Psychiatric Association, and the Association for the Treatment of Sexual
Abusers.â€
Part IV-E
of the 2009 Protocol specifies the process for updated evaluations as provided
in section 6603, subdivision (c)(1).
Part IV-F discusses several judicial opinions, including the United
States Supreme Court’s decision in Kansas
v. Crane (2001) 534 U.S. 407 (Crane).
Part V of
the 2009 Protocol explains what happens if the evaluation process results in
agreement that the person is an SVP.
In Part VI,
the 2009 Protocol recommends that evaluators be “knowledgeable and familiar
with literature, studies, and tests or instruments used in the field of
evaluation and diagnosis of sex offenders, as well as the latest developments
in these areas.†It also advises
evaluators to, among other things, “obtain, review, and consider all relevant
information and records that bear upon the case and be prepared to testify and
undergo cross examination regarding these sources of information and how they
contributed to the conclusions reached in the evaluation.â€
2. Proceedings Below
In his
motion to dismiss the petition, defendant argued that the 2009 Protocol was not
a “standardized assessment protocol†as required by section 6601, subdivision
(c) because it “expressly eschews any specific procedures to be followed or any
designated risk assessments or tests to be used.†He asserted the 2009 Protocol failed to
include any specified and uniform procedures for evaluators to follow when
performing SVP assessments. Rather, the
2009 Protocol “leave[s] to the discretion of each evaluator which tests and
instruments to use, and which static and dynamic risk factors to
consider.†Defendant also argued that
the 2009 Protocol was invalid and that its use violated his “statutory and
constitutional rights . . . , including his right to due process of law.†He argued that the appropriate remedy was
dismissal of the petition.
Defendant’s
motion to dismiss was supported by declarations from Richard Wollert, Ph.D. and
Robert L. Halon, Ph.D. Dr. Wollert
opined that the 2009 Protocol is “not a ‘standardized assessment protocol,’ as
that term is understood in the scientific and psychological community†and it
“cannot be relied upon to achieve the fundamental goal of a valid, standardized
assessment protocol, i.e., to be a reliable, and relevant method for answering
a given referral question that enables different evaluators to reach identical
conclusions about a given person and report these conclusions in a similar
format.†Dr. Halon expressed a similar
opinion, stating that “adhering to the instructions contained [in the 2009
Protocol] cannot produce a reliable assessment, i.e., one which, using the same
database, methods and procedures, always achieves objective results, whatever they might be, with each individual
being assessed.â€
The
prosecution submitted opposition to the motion to dismiss. The prosecution noted that the term
“standardized assessment protocol†(§ 6601, subd. (c)) is not defined in the
statute. In interpreting the plain
meaning of “standardized assessment protocol,†the prosecution argued that the
Legislature “wanted evaluations and assessments to follow the same general
outline†but did not intend each evaluator to follow “an identical
routine.†The prosecution further argued
that “[b]ecause determination of SVP and mental disposition is a social science
and not a hard science, the protocol must allow for professional judgment and
discretion in evaluating mental health . . . on a case-by-case basis†and that
a more detailed protocol would “likely create difficulties by improperly
restricting the critical role professional judgment plays in any psychological
forensic evaluation.†Additionally, the
prosecution argued that even if the 2009 Protocol was invalid, the proper
remedy would not have been dismissal of the petition. Instead, the proper remedy would be to order
new evaluations under a valid protocol.
In support
of its opposition, the prosecution attached the transcript of a May 11, 2009
regulatory hearing held by the Department.
The topic of the hearing was the proposed adoption of section 4005 of
the California Code of Regulations, title 9, which is part of the 2009 Protocol
and is quoted above. At the hearing,
several speakers argued that the protocol should not be adopted because it did
not give specific guidance to the evaluators and would not ensure a uniform
evaluation system. In its opposition to defendant’s
motion, the prosecution argued that the hearing transcript showed that defendant’s
arguments had been considered but rejected.
The
prosecution’s opposition was further supported by a declaration from Amy
Phenix, Ph.D. Dr. Phenix had been
“tasked with developing the first Standardized Assessment Protocol,†and she
had provided the Department with updates to the protocol. She opined that the 2009 Protocol “comports
with the generally accepted definition of a ‘standardized assessment
protocol.’ †Her declaration
described the training that SVP evaluators must go through, and she cited
various papers and guidelines for the principle that SVP evaluators should use
their professional judgment in selecting the tests or instruments for assessing
a particular individual’s risk of reoffense.
On June 17,
2011, the trial court denied defendant’s motion to dismiss.
3. Analysis
As he did
below, defendant argues that the 2009 Protocol is not a “standardized
assessment protocol†as required by section 6601, subdivision (c). Furthermore, he contends that use of the
invalid protocol was a violation of due
process.
Defendant
contends that the 2009 Protocol is not a “standardized protocol†as required by
section 6601, subdivision (c) because it “does not contain any detailed or
uniform procedures for evaluators to follow when performing SVP evaluations.†According to defendant, a “ ‘standardized’
protocol would describe the same objective, scientific, empirically based
methodology, so that all evaluators could operate under the same guidelines,
using well-defined objectives and criteria.â€
The
Attorney General notes that the phrase “standardized assessment protocol†is
not defined in section 6601 and that nothing in that phrase “mandates a
required level of detail.†The Attorney
General argues that the 2009 Protocol requires “basic uniformity†in
evaluations, by informing evaluators of the legal requirements for SVP
evaluations, requiring them to use risk assessment instruments, tests, or
unenumerated risk factors that are accepted in the field, recommending that
evaluators be knowledgeable and familiar with developments in the field, and
recommending that evaluators obtain, review, and consider all relevant
information. The Attorney General
contends deference is due to the Department’s determination that the need for
evaluators to exercise independent professional judgment necessarily means that
a detailed, step-by-step procedure cannot be prescribed.
We agree
with the trial court that defendant has not established that the 2009 Protocol
is invalid. Defendant has not cited, nor
have we found, any legislative history supporting his assertion that the
Legislature intended the phrase “standardized assessment protocol†to convey a
specific degree of standardization. (§
6601, subd. (c).) By specifying that the
“standardized assessment protocol†be “developed and updated by the State
Department of [State Hospitals]†(ibid.),
the Legislature indicated that it was leaving the determination of detail and
standardization to the Department. As
the United States Supreme Court has recognized, “the Constitution’s safeguards
of human liberty in the area of mental illness and the law are not always best
enforced through precise bright-line rules,†and “the science of psychiatry, which
informs but does not control ultimate legal determinations, is an
ever-advancing science . . . .†(Crane,
supra, 534 U.S. at p. 413.)
And, as the California Supreme Court
has recognized, the statutory scheme is designed to allow the evaluators to exercise their “professional
judgment . . . within a specified legal framework.†(People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888, 910.) In line
with that intent, the 2009 Protocol ensures that the evaluators have a “legally
accurate understanding of the statutory criteria,†which “is crucial to the [SVPA’s]
proper operation.†(Ibid.)
Even assuming that the 2009 Protocol
is not valid as a “standardized assessment protocol†(§ 6601, subd. (c)), defendant
is not entitled to appellate relief. Defendant
argues the trial court lacked jurisdiction to proceed with his
commitment since he was evaluated by an
invalid protocol. He contends
that dismissal of the petition was the appropriate remedy. Defendant acknowledges that
805, 818-819 (Medina), a case
involving a similar challenge to an SVP commitment, suggested that an appellant
must show some prejudice in order to obtain appellate relief. Defendant claims that to the extent that
it was “sufficient that the petition should have been dismissed. [Citations.]
Had the court not erred, the petition would have been dismissed.â€
Here, the trial court would not have
been deprived of jurisdiction to proceed with defendant’s commitment
proceedings. “Use of the evaluations
based on the invalid assessment protocol, though erroneous, does not deprive
the trial court of fundamental jurisdiction over the SVPA commitment petition. The trial court has the power to hear the
petition notwithstanding the error in using the invalid assessment protocol.†(In re
Ronje (2009) 179 Cal.App.4th 509, 518; see also Medina, supra, 171 Cal.App.4th at pp. 816-818.) Furthermore,“[i]llegalities 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.’ [Citation].†(In re Wright (2005) 128 Cal.App.4th
663, 673; see also
pp. 818-819; Reilly v. Superior Court (2013)
57 Cal.4th 641, 653 (Reilly).) In Reilly,
the Supreme Court clarified that a defendant may obtain “relief arising from
use of an invalid protocol in an SVP evaluation†only if he or she demonstrates
that “the error was material.†(
there is “ ‘a reasonable probability, sufficient to undermine confidence in the
outcome, that the error affected the evaluator’s ultimate conclusion’ †or that
the error “ ‘reasonably might
have affected the outcome’ †of the proceedings. (See id.
at p. 654.)
In
this case, the trial court found
probable cause to believe defendant was an SVP, and it ultimately found him to
be an SVP at trial, after considering evidence of his sexually violent
offenses, his diagnosed mental
disorders, and his scores on numerous risk assessment tools. Defendant presented no evidence to contradict
the evaluations presented at trial, and he “does not contend the evidence was
insufficient to support [the trial court’s] finding.†(People v. Landau (2013) 214
Cal.App.4th 1, 17 (Landau).) Under the circumstances, “[t]here is no
indication in this record†that the initial evaluations, conducted
pursuant to the 2009 Protocol, “affected defendant’s trial.†(See People
v. Pompa-Ortiz (1980) 27
Cal.3d 519, 530.) In short, defendant
has failed to show that the use of the 2009 Protocol resulted in a material
error (Reilly, supra, 57 Cal.4th
at p. 655), and thus we conclude he is not entitled to any relief.
Defendant
relies on Butler v. Superior Court (2000)
78 Cal.App.4th 1171 (Butler),
that “substantive irregularities in the evaluation process, foundational to the
filing of a recommitment petition, required the petition to be dismissed.†However, defendant’s reliance on those cases is
misplaced. In Butler, the
prosecutor filed a petition under the SVPA based on only one evaluation by a
mental health professional. (Butler,
supra, 78 Cal.App.4th at p.
1174.) This court issued a writ of
mandate directing the trial court to dismiss the petition. (Ibid.) In an identical factual situation, the court
in Peters issued a writ of mandate ordering the trial court to set aside
its order denying the defendant’s motion to dismiss. (Peters, supra, 79 Cal.App.4th at pp. 847,
851.) In Gary, the trial court
dismissed the petition for recommitment under the SVPA because one of the
mental health professionals recommended against recommitment. (Gary, supra, 85 Cal.App.4th at p. 211.)
The reviewing court denied the People’s writ petition. (Id. at p. 220.) In contrast to these cases, here, there were
two or more evaluations determining that defendant met the criteria of an SVP;
defendant did not file a writ petition and the matter proceeded to trial; and at
trial, defendant did not present any evidence proving that he was not an SVP. Given the procedural posture of the case,
appellant was required to show prejudice at trial, and he failed to do so.
C. Equal Protection
Defendant contends
that the SVPA’s indeterminate commitment scheme violates principles of equal
protection. He claims that the SVPA
“unjustifiably treats persons subject to SVP commitments more harshly than
persons subject to the state’s other civil commitment schemes.â€
In McKee
I, the defendant argued that his
indeterminate commitment under the SVPA violated his equal protection rights
because the SVPA treats SVP’s significantly less favorably than similarly
situated individuals who are civilly committed under other statutes. (McKee
I, supra, 47 Cal.4th at p. 1196.)
The California Supreme Court determined
that SVP’s and mentally disordered offenders (MDO’s; Pen. Code, § 2960 et seq.)
are similarly situated for equal protection purposes because they have been
involuntarily committed with the objectives of treatment and protection of the
public. (McKee I, supra, 47
Cal.4th at p. 1203.) The court also
determined that SVP’s have “different and less favorable procedural
protections†than MDO’s because “SVP’s under the amended [SVPA] are given
indeterminate commitments and thereafter have the burden to prove they should
be released (unless the [Department] 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.†(Id. at p. 1202.) The court
rejected the appellate court’s finding that “the legislative findings recited
in the [Proposition 83] ballot initiative†were sufficient to justify the
disparate treatment of SVP’s and MDO’s.
(Id. at p. 1207.)
The California Supreme Court found
that SVP’s and persons not guilty of a felony by reason of insanity (NGI’s;
Pen. Code, § 2960 et seq.) are also similarly situated and “a comparison of the
two commitment regimes raises similar equal protection problems
. . . .†(
Consequently, the court agreed with the defendant “that, as with MDO’s,
the People have not yet carried their burden of justifying the differences
between the SVP and NGI commitment statutes.â€
(Ibid.)
However, in McKee I, the California Supreme Court did “not conclude that the
People could not meet [their] burden of showing the differential treatment of
SVP’s is justified.†(
The court gave the People “an opportunity to make the appropriate
showing on remand,†noting that the People would have to show 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.†(
The McKee I court then remanded the case with the following
instructions: “We therefore remand this
case to the trial court to determine whether the People, applying the equal
protection principles articulated in [In
re Moye (1978) 22 Cal.3d 457 (Moye)]
and related cases discussed in the present opinion, can 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. The trial court may, if appropriate, permit
expert testimony. [¶] . . .
On remand, the government will have an opportunity to justify
Proposition 83’s indefinite commitment provisions, at least as applied to
McKee, 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.
[¶] Moreover, we emphasize that
mere disagreement among experts will not suffice to overturn the Proposition 83
amendments. The trial court must
determine whether the legislative distinctions in classes of persons subject to
civil commitment are reasonable and factually based—not whether they are
incontrovertible or uncontroversial. The
trial court is to determine not whether the statute is wise, but whether it is
constitutional.†(McKee I, supra, 47
Cal.4th at pp. 1208-1211, fns. omitted.)
On remand from McKee I, “the
trial court conducted an evidentiary hearing to determine whether the People
could justify the [SVPA’s] disparate treatment of SVP’s under the strict
scrutiny standard for equal protection claims.
At the hearing, the People presented the testimony of eight witnesses
and documentary evidence. The trial
court also allowed McKee to present evidence; he presented the testimony of 11
witnesses and documentary evidence. The
court issued a 35-page statement of decision summarizing the extensive
testimonial and documentary evidence presented at the hearing and finding the
People had met their burden to establish, by a preponderance of the evidence,
that the disparate treatment of SVP’s under the [SVPA] was based on a
reasonable perception of the greater and unique dangers they pose compared to
MDO’s and NGI’s.†(McKee II, supra,
207 Cal.App.4th at p. 1332.)
McKee appealed, and Division One of the Fourth Appellate District
affirmed the trial court’s order. (McKee
II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In McKee
II, the appellate court explained that it would “independently determine
whether the People presented substantial, factual evidence to support a
reasonable perception that SVP’s pose a unique and/or greater danger to society
than do MDO’s and NGI’s, thereby justifying the disparate treatment of SVP’s
under the [SVPA].†(Id. at p. 1338.)
After performing its
presented in the 21-day evidentiary hearing held in the trial court (McKee
II, supra, 207 Cal.App.4th at p. 1330), the McKee II court made several findings. First, with respect to recidivism, the court
determined that the expert witness testimony of three psychologists, as well
several studies and the Static-99 data comparing recidivism rates, was
sufficient to show that “the inherent nature of the SVP’s mental disorder makes
recidivism as a class significantly more likely than recidivism of sex
offenders generally, but does not show SVP’s have, in fact, a higher sexual
recidivism rate than MDO’s and NGI’s. . . .
Regardless of the shortcomings or inadequacy of the evidence on actual
sexual recidivism rates, the Static-99 evidence . . . supports, by itself, a
reasonable inference or perception that SVP’s pose a higher
or NGI’s.†(Id. at p. 1342.)
The Static-99 evidence included in
the Department’s data showed that the average Static-99 score for all SVP’s
civilly committed since 2006 was 6.19, which placed them in the “ ‘high’
risk category for sexual reoffense.†(
In contrast, the average Static-99 score for MDO’s at Patton State
Hospital subject to sex offender registration under Penal Code section 290 in
2010 was 3.6, “placing them in the ‘moderate-low’ risk category for sexual
reoffense.†(Ibid.) The average Static-99
score for all patients discharged from Atascadero State Hospital since January
1, 2010, and subject to sex offender registration, including MDO’s and NGI’s,
was 4.6, which placed them in the “ ‘moderate-high’ risk category for sexual
reoffense.†(Id. at pp. 1341-1342.)
Second, the McKee II court considered whether the People had “presented
evidence that the victims of sex offenses suffer unique and, in general,
greater trauma than victims of nonsex offenses.†(McKee
II, supra, 207 Cal.App.4th at p.
1342.) Based on the expert witness
testimony, the court concluded that “there is substantial evidence to support a
reasonable perception by the electorate, as a legislative body, that the harm
caused by child sexual abuse and adult sexual assault is, in general, a greater
harm than the harm caused by other offenses and is therefore deserving of more
protection.†(Id. at pp. 1343-1344.)
Third, the McKee II court found that there was “substantial evidence to
support a reasonable perception by the electorate that SVP’s have significantly
different diagnoses from those of MDO’s and NGI’s,[
their respective treatment plans, compliance, and success rates are likewise
significantly different. That evidence
and the evidence on recidivism . . . , as the trial court found, ‘supports the
conclusion that, as a class, SVP’s are clinically distinct from MDO’s and NGI’s
and that those distinctions make SVP’s more difficult to treat and more likely
to commit additional sexual offenses than are MDO’s and NGI’s.’ In particular, SVP’s are less likely to
participate in treatment, less likely to acknowledge there is anything wrong
with them, and more likely to be deceptive and manipulative. . . . Furthermore, there is substantial evidence to
support a reasonable inference that an indeterminate, rather than a determinate
(e.g., two-year), term of civil commitment supports, rather than detracts from,
the treatment plans for SVP’s.†(
The appellate court therefore
concluded in McKee II that “the People
on remand met their burden to present substantial evidence, including medical
and scientific evidence, justifying the amended [SVPA’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). [Citation.]â€
(McKee II,
p. 1347.) Accordingly, the trial
court’s order rejecting the defendant’s equal protection claim and affirming
his indeterminate commitment under the SVPA was upheld. (Id.
at p. 1350.) The California Supreme
Court denied review of McKee II on
October 10, 2012, and therefore the proceedings
on remand from McKee I are now final.
Defendant
contends that “[t]he McKee
flawsâ€: (1) it failed to properly
conduct a de novo review; (2) it failed to properly apply the strict scrutiny
test; and (3) under a proper application of the strict scrutiny test, the facts
it relied upon did not justify a disparate treatment of SVP’s.
First, we
disagree with defendant’s claim that the McKee II court failed to
properly conduct a de novo review. Defendant acknowledges that the appellate
court stated that it was conducting a de novo review (McKee II, supra,
207 Cal.App.4th at p. 1338), but he points out that the appellate court stated
that it was determining “whether the People presented substantial evidence to
support a reasonable inference or perception that the [SVPA’s] disparate
treatment of SVP’s is necessary to further compelling state interests. [Citations.]â€
(Id. at p. 1339.) He argues that the above standard “does not
describe de novo review.†Further, he
asserts that the court’s review of the evidence did not satisfy the de novo
standard, as the court ignored McKee’s evidence and accepted the People’s
evidence as accurate.
Having reviewed the opinion, we believe the McKee
II court’s description of its review is consistent with an independent, de
novo review of the evidence, as well as with the Supreme Court’s opinion and
directions in McKee I. After the McKee I court remanded the
case, the McKee II court independently reviewed all of the evidence and concluded that “the disparate treatment of
SVP’s under the [SVPA] 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 p.
1348.) We discern no error. Additionally,
we note that other courts have rejected a similar challenge to McKee II. (See People v. McKnight
(2012) 212 Cal.App.4th 860, 864 (McKnight)
[finding that the “claim that the appellate court failed to independently
review the trial court’s determination is frivolousâ€]; Landau,
v. McDonald (2013) 214 Cal.App.4th 1367, 1378, 1381.)
Second, we reject defendant’s claim that the McKee
II court in effect applied a rational basis test rather than a strict
scrutiny test in reviewing the evidence presented at the hearing. Defendant claims that “it was not enough to
simply show that the legislature or the voters could reasonably believe that
SVP[’]s were more dangerous as a class.
The prosecution had to show that SVP[’]s actually were more dangerous as
a class.†He
criticizes McKee II for analyzing only whether the voters had a “ ‘reasonable
perception’ †that SVP’s are more dangerous than MDO’s or NGI’s, rather
than whether those perceptions were accurate.
(McKee II, supra, 207 Cal.App.4th at p. 1342.)
We
disagree that McKee II failed to apply strict scrutiny. The McKee II court referred to the issue
as “whether the People presented substantial evidence to support a reasonable
inference or perception that the [SVPA’s] disparate treatment of SVP’s is necessary
to further compelling state interests. [Citations.]†(McKee II, supra, 207 Cal.App.4th
at p. 1339, italics added.) Moreover,
the appellate court’s use of the phrase “reasonable inference or perception†(ibid.)
reflects the California Supreme Court’s remand instructions: in McKee I, the court stated, “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, fn. omitted.) Thus, in applying
the strict scrutiny test, McKee II followed the language set forth in McKee
I.
Furthermore, defendant argues that the People failed to show that
the disparate treatment of SVP’s (i.e., shifting the
jury trials, and imposing an indeterminate term) was necessary. Relying
on Bernal v. Fainter (1984) 467 U.S. 216 (Bernal) and
defendant argues that “[t]he element of necessity under the strict scrutiny
standard required that the prosecution show that the disparate treatment of SVP[’]s
constituted the least restrictive means possible.†Defendant contends that the
II court misapplied the
strict scrutiny test by improperly “reject[ing] the need for the prosecutionâ€
to show that the disparate treatment of SVP’s was the least restrictive means.
McKee
made a similar argument relying on Bernal,
and the McKee II court rejected it.
(McKee II, supra, 207 Cal.App.4th at p. 1349.) In Bernal, the United States Supreme
Court stated that “[i]n order to withstand strict scrutiny, the law must
advance a compelling state interest by the least restrictive means available.†(Bernal, supra, 467 U.S. at p.
219.) The McKee II court
described the quoted sentence from Bernal as “probable dictum,â€
distinguishing Bernal because it involved a suspect class,
alienage. (McKee II, supra, 207
Cal.App.4th at p. 1349.) “We are unaware
of any case applying the ‘least restrictive means available’ requirement to all
cases involving disparate treatment of similarly situated classes,†the McKee
II court wrote. (Ibid.) “On the contrary, our review of equal
protection case law shows the two-part test, as discussed in Moye[,
[I], is the prevailing standard. . . . Therefore, in strict scrutiny cases, the
government must show both a compelling state interest justifying the disparate
treatment and that the disparate treatment is necessary to further that
compelling state interest.
[Citations.] We are unpersuaded
the electorate that passed Proposition 83 in 2006 was required to adopt the
least restrictive means available (e.g., a two-year or other determinate term
of civil commitment) in disparately treating SVP’s and furthering the
compelling state interests of public safety and humane treatment of the
mentally disordered.†(McKee II,
supra, 207 Cal.App.4th at
p. 1349.)
We
agree with the McKee II court’s analysis of this issue. We note that Moye, like McKee II
and like this case, involved an equal protection challenge to a civil
commitment statute. In remanding the case in McKee I, the California Supreme Court instructed the trial court to
“apply[] the equal protection principles articulated in Moye and related cases discussed in the [McKee I] opinion†(McKee I,
supra, 47 Cal.4th at p. 1208), and to
determine whether, after a trial, the People had shown that imposing on SVP’s
greater burdens to obtain release from commitment is necessary to promote the
state’s compelling interests in public safety and humane treatment of the
mentally ill (id. at pp. 1207-1211). Given the evidence presented in McKee II
– that the vast majority of SVP’s are diagnosed with pedophilia or other
paraphilias, that a paraphilia ordinarily persists throughout a patient’s
lifetime, that treatment is not focused on medication, and that most SVP’s do
not participate in treatment (McKee II, supra, 207 Cal.App.4th at
pp. 1344-1345) – we have no basis for concluding that an indeterminate
term is not necessary to further the compelling state interest in providing
treatment to SVP’s and protecting the public or that there is any less
burdensome alternative to effectuate those interests.
Third, we disagree with defendant’s contention that the evidence in the
McKee II trial did not support
the appellate court’s ruling that SVP’s were more dangerous than MDO’s and
NGI’s and thus harsher treatment was necessary.
Defendant makes several contentions in this regard.
Defendant claims that McKee II erroneously concluded that
“[t]he People presented evidence showing the inherent nature of the SVP’s
mental disorder makes recidivism significantly more likely for SVP’s as a class
than for MDO’s and NGI’s.†(
did not examine any evidence comparing the sexual recidivism rate of SVP’s with
the sexual recidivism rate of MDO’s and NGI’s; rather, the court compared the SVP’s rate of reoffending with rates of
other types of crimes, which was “not relevant to the matter at hand.â€
In McKee II, the People presented the testimony of three expert witnesses, studies, and the Static-99 data
comparing recidivism rates. The McKee II court acknowledged that
the evidence presented only showed that “the inherent nature of the SVP’s
mental disorder makes recidivism as a class significantly more likely than
recidivism of sex offenders generally, but does not show SVP’s have, in fact, a
higher sexual recidivism rate than MDO’s and NGI’s.†(McKee
II, supra, 207 Cal.App. 4th at p.
1342.) Nonetheless, the court found that
the recidivism rate evidence was “ ‘significant, given that the goal of the SVP[A]
is specifically to protect society from particularly serious sexual offenses.’
†(Ibid.) In reaching this inference,
that the scores on the Static-99 test, which assesses the risk that a sex offender will commit new sex offenses, was higher
for SVP’s than for non-SVP sex offenders.
(Id. at p. 1342.) The court
noted that “[r]egardless of the shortcomings or inadequacy of the evidence on
actual sexual recidivism rates, the Static-99 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.â€
(Ibid.) In so concluding, McKee
II thus followed McKee I, where the California Supreme Court
suggested that evidence concerning a greater risk of recidivism by SVP’s
was one type of evidence that the People might present to show 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, supra,
47 Cal.4th at p. 1208.)
Defendant
also claims that McKee II reached its conclusion that victims of sex
offenses suffer greater trauma without any evidence regarding the trauma caused
by non-sex offenses. Defendant contends
that (1) the testimony of the medical experts was focused on child sexual abuse
and that “[i]t is unclear if that testimony is properly extrapolated to adult
victims of sexual offenses,†and (2) the court cited to no evidence regarding
the effects and trauma suffered by victims of other types of crime. We disagree.
First, although one of the three medical experts testified specifically
about child sexual abuse, the two other experts testified generally about
sexual abuse victims. (McKee
II, supra, 207 Cal.App.4th at pp.
1342-1343.) Second, the evidence relied on by the McKee
II court included testimony 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.†(Ibid.)
Defendant
further claims that the evidence concerning differences in diagnoses,
treatment, compliance, and success rates between SVP’s and MDO’s or NGI’s did
not support “the need to eliminate periodic jury trials, the need to shift the
burden of proof, or the need to impose indeterminate commitments.†Defendant claims that (1) the
evidence, conducted a substantial evidence review rather than a de novo review,
(2) treatment is not actually required before an SVP may be eligible for
release, and (3) the McKee II court
failed to consider whether indeterminate commitments were the least restrictive
means and that a commitment term of five years would have been a less
restrictive mean.
We
are not persuaded by defendant’s argument.
As discussed, the McKee II court
conducted a proper de novo review, which followed the Supreme Court’s opinion
and direction in McKee I. The court determined whether there was
substantial evidence that “ ‘supports the conclusion that, as a class,
SVP’s are clinically distinct from MDO’s and NGI’s and that those distinctions
make SVP’s more difficult to treat and more likely to commit additional sexual
offenses than are MDO’s and NGI’s.’ †(McKee
II, supra, 207 Cal.App.4th
at p. 1347; see also McKnight, supra,
212 Cal.App.4th at p. 864.) As to
defendant’s claim that treatment is not a requirement for an SVP’s release and
to the extent conflicting evidence was introduced at the trial, the People’s
burden was to show that “the legislative distinctions in classes of persons
subject to civil commitment are reasonable and factually based—not [that] they
are incontrovertible or uncontroversial.â€
(McKee I, supra, 47 Cal.4th at pp. 1210-1211; accord,
Indeed, the People fulfilled this burden by presenting expert testimony
and studies, which supported the finding that treatment of SVP’s is
significantly different from treatment of MDO’s and NGI’s and that SVP’s are
less likely to participate in treatment. Defendant also fails to make a persuasive argument
that the SVPA’s imposition of an indeterminate term of commitment was not the
least restrictive means to further the state’s compelling interest in
protecting the public and providing treatment to SVP’s or that a five-year term
would equally effectuate those interests.
As discussed, the court conducted a proper strict scrutiny analysis in
determining that imposing greater burdens on SVP’s was necessary to further the
state’s compelling interests.
Furthermore, narrow tailoring to serve a compelling state interest does
not require exhaustion of every conceivable alternative. (See Grutter v. Bollinger (2003)
539 U.S. 306, 339.)
Lastly, defendant asserts that
“there were three separate but related elements that were under attack in
McKee’s equal protection challenge,†that is, the indeterminate term of
commitment, the elimination of the right to a periodic jury trial, and the
shifting of the burden of proof. Defendant
argues that the evidence presented in McKee II did not address the
latter two issues. This argument is
without merit. Following independent
review of the evidence, McKee II concluded that “the People on remand
met their burden to present substantial evidence, including medical and
scientific evidence, justifying the amended [SVPA’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),†and that “the disparate
treatment of SVP’s under the [SVPA] 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. 1347, 1348.)
In light of the Supreme Court’s
clearly expressed intent to avoid an unnecessary multiplicity of proceedings,
the Supreme Court’s denial of review in McKee II, and our conclusions
regarding the asserted flaws in McKee II, we find that defendant’s equal
protection claims are without merit and do not require a remand for a further
evidentiary hearing.
Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, ACTING P.J.
WE CONCUR:
__________________________
Márquez, J.
__________________________
GROVER, J.
| Description | Following a court trial, the court found true beyond a reasonable doubt that defendant James Ryan was a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (See Welf. & Inst. Code, § 6600 et seq.)[1] By order filed May 30, 2012, the court ordered him committed for an indeterminate term to the custody of the California Department of Mental Health (now, State Department of State Hospitals; hereafter the Department). The order specified that it was “subject to the ultimate decision in People v. McKee (2010) 47 Cal.4th 1172†(McKee I). On November 9, 2012, after the California Supreme Court denied review in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II), the trial court filed an order committing defendant for an indeterminate term “as previously ordered.†On appeal, defendant argues (1) that he was not evaluated with a valid “standardized assessment protocol†as mandated by section 6601, subdivision (c) and thus, that the subsequent commitment proceedings violated due process, and (2) that the SVPA’s indeterminate commitment violates principles of equal protection. We conclude that neither of defendant’s claims is meritorious, and we will therefore affirm the judgment. |
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