P. v. Watson

 

 

 

 

 

 

 

 

 

Filed 7/16/13  P. v. Watson A1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. WALTER WATSON,             Defendant and Appellant.

A135300         (San Francisco County       Super. Ct. No. 197031)

 

            Walter
Watson appeals from the judgment of the trial court,
following a jury trial, committing him to the custody of the href="http://www.fearnotlaw.com/">Department of Mental Health (DMH),
pursuant to provisions of the Sexually Violent Predator Act (SVPA), Welfare and
Institutions Code sections 6600 et seq.href="#_ftn1" name="_ftnref1" title="">>[1]

            Watson
contends that the trial court committed prejudicial error by instructing the
jury with a pinpoint instruction, at the People’s request, concerning the
definition of a “diagnosed medical condition.” 
We conclude that while it was error to instruct the jury with the
challenged instruction, such error was harmless.

            Watson
also contends that the SVPA violates a number of his href="http://www.mcmillanlaw.com/">constitutional rights.  We reject Watson’s constitutional challenges
to the SVPA because prior cases have already dealt with these challenges and
rejected them.

            We
affirm the judgment of the trial court.

 

BACKGROUND

            In
2006, Watson was sentenced to five years in state
prison following conviction of one count of an act of sexual intercourse
with a person, not his spouse, against that person’s will, by means of force,
violence and fear of immediate unlawful bodily injury on that person (Pen.
Code, § 261, subd. (a)(2)), and admission to two prior prison term enhancements
(Pen. Code, § 667.5, subd. (b)).

            Watson
was released on parole in December 2009, but was returned to custody in October
2010, after violating parole by possession of a pocket knife, a can of malt
liquor, and 0.1 gram of rock cocaine. 
Watson was remanded to state prison for 120 days for the violation. 

            The
Department of Corrections and
Rehabilitation requested screening reports for a possible DMH
recommendation that SVPA proceedings be commenced.  Drs. Jeremy Coles and Kathleen Longwell
assessed Watson and concluded that he met the statutory definition of a
sexually violent predator (SVP).  On
February 16, 2011, DMH recommended that SVPA proceedings be filed against
Watson.  On February 22, 2011, a petition
was filed against Watson requesting a probable cause hearing.  A hearing was held and, in October 2011, the
court found probable cause to believe that Watson met commitment criteria. 

            A
jury trial commenced on March 26, 2012, to determine whether Watson met the
commitment criteria.  Longwell testified
for the People and stated her diagnosis that Watson suffered from three mental
disorders:  paraphilia not otherwise
specified (paraphilia NOS), cocaine dependence in institutional remission or in
a controlled environment, and antisocial
personality disorder (APD).  She
stated her conclusion that these diagnoses predisposed Watson “to the
commission of sexually violent offenses, by impairing his emotional volitional
controls, rendering him a danger to the health and safety of others.”  Specifically, Longwell opined that Watson’s
sexual deviancy in combination with APD predisposed him to commit sex offenses. 

            Coles
also testified for the People and diagnosed Watson as suffering from APD, with
significant sexual deviation, cocaine dependence, and alcohol dependence.  He described APD as a disorder that is marked
by “an inability to conform to social norms with respect to lawful behavior.”  When Coles was asked whether APD in “Watson’s
case make[s] him likely that he be undeterred from criminal punishment, and
hence more likely to re-offend,” he answered in the affirmative.  Coles opined that because Watson’s
“particular [APD] has a very strong sexually aggressive component,” his
diagnosis carried “the qualifier with significant sexual deviation” and that
Watson was “predisposed to commission of sex crimes in addition to other
crimes.”

            Dr.
Edward Hyman testified for the defense. 
Hyman diagnosed Watson with APD and cocaine dependence in remission, but
did not believe that these disorders would contribute to a lessening of
Watson’s volitional control and would not contribute to the likelihood of
recommitting a sexual offense.

            Dr.
Garrett Essres also testified for the defense. 
Essres had first evaluated Watson in December 2009.  At that time, Essres’s diagnosis was that
Watson suffered from cocaine dependence, alcohol abuse, and APD.  Essres did not find that any of these
diagnoses would predispose Watson to sex offenses specifically.

            Essres
interviewed Watson again in January 2012. 
Essres did not believe that paraphilia NOS was an appropriate diagnosis
for Watson.  He believed that Watson’s
sex offenses reflected severe criminality, but not a sexual mental
disorder. 

            On
April 10, 2012, the jury found that Watson met the commitment criteria as an
SVP.  On April 11, 2012, the trial court
committed Watson to the custody of the DMH.

            Watson
filed a timely notice of appeal on
April 18, 2012.

>DISCUSSION

I.  Instruction on a Diagnosed Mental Disorder

            The
SVPA defines an SVP as “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.”  (§ 6600, subd. (a)(1).)  “ â€˜Diagnosed mental disorder’ includes a
congenital or acquired condition affecting the emotional or volitional capacity
that predisposes the person to the commission of criminal sexual acts in a
degree constituting the person a menace to the health and safety of
others.”  (§ 6600, subd. (c).)

            The
trial court instructed the jury with the standard SVP jury instruction, which
closely follows the statutory language: 
“The petition alleges that [Watson] is a sexually violent predator.  To prove this allegation, the People must
prove beyond a reasonable doubt that: 
[¶]  One, he has been convicted of
committing sexually violent offenses against one or more victims;  [¶] 
Two, he has a diagnosed mental disorder; 
[¶]  And three, 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 four, it is necessary to keep him in
custody in a secure facility to ensure the health and safety of others.  [¶] 
The term ‘a 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 predisposes 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 danger, that is a
serious and well-founded risk that the person will engage in such conduct if
released into the community.  The likelihood
that a person will engage in such conduct does not have to be greater than 50
percent.”  (See CALCRIM No. 3454.)

            Over
Watson’s objection, the trial court also gave a pinpoint instruction requested
by the People:  “Any current mental
illness which makes [Watson] unlikely to be deterred by the threat of criminal
punishment and hence likely to re-offend is a diagnosed mental disorder.”href="#_ftn2" name="_ftnref2" title="">[2]>

            Watson
contends that the pinpoint instruction was erroneous because “it >changed the definition of ‘diagnosed
mental disorder’ to exclude any connection to sexually violent conduct.  In doing so, the jury instruction lessened
the burden on the prosecution . . . .”  Watson claims that the alleged error violated
his due process rights and his right to a jury trial under the United States
Constitution and that the error was not harmless, beyond a reasonable
doubt. 

            We
conduct a de novo review of a claim that an instruction to the jury was in
error:  “Whether or not to give any
particular instruction in any particular case entails the resolution of a mixed
question of law and fact that, we believe, is however predominantly legal.  As such, it should be examined without
deference.”  (People v. Waidla (2000) 22 Cal.4th 690, 733.)

            If
we find that instructional error occurred, we may not reverse the judgment
unless we also find that the defendant was prejudiced by the error.  (See, e.g., People v. Lee (1987) 43 Cal.3d 666, 671.)  If the error rises to constitutional
dimension, amounting to a denial of the defendant’s due process rights, we
determine prejudice using the Chapman test:  prejudice arises unless the error was
harmless beyond a reasonable doubt.  (>Chapman v. California (1967) 386 U.S.
18, 24.)  Otherwise, we determine
prejudice using the Watson test:  prejudice arises if it is “reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.”  (>People v. Watson (1956) 46 Cal.2d 818,
836.)

            In
Kansas v. Hendricks (1997) 521 U.S.
346, 358 (Hendricks), the United
States Supreme Court, affirming a Kansas law for the href="http://www.fearnotlaw.com/">civil commitment of certain sexually
dangerous individuals, wrote:  “We have
sustained civil commitment statutes when they have coupled proof of
dangerousness with the proof of some additional factor, such as a ‘mental
illness’ or ‘mental abnormality.’ 
[Citations.]  These added
statutory requirements serve to limit involuntary civil confinement to those
who suffer from a volitional impairment rendering them dangerous beyond their
control.  The Kansas Act is plainly of a
kind with these other civil commitment statutes:  It requires a finding of future
dangerousness, and then links that finding to the existence of a ‘mental
abnormality’ or ‘personality disorder’ that makes it difficult, if not impossible,
for the person to control his dangerous behavior.”

            The
California Supreme Court has held that “[a]ccording to Hendricks, civil commitment is permissible as long as the
triggering condition consists of ‘a volitional impairment rendering [the
person] dangerous beyond their control.’ â€ 
(Hubbart v. Superior Court
(1999) 19 Cal.4th 1138, 1156.)  The >Hubbart court also noted that “[w]ith
the exception of nonsubstantive differences in grammar, the SVPA tracks the
Kansas scheme verbatim in describing the requisite mental disorder as a
‘congenital or acquired condition affecting the emotional or volitional
capacity that predisposes the person to the commission of criminal sexual acts
in a degree constituting the person a menace to the health and safety of others.’ â€  (Id.
at p. 1157.)

            “[T]he
words used by the Kansas and
California laws themselves inherently and
adequately convey the crucial class-restricting elements of future
dangerousness linked to a disorder-related inability to control behavior.  It necessarily follows that, if supported by
substantial evidence, any finding of eligibility for commitment under these
statutes, when made pursuant to the
statutory language itself, also meets constitutional standards.”  (People
v. Williams (2003) 31 Cal.4th 757, 769 (Williams).)

            The
People argue here that the pinpoint instruction at issue “simply clarified or
provided an additional definition of element 2—the ‘diagnosed mental
disorder.’ â€  However, despite the
language of section 6600, subdivision (c), which might invite other examples of
a “diagnosed mental disorder,” the statutory language is regarded by the
California Supreme Court as a definition, which conveys the concepts necessary
for the SVPA to satisfy due process requirements:  “California’s statute inherently >embraces and conveys the need for a
dangerous mental condition characterized by impairment of behavioral
control.  As we have seen, the SVPA
accomplishes this purpose by defining a sexually violent predator to include
the requirement of a diagnosed mental disorder (§ 6600, subd. (a)(1))
affecting the emotional or volitional capacity (id., subd. (c)), which predisposes one to commit criminal sexual
acts so as to render the person a menace to the health and safety of others (>ibid.), such that the person is ‘likely
[to] engage in sexually violent criminal behavior” (id., subd. (a)(1)).”  (>Williams, supra, 31 Cal.4th at p. 774.)

            Because
the statutory definition of “diagnosed mental disorder” plays such a central
role in guaranteeing the constitutionality of the SVPA, and because the
definition inherently and adequately conveys the required elements, any other
definition, unsanctioned by the Legislature, would be error if not backed by
solid judicial authority.  We find no
such authority for the People’s pinpoint instruction.

            The
People argue that the language of the pinpoint instruction was “taken directly”
from People v. Burris (2002) 102
Cal.App.4th 1096 (Burris).  In Burris,
the defendant argued that “reoffending impulsively or without considering the
consequences is distinguishable from reoffending due to lack of control.”  (Id.
at p. 1106.)  The Burris court disagreed and held that “a recidivist violent sexual
offender who, due to a mental disorder, is unlikely to be deterred by the risk
of criminal punishment lacks control in the requisite sense.”  (Id.
at pp. 1106-1107.)  The court concluded
that “there was sufficient evidence that defendant had a mental illness which
made him unlikely to be deterred by the threat of criminal punishment, and
hence likely to reoffend.  This amounted
to sufficient evidence of lack of control.” 
(Id. at pp. 1110-1111.)

            That
the instruction at issue was “taken directly” from Burris “certainly does not, as the [People argue], justify its use
as an instruction.”  (>People v. Hunter (2011) 202 Cal.App.4th
261, 277.)  The issue in >Burris was whether there was sufficient
evidence of lack of control, not the definition of “diagnosed mental
disorder.”  Burris had nothing to do with jury instructions.  We find in Burris no justification for an instruction that would subvert the
California Supreme Court’s observation that “California’s SVPA states >no category of committable disorder
which does not expressly require a
dangerous effect on emotional or volitional capacity.”  (Williams,
supra, 31 Cal.4th at p. 774.)

            We
conclude that it was error for the trial court to instruct the jury with the
prosecution’s pinpoint instruction.

            Watson
argues that “the essence of [his] defense was that his [APD] was something that
could not be treated under the SVPA as it was unrelated to sexually violent
behavior.”  It seems that Watson’s
argument is that he lacks volitional control, but that lack of control does not
have a sexual object or motivation. 
Thus, if the jury believed Hyman and Essres, rather than the People’s
experts, they could not find that Watson had a “diagnosed mental disorder”
under the definition contained in the SVPA because his APD did not predispose
him to commit sexually violent offenses. 
However, under the People’s pinpoint instruction, the connection of the
disorder to sexually violent offenses was removed and was replaced with
reoffense of an unspecified nature, so that the jury could find that Watson had
a “diagnosed mental disorder” even if they believed Hyman and Essres.

            The
problem with Watson’s argument is that it ignores the instruction that the jury
was required to find that “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.”  (See CALCRIM No. 3454.)  Nothing in the People’s pinpoint instruction
would work to change that requirement. 
Because the jury found this element to be true, it must have found a
causal connection between the diagnosed mental disorder and the likelihood that
Watson would engage in sexually violent criminal behavior and thus pose a
danger to others.  Accordingly, we must
conclude that Watson was not prejudiced, under any standard, by challenged
instruction.

II.  Equal Protection Challenge

            As
originally enacted, the SVPA provided for the involuntary civil commitment of
SVP’s for two-year terms of confinement and treatment.  (Stats. 1995, ch. 763, § 3, p. 5922; former §
6604.)  A commitment could not be
extended beyond a two-year term unless a new petition was filed requesting a
successive two-year commitment.  (Former
§§ 6604, 6400.1.)  In 2006, California
voters amended the SVPA by approving Proposition 83, entitled “The Sexual
Predator Punishment and Control Act: 
Jessica’s Law.”  (>People v. McKee (2010) 47 Cal.4th 1172,
1186 (McKee I); see Stats. 2006, vol.
1, p. A-299.)  “[U]nder Proposition 83,
an individual SVP’s commitment term is indeterminate, rather than for a
two-year term as in the previous version of the Act.  An SVP can only be released conditionally or
unconditionally if the DMH authorizes a petition for release and the state does
not oppose it or fails to prove beyond a reasonable doubt that the individual
still meets the definition of an SVP, or if the individual, petitioning the
court on his own, is able to bear the burden of proving by a preponderance of
the evidence that he is no longer an SVP. 
In other words, the method of petitioning the court for release and
proving fitness to be released, which under the former Act had been the way an
SVP could cut short his two-year commitment, now becomes the only means of
being released from an indefinite commitment when the DMH does not support
release.”  (McKee I, supra, 47
Cal.4th at pp. 1187-1188; see § 6604.)

            In
McKee I, defendant McKee attacked the
constitutionality of the amended SVPA on due process and equal protection
grounds.  (McKee I, supra, 47
Cal.4th at p. 1184.)  The court rejected
McKee’s due process arguments (id. at
p. 1194), but determined that SVP’s are similarly situated to mentally
disordered offenders (MDO’s), who may be committed under the Mentally
Disordered Offender Act (McKee I, at
p. 1203; Pen. Code, § 2960 et seq.). 
Because the terms of commitment for SVP’s are substantially less
favorable than those for MDO’s, the state must provide justification for the
differential treatment.  (>McKee I, at p. 1203.)  The court also found that SVP’s are similarly
situated to those committed after a finding of not guilty by reason of insanity
(NGI’s) and that, as with MDO’s, “the People have not yet carried their burden
of justifying the differences between the SVP and NGI commitment
statutes.”  (Id. at p. 1207.)  The case
was remanded to the trial court to determine whether the People could demonstrate
“the constitutional justification for imposing on SVP’s a greater burden than
is imposed on MDO’s and NGI’s in order to obtain release from commitment.”  (Id.
at pp. 1208-1209.)

            On
remand, the trial court held an evidentiary hearing, following which it issued
a statement of decision “finding the People had met their burden to establish,
by a preponderance of the evidence, that the disparate treatment of SVP’s under
the Act was based on a reasonable perception of the greater and unique dangers
they pose compared to MDO’s and NGI’s.” 
(People v. McKee (2012) 207
Cal.App.4th 1325, 1332, review den. Oct. 10, 2012, S204503 (>McKee II).)  On review, the appellate court affirmed the
finding of the trial court:  “We, like
the trial court, conclude the disparate treatment of the SVP’s under the Act is
reasonable and factually based and was adequately justified by the People at
the evidentiary hearing on remand. 
Accordingly, we conclude the Act does not violate McKee’s constitutional
equal protection rights.”  (>Id. at p. 1348.)  The Supreme Court denied review and >McKee II is now final.

            Watson
maintains that the SVPA violates the constitutional guarantee of equal
protection and that McKee II was
wrongly decided because the McKee >II court “improperly applied the strict
scrutiny standard applicable to equal protection claims in the civil commitment
context and erroneously concluded the State met its burden of justifying the
disparate treatment of SVP’s and similarly situated persons committed under two
of the State’s other civil commitment statutes.”  He asks this court for the remedy the
California Supreme Court granted in McKee
I—remand to the trial court to conduct a hearing to determine whether the
government can demonstrate the constitutional justification for differential
treatment of SVP’s as compared to MDO’s and NGI’s.

            Watson
bases his argument that the McKee II
court failed to properly conduct a proper analysis using the standard of strict
scrutiny on the basis of two isolated quotations from the court’s opinion.  We decline Watson’s invitation to reopen the
issue of whether the SVPA violates equal protection guarantees.  The Fourth District Court of Appeal examined >McKee II and concluded that it “applied
both the correct standard of appellate review and the equal protection strict
scrutiny standard.”  (>People v. McDonald (2013) 214
Cal.App.4th 1367, 1371.)  This district
has followed the holding of McKee II
and agreed with its equal protection analysis. 
(People v. McKnight (2012) 212
Cal.App.4th 860, 863.)  Watson does not
provide a compelling reason for us to reach a different conclusion.

            Watson
also maintains, to preserve the issue for federal review, that the
indeterminate commitment and conditional release provisions of the SVPA violate
his right to due process.  We reject this
contention because, as Watson acknowledges, McKee
I determined that the SVPA does not
violate due process rights and we are bound by that holding.

            Also
for the purpose of preserving the issues for federal review, Watson contends
that commitment for an indeterminate term violates “the federal constitutional
prohibition against ex post facto laws [citation], the federal constitutional
prohibition against double jeopardy [citation], and the federal constitutional
proscription against cruel and unusual punishment [citation].”  Because McKee
I held that the SVPA is civil in
nature and does not amount to punishment, we must reject these constitutional
challenges to the SVPA.  (>McKee I, supra, 47 Cal.4th at pp. 1194-1195.)

>DISPOSITION

            The
judgment of the trial court is affirmed.

 

 

                                                                                    _________________________

                                                                                    Lambden,
J.

 

 

We concur:

 

 

_________________________

Haerle, Acting P.J.

 

 

_________________________

Richman, J.

 

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