P. v. Willmes
Filed 7/25/13 P. v. Willmes 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opinion has not been certified for publication or ordered published for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.
HERBERT ANTHONY WILLMES,
Defendant and
Appellant.
H039082
(Santa Clara
County
Super. Ct. No. 211178)
In 2009,
defendant Herbert Anthony Willmes was committed for an indeterminate term to
the State Department of Mental Health (now State Department of State Hospitals;
hereafter the Department) after a jury found him to be a sexually violent
predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA;
Welf. & Inst. Code, § 6600 et seq.).
contending, inter alia, that an indeterminate term of commitment violates
Willmes for an indeterminate term and remanded the matter to the trial court
for reconsideration of his equal protection argument in light of
proceedings on remand in that case. (
suspend further proceedings in Willmes’s case pending finality of the
proceedings on remand in McKee I.
After
further trial court proceedings were held on remand in McKee I, the defendant appealed and Division One of the Fourth
Appellate District issued its opinion determining that
court’s finding that disparate treatment of SVP’s is warranted. (People
v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II), review denied Oct.
10, 2012, S204503.) On November 9, 2012, after the
California Supreme Court denied review of McKee
II, the trial court in the instant case again ordered Willmes committed to
the Department for an indeterminate term under the SVPA.
In the
present appeal, Willmes contends that a commitment for an indeterminate term
under the SVPA violates the equal protection clauses of the federal and state
Constitutions.
As we will
discuss, we conclude that Willmes’s equal protection claim lacks merit for the
reasons stated in McKee II. We will therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007,
the People filed a petition to commit Willmes under the SVPA. Willmes’s qualifying offense involved the
11-year-old daughter of his girlfriend.
In 1992, when Willmes was 19, the daughter reported to the police that
she and her mother had been living with Willmes. Willmes took showers with the daughter and
washed her breasts, vaginal area, and buttocks with his hands or a wash cloth
for such a long period of time that it became painful to her; bit her buttocks
leaving a mark that would last up to a week; inserted his finger in her rectum;
yelled at her to stand still or commanded her to spread her legs to facilitate
the contact; threatened to spank her if she did not stay in the shower; kept
her from leaving the shower; and had sexual intercourse in the shower with the
mother while the daughter was present.
Willmes was convicted of violating Penal Code section 288,
subdivision (a) as a result of his conduct with the daughter.
In August
2009, a jury found the petition alleging that Willmes was an SVP within the
meaning of section 6600 to be true. The
trial court thereafter filed an order committing Willmes to the Department for
appropriate treatment and confinement for an indeterminate term pursuant to
section 6604.
In his
prior appeal, Willmes contended, among other things, that an SVP is similarly
situated with a person committed as a mentally disordered offender (MDO;
Pen. Code, § 2960 et seq.) and a person found not guilty of a criminal
offense by reason of insanity (NGI; Pen. Code, § 1026), and that the
commitment of an SVP for an indeterminate term violates equal protection. This court reversed the judgment and remanded
the case to the trial court “for reconsideration of Willmes’s equal protection
argument in light of People v. McKee
(2010) 47 Cal.4th 1172, and the resolution of the proceedings on remand in that
case (id. at pp. 1208-1211),
including any proceedings in the Superior Court of San Diego County in which
McKee may be consolidated with related matters.†(Willmes,
supra, H034656, at p. 27.) This court further ordered the trial court to
“suspend further proceedings in this case pending finality of the proceedings
on remand in McKee. ‘Finality of the proceedings’ shall include
the finality of any subsequent appeal and any proceedings in the California
Supreme Court.†(Willmes, supra, H034656,
at p. 27.)
On November 9, 2012, after the
California Supreme Court denied review of McKee
II, the trial court in the instant matter again ordered Willmes committed
to the Department for an indeterminate term under the SVPA. Willmes filed a notice of appeal.
DISCUSSION
A.
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 SVPA
was amended twice in 2006. Prior to
those amendments, an individual determined to be an SVP was committed to the
custody of the Department for a two-year term.
The individual’s term of commitment could be extended for additional
two-year periods. (Former § 6604, as
amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by
Stats. 2000, ch. 420, § 4.)
On
September 20, 2006, the Governor signed into law Senate Bill 1128, which
amended the SVPA effective immediately.
(Stats. 2006, ch. 337, § 62.)
Among other changes, the amended SVPA provided for an indeterminate term
of commitment, and the references to two-year commitment terms and extended
commitments in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)
Less than
two months later, voters approved Proposition 83, which amended the SVPA
effective November 8, 2006. (See Cal.
Const., art. II, § 10, subd. (a).)
Like Senate Bill 1128, Proposition 83 amended the SVPA to provide that
an SVP’s commitment term is “indeterminate.â€
(§ 6604; see § 6604.1.)
Proposition 83 also eliminated all references to a two-year term of
commitment and most references to an extended commitment in sections 6604
and 6604.1. Thus, a person found to be
an SVP under the SVPA is now subject to an indeterminate term of involuntary
civil commitment. (People v. Whaley (2008) 160 Cal.App.4th 779, 785-787.)
B.
Protection
Willmes
contends that a commitment for an indeterminate term under the SVPA violates
the equal protection clauses of the federal and state Constitutions and that
the order committing him for an indeterminate term should be reversed. According to Willmes, in McKee I the California Supreme Court held that “the commitment
scheme under the amended SVP Act potentially violated equal protection because
SVP’s were treated more harshly than persons involuntarily committed under
similar commitment schemes, such as [MDO’s] and [NGI’s].†Willmes further argues that
found no equal protection violation, is “flawed†in several respects.
I
In
determined that SVP’s and MDO’s 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.†(
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 NGI’s 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 its burden of showing the
differential treatment of SVP’s is justified.â€
(McKee I, supra, 47 Cal.4th at p. 1207.)
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
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.)
II
On remand
in 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 independent review of the evidence 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 risk of sexual reoffending
than do MDO’s or NGI’s.†(
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.†(McKee II,
supra, 207 Cal.App.4th at p.
1341.) 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
“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,[
and that 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.â€
(McKee II,
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.]†(McKee
II, supra, 207 Cal.App.4th at
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 in McKee I are now final.
Willmes
urges this court to not follow McKee II because
the decision is “flawed in three respects.â€
The first error, according to Willmes, is that the McKee II court failed to properly conduct a de novo review of all
of the evidence presented by parties because the court ignored McKee’s evidence
and accepted the People’s evidence as accurate.
Second, Willmes argues that the McKee
II court misapplied the strict scrutiny test, because under that test, the
People had the burden of showing that SVP’s are actually more dangerous as
class, and therefore it was insufficient to show that that the legislature or
voters could reasonably believe that SVP’s were more dangerous as a class. Third, Willmes asserts that when the strict
scrutiny test is properly applied, the evidence presented by the People was not
sufficient to show that the disparate treatment of SVP’s is justified.
The People
contend that the California Supreme Court’s decision in McKee I and subsequent stay orders “demonstrate its intention that
state courts, upon finality of McKee [
conclusions on the equal protection claim in McKee II as binding, unless and until a higher court directs
otherwise.â€
We are not
convinced by Willmes’s argument that McKee
II was wrongly decided and should not be followed.
First, we
disagree with Willmes’s claim that the McKee
II court applied a deferential standard of review rather than an
independent standard of review. Willmes
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 also stated that it was determining
“whether the People presented substantial evidence to support a reasonable
inference or perception that the Act’s disparate treatment of SVP’s is
necessary to further compelling state interests. [Citations.]â€
(Id. at p. 1339.) 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. We also note that the First District
Court of Appeal rejected a similar challenge to McKee II, stating that
the “claim that the appellate court failed to independently review the trial
court’s determination is frivolous.†(People
v. McKnight (2012) 212 Cal.App.4th 860, 864.)
Second, we
reject Willmes’s claim that in McKee II
the People had the burden of showing that SVP’s are actually more dangerous as
class, and that the McKee II court
applied a rational basis test rather than a strict scrutiny test in reviewing
the evidence presented at the hearing.
The McKee II court clearly
understood that the strict scrutiny test required the government to “show both
a compelling state interest justifying the disparate treatment
necessary to further that compelling state interest. [Citations.]â€
(McKee II, supra, 207 Cal.App.4th at p. 1349.) Further, specific to the case before it, the
“whether the People presented substantial evidence to support a reasonable
inference or perception that the Act’s disparate treatment of SVP’s is
necessary to further compelling state interests. [Citations.]â€
(Id. at p. 1339.) The
appellate court’s use of the phrase “reasonable inference or perception†(
Court’s remand instructions in McKee I. In McKee I, the California Supreme Court stated, “[T]he government has not
yet shown that the special treatment of SVP’s is validly based on the degree of
danger reasonably perceived as to
that group, nor whether it arises from any medical or scientific evidence. On remand, the government will have an
opportunity to justify Proposition 83’s indefinite commitment provisions . . .
and demonstrate that they are based on a reasonable perception of
the unique dangers that SVP’s pose rather than a special stigma that SVP’s may
bear in the eyes of California’s electorate. [¶] .
. . 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.†(McKee I, supra, 47 Cal.4th at pp.
1210-1211, italics added, fn. omitted.)
Thus, in applying the strict scrutiny test, McKee II
followed the language set forth in McKee I.
In
purportedly misapplying the strict scrutiny test, Willmes also contends that
the McKee II court improperly
“rejected the need for the government†to “show that the disparate treatment of
SVP’s constituted the least restrictive means possible.†We are not persuaded by Willmes’s
contention. The McKee I court, quoting from Moye,
supra, 22 Cal.3d at page 465,
articulated the strict scrutiny test as follows: “ ‘the state must establish both that it
has a “compelling interest†which justifies the challenged procedure and that
the distinctions drawn by the procedure are necessary to further that
interest.’ †(McKee I, supra, 47
Cal.4th at pp. 1197-1198.) 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,
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
are not persuaded by Willmes’s contention that the evidence presented by the
People in McKee II was insufficient
to show that SVP’s were more dangerous than MDO’s and NGI’s and thus that harsher
treatment was necessary.
For
example, Willmes claims that the McKee II
court “acknowledged that the government had failed to show that SVP’s had a
higher sexual recidivism rate than MDO’s or NGI’s, but nevertheless concluded
that the evidence ‘supports, by itself, a reasonable inference or perception
that SVP’s pose a higher risk of
sexual reoffending than do MDO’s or NGI’s.’
(McKee II,
emphasis in original.)†In reaching this
inference, McKee II relied on evidence
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.
(McKee II,
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 II thus followed
Willmes
also claims that McKee II reached its
conclusion that victims of sexual abuse suffer greater trauma without any
evidence regarding the trauma caused by non-sex offenses. We disagree.
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.†(McKee II, supra, 207
Cal.App.4th at pp. 1342, 1343.)
Willmes
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 conclusion in McKee II
that harsher treatment of SVP’s was necessary.
We are not persuaded by Willmes’s argument. 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
factually based—not [that] they are incontrovertible or uncontroversial.†(McKee
I, supra, 47 Cal.4th at
pp. 1210-1211; accord, McKee II,
supra, 207 Cal.App.4th at p. 1348.)
Lastly,
Willmes 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 jury trial periodically,
and the shifting of the burden of proof.
Willmes argues that “[t]he 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 [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 Act is reasonable and factually based and was
adequately justified by the People at the evidentiary hearing on remand.†(McKee
II, supra, 207 Cal.App.4th at pp.
1347, 1348.)
Having
concluded for the reasons stated above that none of Willmes’s contentions on
appeal have merit, we will affirm the judgment.
DISPOSITION
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Welfare and Institutions Code
unless otherwise indicated.
name="_ftn2" title=""> [2]
By order of February 20, 2013, this court has taken judicial notice of the
opinion in defendant’s prior appeal, Willmes,
supra, H034656. Our summary of the factual and procedural
background includes some information that we have taken from the prior opinion.
