P. v.
Filed 6/12/13 P. v. Warren CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW DANG WARREN,
Defendant and Appellant.
D061229
(Super. Ct.
No. MH101770)
APPEAL from
an order of the Superior Court
of
County, Kerry Wells, Judge.
Affirmed.
Rudy Kraft
for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Lilia E. Garcia, Lynne McGinnis, Felicity Senoski, Deputy
Attorneys General for the Plaintiff and Respondent.
Andrew Dang Warren appeals an order
involuntarily committing him for an indeterminate term to the custody of the
(DMH) after a jury found him to be a sexually violent predator (SVP) under the
amended Sexually Violent Predators Act (SVPA)
within the meaning of Welfare and Institutions Code
section 6600 et seq. Warren contends the
order must be reversed because (1) the court erroneously denied him an
opportunity to question the prosecution's psychological experts in order to
reveal their bias because they overdiagnosed SVP's; (2) the court erroneously
refused to instruct the jury with a pinpoint instruction modifying CALCRIM No.
3454; (3) the SVPA violates state and federal due process guarantees by
imposing an indeterminate term on SVP's and requiring them to prove they no
longer qualify as SVP's; (4) the SVPA violates equal protection guarantees under the state and federal
Constitutions; and (5) the SVPA violates ex post facto and
constitutional prohibitions. We affirm
the order of commitment.
FACTUAL
BACKGROUND
In June 2010, the People filed an amended
petition seeking to commit Warren
as an SVP for an indeterminate term. At
trial, the parties stipulated that in 1999, Warren
was convicted of two counts of lewd and lascivious acts on a child under the
age of 14, for which he was sentenced to a determinate prison term of 8
years. In 2000, Warren
was convicted of two counts of second degree child molestation, for which he
was sentenced to 12 years in prison. Following a December 2011
trial, a jury found Warren
qualified as an SVP, and the court committed him to the DMH for an
indeterminate term.
DISCUSSION
I.
Admissibility of Evidence Claim
Challenging the
court's decision to exclude comparative statistics from two of his evaluating
psychologists, Warren contends:
"Since the objective here was to determine whether [he] was an SVP,
the relevant question was whether the evaluators had a tendency to find persons
to be an SVP more often then [sic] they actually were, less often then [sic]
they actually were, or about as often as they actually were. Thus, [his] desire to compare the rates of
positive findings for each of the testifying prosecution experts to the actual
rates at which people are found to be SVPs is exactly the comparison that was
necessary in order to evaluate whether the individual experts were biased."
Warren contends the
court's failure to admit this evidence prejudiced him "because it allowed
the prosecution's expert to inaccurately appear as unbiased and highly
qualified experts [sic], when in fact they were witnesses with a strong
bias and propensity to testify against persons alleged to be SVPs."
A. Background
Two psychologists testified for the
prosecution. Craig Updegrove, Ph.D.
diagnosed Warren with pedophilia,
opining Warren is a danger to
the health and safety of others because he likely will engage in sexually
violent predatory criminal behavior absent appropriate treatment in
custody. Dr. Updegrove testified that
approximately three percent of individuals released from California prisons since
1996 were found by at least one psychologist to meet the criteria for
registration as a sex offender. In
subsequent evaluations, those criminals' conviction records were analyzed to
determine if they qualified as SVP candidates.
Having evaluated approximately 825 individuals, Dr. Updegrove calculated
that approximately 16 percent of those he had evaluated qualified as sex
offenders. But he noted that starting in
2006, following a change in the law, only 8 or 9 percent of those he evaluated
qualified as sex offenders.
On Dr. Updegrove's cross-examination, this
extended exchange regarding those statistics occurred:
"[Defense counsel:] Of those who received full evaluations, are
you aware—do you have any statistics about how many ultimately are found to
meet criteria as a matter of law?
"[Prosecutor:] Your Honor, I'm going to object as
relevance. I think that's a jury
determination.
"The Court: Sustained.
"[Defense counsel:] Let me ask it this way: You told us about 8 or 9 percent of your
evaluations since 2006 have yielded a result of positive for SVP criteria. Correct?
"[Dr. Updegrove:] Yes.
"[Defense counsel:] In other words, positive for criteria meaning
you would give the opinion that the person qualifies for SVP.
"[Dr. Updegrove:] Yes.
"[Defense counsel:] And that 8 or 9 percent overstates about
three times the statistics on people that are actually found to meet criteria;
correct?
"[Prosecutor:] Your Honor, object again. Relevance.
I'm not sure the relevance of other jury findings.
"The Court: Sustained.
"[Defense counsel:] In terms of the accuracy of your opinions
when you find someone meets criteria, do you track the cases where you render
an opinion and match it against an ultimate result?
"[Dr. Updegrove:] No. I
don't have access to that data.
"[Defense counsel:] Does the DMH?
"[Dr. Updegrove:] Not in a systematic way. So there's no data that would track that.
"[Defense counsel:] Am I correct in stating, then, that you
aren't able to tell us—you've told us the percentage, but you don't have any
way of telling us how accurate your predictions are?
"[Prosecutor:] Objection.
Vague and relevance.
"The Court: Sustained."
Outside of the presence of the jury, defense
counsel continued to argue based on statewide statistics from several
years: "[A]bout 2 percent of all
the evaluated [released prisoners] are ultimately found to meet criteria [as
SVP's] . . . just found to meet criteria.
I'm not saying [by a] jury.
[¶] And I think that when, in an
effort to show how neutral they are, the evaluators tell us that they only
find, for example, 10 or 15 or 20 percent of their evaluations to meet
criteria, they're, in essence, telling us they're overpredicting by at least,
statistically speaking, by a power of [sic] 5 or 10 and I think the jury
ought to know that."
The court disagreed, explaining its decision
to sustain the objection: "I think
that how many times [the psychologists] have found someone to qualify or not
[as an SVP] is relevant to show whether they do have a bias or tendency to
frequently find or frequently not find [SVP's].
But what the ultimate conclusions are of a jury or a judge I think has
nothing to do with whether [the psychologists] have a bias or not or whether
they're right or not. That is up to the
jury. [¶] That's like asking how many times has a jury
found defendants guilty of rape. It's
completely irrelevant. Depends on the
circumstances of each case. [¶] Those statistics might be interesting from a
societal perspective and the whole putting everything in perspective, but it
has nothing to do with this jury's determination regarding the facts of this
case."
The second psychologist, Steven Jenkins,
Ph.D., concluded Warren qualified as an SVP.
Dr. Jenkins testified that since becoming a member of the DMH panel in
May 2007, he had performed 225 evaluations, including both initial evaluations
and updated evaluations. Eighteen
percent of those whose initial evaluation he conducted met the criteria for
being SVP's.
B. Analysis
To be relevant,
evidence must have a tendency in reason to prove or disprove a fact in
dispute. (Evid. Code, § 210.) The trial court has wide discretion in
admitting evidence. Here, the trial
court did not err in excluding the comparative statistics from the
psychologists because the comparators are mismatched. Specifically, the two different decision
makers—psychologists and jurors—have different responsibilities in SVP cases,
and they use different criteria to reach conclusions about different subject
matters. To elaborate, the evaluating psychologists
are charged with making clinical diagnoses based on a battery of tests,
interviews with the prisoner, and a review of police and probation reports,
medical records, and so on. By contrast,
the jurors' role is to decide whether the prosecutor has proved beyond a
reasonable doubt that the subject qualifies as an SVP, based on criteria set
forth in the relevant jury instruction.
In reaching their decision, the jurors avail themselves of the
psychologists' evaluations, and to that extent there is an overlap in
findings. But the jurors do not conduct
their own clinical evaluation or make a diagnosis. Therefore, the trial court did not err in
ruling there is no meaningful way to compare the rates at which the evaluating
psychologists determined who qualified for registration as sex offenders with
jurors' findings of who qualified as SVP's.
Separately, Dr. Updegrove testified that no available data was kept
regarding the comparative statistics that defense counsel sought. Lack of such evidence hindered Warren's
ability to draw out the comparison he sought to make. Finally, we reject Warren's contention that
the court erred in sustaining the prosecutor's objection to further questions
about the comparative statistics and denied him an opportunity to show the
psychologists were biased. Contrary to
Warren's contention, that line of questioning would not have evinced bias on
the part of the evaluating psychologists.
Rather, the questions sought irrelevant information because the
comparators were mismatched.
Under the applicable standard of review stated
in People v. Watson (1956) 46 Cal.2d 818, 836, we consider whether,
after an examination of the entire cause, it appears reasonably probable the
defendant would have obtained a more favorable outcome had the court not
excluded the challenged testimony. (People
v. Buffington (2007) 152 Cal.App.4th 446, 456.) We conclude any error was harmless because
the record included adequate statistical evidence evincing that the
psychologists' rate of positive evaluation for sex offender registration was
double, or even triple, the statewide rate of 3 percent of ex prisoners who
were determined to meet the criteria for registration as sex offenders. From that data, the jury could find, if it
were so inclined, that the testifying psychologists were biased, but instead,
the jury still elected to find Warren was an SVP. Any further testimony on this point would
have been based on mismatched comparators, and therefore inapplicable to
support Warren's attempt to evince bias on the part of the psychologists.
II.
Instructional Error Claim
Relying on Kansas v. Crane (2002) 534
U.S. 407 (Crane) and In re Howard N. (2005) 35 Cal.4th 117 (Howard
N.), Warren contends that, under both state and federal law, a person
cannot be subjected to civil commitment unless he suffers from a mental
disorder making it seriously difficult for him to control his dangerous
behavior. Warren thus contends the trial
court committed reversible error by denying his request for a pinpoint
instruction that explained this legal principle.
A. Background
The trial court instructed the jury with
CALCRIM No. 3454 regarding the People's burden of proof: "The petition alleges that Mr. Andrew
Warren is a sexually violent predator.
[¶] To prove this allegation, the
People must prove beyond a reasonable doubt that: [¶]
1. He has been convicted of
committing sexually violent offenses against one or more victims; [¶]
This element has been stipulated to by the parties and the jury must
accept this fact as proven beyond a reasonable doubt. [¶] 2. He
has a diagnosed mental disorder;
[¶] 3. As a result of that diagnosed mental
disorder, he is a danger to the health and safety of others because it is
likely that he will engage in sexually violent predatory criminal
behavior; [¶] AND
[¶] 4. It is necessary to keep
him in custody in a secure facility to ensure the health and safety of
others."
CALCRIM No. 3454 also provided the jury with
additional guidance regarding these elements:
"The term diagnosed mental disorder includes conditions either
existing at birth or acquired after birth that affect a person's ability to
control emotions and behavior and predispose that person to commit criminal
sexual acts to an extent that makes him or her a menace to the health and
safety of others. [¶] A person is likely to engage in sexually
violent predatory criminal behavior if there is a substantial, serious, and
well-founded risk that the person will engage in such conduct if released into
the community."
At a hearing on jury instructions, the trial court
considered and rejected Warren's request to modify CALCRIM No. 3454 to state
that the jury was required to find he had serious difficulty in controlling his
behavior.
B. Applicable Law
The California Supreme Court rejected a
substantially similar argument to that made by Warren in People v. Williams
(2003) 31 Cal.4th 757, 774-776 (Williams).
The Williams petitioner challenged his
commitment under the SVPA, arguing the jury in his case did not receive
special, specific instruction regarding the need to find serious difficulty in
controlling behavior. (Williams,
supra, 31 Cal.4th at pp. 759-760.)
The Williams court held that specific impairment-of-control
instructions are not constitutionally required in California. (Id. at pp. 776-777.) The court reasoned the language of the SVPA
"inherently encompasses and conveys to a fact finder the requirement of a
mental disorder that causes serious difficulty in controlling one's criminal
sexual behavior." (Id. at p.
759.)
The Williams court also expressly found
that "[Crane], supra, 534 U.S. 407, does not compel us to
hold that further lack-of-control instructions or findings are necessary to
support a commitment under the SVPA."
(Williams, supra, 31 Cal.4th at pp. 774-775.) In reaching this conclusion, the California
Supreme Court emphasized: "[A]
judicially imposed requirement of special instructions augmenting the
clear language of the SVPA would contravene the premise of . . . [Crane],
supra, 534 U.S. 407, that, in this nuanced area, the Legislature is
the primary arbiter of how the necessary mental-disorder component of its
and described." (Williams,
supra, at p. 774.)
C.
Warren acknowledges Williams but argues
there was a "problem with the Supreme Court's analysis." We summarily reject this argument since this
court is bound by that case. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Warren further contends the California Supreme
Court changed its view expressed in Williams, supra, 31 Cal.4th
757 when it decided Howard N., supra, 35 Cal.4th 117, and, in
Warren's words, "the statutory language, merely by its existence, does not
necessarily contain within it the necessary information that a jury needs in
order to decide whether the defendant has a serious difficulty in controlling
his dangerous behavior." We are not
persuaded.
Howard N. did not involve a commitment under the SVPA; rather, the defendant
challenged his commitment to the California Youth Authority pursuant to section
1800 et seq. (Howard N., supra,
35 Cal.4th at p. 122-123.) The Howard
N. court held that, although that statute does not expressly require a
finding the person's mental deficiency, abnormality, or disorder causes serious
difficulty controlling behavior, it should be interpreted to contain such a
requirement in order to preserve its constitutionality. (Id. at pp. 122, 135-136.) The California Supreme Court repeatedly
distinguished the statute at issue in that case from the SVPA. (Howard N., at pp. 127,
130-131, 136-137.) The court also
affirmed its key holdings in Williams that (1) a jury instructed in the
language of the SVPA " 'must necessarily understand the need for serious
difficulty in controlling behavior' " and (2) " 'separate
instructions or findings on that issue are not constitutionally required.'
" (Howard N., at p.
130.) Thus, contrary to Warren's
contention, the California Supreme Court has not modified its views expressed
in Williams, supra, 31 Cal.4th 757.
Finally, Warren attempts to distinguish Williams
on its facts. The pinpoint instruction
the Williams defendant requested stated that " 'the diagnosed
mental disorder must render the person unable to control his dangerous
behavior.' " (Williams,
supra, 31 Cal.4th at p. 763, italics omitted.) As Warren points out, this proposed
instruction did not accurately reflect the law, which requires only a
"serious difficulty in controlling behavior." (Crane, supra, 534 U.S. at p.
413.) Therefore, Warren would limit
application of Williams to cases in which the alleged SVP failed to
request an accurate pinpoint instruction regarding the volitional requirement
implicit in the mental disorder element of the SVPA. On this premise, Warren claims his proposed
special instruction was an accurate statement of the law and "nothing in Williams
suggested that it would be error for the trial court to augment the statutory
language with the serious difficulty in controlling dangerous behavior
language."
Warren notes that Justice Kennard filed a
concurring opinion in Williams in which she suggested that in future
SVPA cases it "would be prudent" to explain to jurors "that
defendants cannot be found to be sexually violent predators unless they have
serious difficulty in controlling their behavior." (Williams, supra, 31 Cal.4th at p. 780
(conc. opn. of Kennard, J.).) However,
no other justice joined in that recommendation, and it lacks precedential
value.
Moreover, nothing in Howard N.,
supra, 35 Cal.4th 117 abrogates the holding in Williams, supra,
31 Cal.4th 757. Because no separate
instruction on the issue of control is required when the jury is instructed in
the statutory language of the SVPA (Williams at pp. 776-777), and Warren
makes no contention the jury instructions given in his case failed to follow
the statutory language of the SVPA, we conclude no error arose from the trial
court's failure to give the special instruction requested by Warren's trial
counsel.
III.
Due Process, Ex Post Facto, and Double Jeopardy
Claims
In
his opening brief, Warren contends the amended SVPA violates due process
by "replacing the two-year term with an indeterminate term and shifting
the burden of proof onto the defendant to prove his entitlement to
release." He further contends the SVPA violates the constitutional prohibitions
against ex post facto laws and double jeopardy.
Warren makes the claims to preserve them for
federal review, but acknowledges the California Supreme Court has rejected
those arguments in People v. McKee
(2010) 47 Cal.4th 1172 (McKee I), and we are bound by that case. (Auto Equity Sales, Inc. v.
Superior Court,
supra,
57 Cal.2d at p. 455.)
IV.
Warren
contends the indeterminate commitment term in the amended SVPA violates state and
federal guarantees of equal protection
because SVP's are treated differently from those offenders civilly committed
under the mentally disordered offender (MDO) statute (Pen. Code, § 2960 et
seq.) and the scheme for those found not guilty by reason of insanity
(NGI). (Pen. Code, § 1620 et seq.) Specifically, Warren challenges our ruling in
People v. McKee (2012) 207
Cal.App.4th 1325 (McKee II), arguing
this court "misunderstood and misapplied the strict scrutiny test."
in the position where it would find that McKee's equal protection rights had
not been violated, notwithstanding the strict scrutiny test, if there was
substantial evidence to support any reasonable inference that SVPs are in some
way more dangerous than MDOs or NGIs even if the inferences are ones that are
unlikely to be true. In effect, this
Court applied the rational basis test, not strict scrutiny." Warren argues it is not enough to show that
the Legislature or the voters could reasonably believe that SVP's are more
dangerous as a class than MDO's and NGI's.
The disparate treatment must still be necessary to protect society. Warren further argues that we "basically
ignored all the evidence presented by McKee and acted as if all the evidence
presented by prosecution was indisputably true."
A.
In
situated to other civilly committed persons, including MDO's and NGI's. The court recognized the amended SVPA was potentially unconstitutional in that similarly
situated involuntary civilly committed persons under other statutory commitment regimes are not treated the same way
as SVP's with regard to commitment terms and burdens of proof for release. (McKee
I, supra, 47 Cal.4th
at p. 1207.) The case was
remanded to the trial court for an evidentiary hearing to allow the People an
opportunity to justify the disparate treatment.
(Id. at pp. 1207-1211.)
During the
pendency of this appeal, we decided McKee
II, and affirmed the trial court's finding that the People had met their
burden to justify the disparate treatment of SVP's. We concluded the People had 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.' " (McKee II, supra, 207 Cal.App.4th at p. 1347.)
"Regardless of the shortcomings or inadequacy of the evidence on
actual sexual recidivism rates," the evidence "support[ed], by
itself, a reasonable inference or perception
that SVP's pose a higher risk of sexual reoffending than do MDO's or
NGI's." (Id. at p.
1342.) The California Supreme Court
denied review of McKee II, making our
ruling final.
B.
We applied
the correct standard of review in McKee
II, where we stated: "[W]e
review de novo the trial court's determination whether the Act, as amended by
Proposition 83, violates [McKee's]
equal protection rights. We
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 Act." (McKee
II, supra, 207 Cal.App.4th at p.
1338.) Warren criticizes our equal
protection analysis in McKee II,
claiming: "There are three elements
that are under attack in this equal protection challenge. First, the indeterminate commitment; second,
the shifting of the burden of proof of the Welfare and Institutions Code
section 6608 proceeding; and third, the elimination of the right to a jury
trial at the Section 6608 hearing. In
order for the California SVP Law to withstand equal protection strict scrutiny
analysis, each of these three elements must separately be found to be necessary
to serve a compelling governmental interest." Our colleagues in Division Three recently
rejected this claim.
" '[I]n strict scrutiny cases, the government must show
both a compelling state interest justifying the disparate treatment
necessary to further that compelling state interest. [Citations.]
We are unpersuaded . . . that Proposition 83
. . . was required to adopt the least restrictive means
available.' " (People v. McDonald (2013) 214 Cal.App.4th 1367, 1380, citing
Warren fails to explain how the
facts in his case are so different from those presented in McKee II as to warrant an individualized adjudication of his equal
protection claim. His unsupported arguments do not persuade
us to revisit our holding; therefore, we decline his request to remand the
matter for an evidentiary hearing.
DISPOSITION
The order
is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
name="_ftn1" title="">[1] All statutory references are to the Welfare and Institutions
Code unless otherwise stated.
name="_ftn2" title="">[2] We grant Warren's unopposed request to take judicial notice
of the trial court's statement of decision following remand proceedings. (Cal. Rules of Court, rule 8.252(a).)
