P. v. Clark

Filed 8/21/08 P. v. Clark CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury found appellant to be a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et. seq. and the trial court committed him to the Department of Mental Health for an indeterminate term. On appeal, he challenges the constitutionality of the statutory commitment scheme on numerous grounds and the retroactive application of the scheme. He further contends that the trial court erred in instructing the jury. We affirm.

Background

On January 25, 2006, the Monterey County District Attorney filed a petition to commit appellant to the Department of Mental Health as an SVP pursuant to the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6604 et seq.,[1] for a two year term. On March 10, 2006, appellant waived his probable cause hearing on the petition. Defense counsel requested a continuance and the matter was set for trial. A series of continuances ensued and the case was set for jury trial on November 27, 2006.

On September 25, 2006, the prosecutor filed an amended petition asking the court to commit appellant for an indeterminate term. Further continuances were granted for the taking of appellant's deposition and his jury trial began February 5, 2007.

Dana Putnam, a clinical and forensic psychologist, testified that he had a contract with the state of California "to do sexually violent predator evaluations." He interviewed appellant in December 2005 and reviewed materials in appellant's Department of Mental Health file and prison file. In 1976 appellant was arrested for battery on his wife, and "they found in his wallet pictures that were of a child's naked body. . . . His wife identified those pictures as being her little sister." Further investigation revealed that appellant had had extensive sexual contact with this girl when she was seven to nine years old. Appellant was convicted on one count of violating Penal Code section 288, subdivision (a) and he was sent to Atascadero State Hospital as a mentally disordered sex offender. Appellant was thereafter placed on probation and "he had one year free of supervision before he started molesting again in Monterey County in 1985." Appellant molested the approximately six-year-old daughter of a woman with whom he was living by "touch[ing] her vagina numerous times while she was taking a bath and he was babysitting her."

Appellant molested a baby, the granddaughter of the woman he was living with, between January 1986 and June 1987. He also took pictures of himself touching her vagina with his fingers and a laundry marker and pressing his penis to her vagina and anal areas. He photographed her posed with her legs spread. Appellant then moved in with another woman and rubbed the stomach and touched the breast of her 12-year-old daughter.

In his interview with Putnam, appellant admitted "quite a bit" of this conduct but "his version was that it was less extensive and not to the degree indicated by the reports." In Putnam's opinion, appellant "had a diagnosis of pedophilia with a specific interest in girls." Putnam evaluated appellant using the Hare Psychopathy Checklist and found appellant "to be in the moderate degree of psychopathy which is not at a level that is typically associated with an increase in sexual recidivism but it is of a level indicating some psychopathic characteristics." Putnam also used the Static 99, an actuarial tool used to "assess risk for sexual recidivism," to evaluate appellant. Appellant's score was four, which, Putnam said, "puts him in the moderate to high risk level." Putnam testified that this score is "associated with a reconviction rate in 5 years of 26 percent. If you go out to 15 years, it has a 36 percent reconviction rate which is of course different than whether or not somebody will do it again."

Putnam considered appellant to be sexually preoccupied with children and "mixed up love and sex" with the children resulting in an emotional connection. Although appellant had not molested any children since he was put in prison in 1988, Putnam still considered appellant a pedophile who was likely to reoffend. Putnam did acknowledge, "It's possible for somebody to have sexual contact with a child and not have the drive to repeatedly engage in sexual behavior with children."

Appellant testified that he had been convicted of 16 counts of violating Penal Code section 288, subdivision (a). He is five foot ten and a half inches tall and weighed about 250 pounds when he was molesting children. He dropped out of high school when he was 18 and obtained his GED at Atascadero. He had spent 18 years in prison. Appellant testified that if he were released he would continue with any court-ordered program and seek a program on his own. He would "find any job I could and work digging ditches to hamburgers." While in prison, appellant participated in many groups including the Victim-Offender Reconciliation Group. He participated in a Men Are From Mars, Women are From Venus group, a conflict confrontation group, a psycho drama class, a Family Secrets class, and a spiritual 12-step program. He facilitated an anger management program and created a manual for it. He was a member of the executive council for Personal Growth Seminars. He worked as a cook and had several letters of appreciation from groups for whom he had prepared banquets.

The first time appellant molested the first victim her mother had asked him to check the child for ringworm while the girl was bathing. After he was sent to Atascadero as a mentally disordered sex offender, he was placed on probation. He moved in with another woman and had a sexual relationship with her. He molested her child because the child was "an easy victim." He said, "I wasn't purposefully looking to molest the child. I felt that again, I was victimizing. I was thinking of myself and I chose to use her as a release." He was sexually aroused when he touched the baby's private parts with the laundry marker. He molested his next victim when he was asked to check her for chicken pox. After he moved out, he kept the photographs of one victim with no clothes on in a box in his bedroom.

Appellant testified that he chose to do the sexual acts with children and "when I chose not to do it, I didn't do it." When asked if he had ever tried to stop himself from molesting, he said, "There were times that I didn't think about it and I didn't molest her and it wasn't a thing of not having to think about doing just it was not a feeling or I didn't have an urge. I just didn't do it. I could look at a victim and still not do it. I could still walk away. It was a choice." He said, "Of my victims, it was not like I ran around all the time wanting to have sex. Just it wasn't like that every time I looked at them that I have this urge to do it . . . . I have a choice of thoughts I want to dwell on." Appellant said, "A lot of times if I molested, I was I felt that I was under stress and if there was no stress or anything, you know, I didn't have the urge." He was "very remorseful" now about these acts because he had learned to "put a human face to a victim." Appellant acknowledged that recently he had begun to correspond with a woman in Oakland and had ended one letter to her with "Give a hug to your little one."

Robert Halon testified that he was a psychologist whose practice was now "almost entirely in forensic psychology."[2] He had interviewed appellant, administered tests, and reviewed materials concerning him. He said that when he evaluated appellant, "I was looking for evidence of a sexual psychopathology that might serve as the predisposing condition to committing sexually violent offenses and looking for psychiatrist [sic] psychopathology in relationship to that predisposition which would effectively erode his self control to the point that he'd have serious difficulty preventing himself from behaving in harmony with the predisposition so I'm really looking for two conditions." He testified, "Psychology and psychiatry don't even agree on whether there is such a thing as volition. . . . and I use self control as kind of a substitute concept for volition." Halon said, "[S]ince Mr. Clark has been imprisoned arrested, there is no evidence anywheres [sic] that he has been out of control of his sexual expressions." He said that appellant was impulsive, oppositional, manipulative, and hedonistic, but that he did not "see any evidence" that appellant could not control his behavior. Halon testified, "What you're seeing here is a criminal pedophile, not a mentally disordered one." He was of the opinion, however, that appellant "enjoyed having sex with female children." Halon testified that the Static 99 will "over predict immensely" on recidivism.

Theodore Donaldson testified that he was a psychologist who had interviewed appellant and had reviewed materials to determine if appellant met the requirements for commitment under the SVPA. He said that there was "insufficient evidence" that appellant currently suffered from pedophilia. He said that he could not find convincing evidence that appellant had strong fantasies that compelled him to molest and said "much of his behavior could just have easily been viewed as opportunistic." He said that appellant had not "had any signs or symptoms consistent with pedophilia since 1987," when his last offense was committed. While in custody, true pedophiles try to collect child pornography, cut out children's underwear ads from magazines, or watch children's programs on television. Donaldson testified that as to the prong of the definition of an SVP regarding serious difficulty controlling behavior, "He hasn't had any difficulty at all controlling his behavior in 20 years." Donaldson was asked whether appellant had learned anything from the consequences of his actions that led to his commitment as a mentally disordered sex offender and four years at Atascadero. Donaldson said that "it seemed that he had learned from his first experience that you can't actually have sex with kids but it's okay to do other things as long as you don't penetrate with your penis so he did learn something. He didn't learn very much."

Thomas MacSpeiden testified as a rebuttal witness that he was a clinical psychologist who accepted appointments from the Department of Mental Health to do SVP evaluations. He said that "more times than not" when he evaluates someone he finds that that person does not meet the criteria of an SVP. He said that appellant lacked insight into his problem and that the treatment he had received would not reduce pedophiliac behavior. He said that if appellant were released without the proper treatment, there "would be danger to children" in that "he will reoffend by becoming involved with an age peer female who in some way has access to children." He testified that the fact that 20 years had passed without appellant having access to a child or possessing pictures of children was insignificant because, "Once a pedophile, always a pedophile."

At the conclusion of the trial, the prosecutor argued that appellant had not learned "not to do it again" because "he thinks he doesn't have a problem. He thinks, well, he chooses to molest children." She said, "Likely, not a mere possibility but not a precise determination that the chance of reoffense is better than any. A bookie in Las Vegas wouldn't take this one. You can bet on this one. [] He's going to do it again if you give him the chance . . . ." Defense counsel argued that "both Doctors Halon and Donaldson discuss that there's no current evidence [appellant] can't control his behavior. The behavior he did was a choice. We're letting him off the hook if we say it's not a choice." He argued that taking various assessments of the Static 99 test into account, appellant "has a 82 percent chance of not recidivating." He said that the jury had been given "a lot of contesting views on the state of the science" and that if a juror thought "I don't know what's going on. I don't know if he is or not. I don't know what to think" then the case had not been proved beyond a reasonable doubt.

One hour after retiring to deliberate, the jury returned a verdict finding appellant to be an SVP. The trial court committed appellant to the Department of Mental Health for an indeterminate term.

Discussion[3]

The SVPA

The SVPA, as originally enacted effective January 1, 1996 (Stats. 1995, ch. 763,  3), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, in a unanimous jury verdict after trial (former 6603, subd. (d), 6604), are found beyond a reasonable doubt to be SVPs (former 6604). (People v. Williams (2003) 31 Cal.4th 757, 764; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143, 1147.) A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. (Former 6604, 6604.1.) On filing of that petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former 6604, 6605, subds. (d), (e).)

As originally enacted, an SVP was defined as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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." (Former 6600, subd. (a).) A "sexually violent offense" includes a Penal Code section 288 lewd act on a child under age 14. (Former 6600, subd. (b).) Under the Act, a person is "likely" to engage in sexually violent criminal behavior (i.e., reoffend) if he or she "presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) The SVPA is "designed to ensure that the committed person does not 'remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.' [Citation.]" (Hubbart, supra, 19 Cal.4th at p. 1177.) The SVPA "therefore provides two ways a defendant can obtain review of his or her current mental condition to determine if civil confinement is still necessary. [First,] [s]ection 6608 permits a defendant to petition for conditional release to a community treatment program. . . .  [Second,] [s]ection 6605 [requires] an annual review of a defendant's mental status that may lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)

Pursuant to the amendments described above, former "section 6604 was amended to eliminate the two-year [commitment] term provision and to provide for an indeterminate term of confinement (subject to the SVP's right to petition for release). [Citations.]" (People v. Shields (2007) 155 Cal.App.4th 559, 562.) Section 6604 of the Act now provides: ". . . . If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement . . . ." (Italics added.) The 2006 amendments did not change section 6604's requirement that a person's commitment as an SVP be proved at trial beyond a reasonable doubt. ( 6604.) As before the 2006 amendments, section 6605 continues to require current examinations of a committed SVP at least once every year. ( 6605, subd. (a).)

The 2006 amendments added new provisions to section 6605 regarding the DMH's obligations: "(a) . . . The annual report [following a current examination] shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community. The [DMH] shall file this periodic report with the court that committed the person under this article. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person. The person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person. [] (b) If the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney, or the committed person." (Italics added to indicate language retained from original Act.)

If the DMH determines a person is no longer an SVP, it is required to authorize that person to file a petition for unconditional release or discharge. ( 6605, subd. (b).) The 2006 amendments did not amend the provisions regarding the court's consideration of that petition for release. If, at a show cause hearing on that petition, the trial court determines there is probable cause to believe the person's mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, the court must set an evidentiary hearing (i.e., a trial) on the issue. ( 6605, subd. (c).) Furthermore, section 6605, subdivision (d), continues to provide (without amendment): "At the [evidentiary] hearing, the committed person shall have the right to be present and shall be entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding. . . . The committed person also shall have the right to demand a jury trial and to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." If the court or jury finds in the committed person's favor, the person shall be unconditionally released and discharged. ( 6605, subd. (e).)

If the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608 without the DMH's authorization in the same manner as before the 2006 amendments of the Act. ( 6608, subd. (a) ["Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release or an unconditional discharge without the recommendation or concurrence of the [DMH] . . ."]; People v. Cheek, supra, 25 Cal.4th at p. 902 ["Section 6608, which provides for conditional release to a community treatment program, does not mention section 6605, and permits a defendant to be unconditionally released only after the defendant has spent a year in a conditional release program"].) Section 6608, subdivision (i), was not amended and continues to provide that on a committed person's section 6608 petition for conditional release: "In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence." (Italics added.) After a trial court denies a section 6608 petition, "the person may not file a new application until one year has elapsed from the date of the denial." ( 6608, subd. (h).)

Because in 2006 the Legislature and California voters amended section 6604 to make an SVP's term of commitment indeterminate (rather than two years), a committed person now, in effect, "remains in custody until he successfully bears the burden of proving he is no longer an SVP or the [DMH] determines he no longer meets the definition of an SVP. [Citations.]" (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.)

Retroactivity

Appellant contends "The trial court erred in applying the revisions to the SVPA retroactively to appellant's case." He argues that "the requirement that SVP defendants serve indeterminate terms cannot be applied to cases in which the petition was filed prior to the effective date of SB 1128." We disagree.

Bourquez, supra, 156 Cal.App.4th at pages 1283-1289,and People v. Carroll (2007) 158 Cal.App.4th 503, 508-510, 512-515, hold contrary to appellant's position on this issue. Appellant argues that the new version of the SVPA was retroactively applied to him because "the evaluations of the two psychologists whose conclusions were that appellant fit the description of a SVP were both done more than a year prior to trial." Because section 6605 requires an annual review of an SVP's mental status, and this annual report is also part of Proposition 83, "it is perfectly clear the Legislature and the voters who passed Proposition 83 recognized that an evaluation that was more than a year old [w]as not 'current' within the meaning of the SVP Act." However, the significant event in any SVP hearing is the adjudication of an individual as an SVP. (Carroll, supra, 158 Cal.App.4that p. 513 [each extension or recommitment hearing under former statute was new and independent proceeding requiring new determination of SVP status]; see also Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1170 [trial on any petition for commitment or recommitment focused on person's current mental condition].) A recommitment proceeding occurring under the new statutory provisions does not constitute retroactive application of the changes so long as the adjudication and the indeterminate commitment occur, as they did here, after the amendments became effective. (Carroll, supra, 158 Cal.App.4th at p. 513.)

Due Process

Appellant contends that his commitment as an SVP violates due process.[4] "[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]" (Addington v. Texas (1979) 441 U.S. 418, 425 [99 S.Ct. 1804].)

Appellant contends, "Appellant's indeterminate commitment under the revised act violates the due process clause of the Fourteenth Amendment because the revised statute fails to provide for mandatory periodic hearings on the issue of whether continued commitment is warranted." Appellant cites Foucha v. Louisiana (1992) 504 U.S. 71 (112 S.Ct. 1780). In Foucha, the Court considered the constitutionality of a Louisiana statute providing for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were dangerous, but not mentally ill. The trial court found that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis and that he was in "good shape" mentally. (Id. at p. 75.) There was further testimony that antisocial personality disorder is a "disorder for which there is no effective treatment." (Id. at p. 82.) The court struck down the law, concluding that it violated due process because the acquittee no longer met the dual constitutional prerequisites of dangerousness and mental illness.

The court acknowledged its prior holding in Addington that a state may not civilly commit a person unless it shows by clear and convincing evidence that the person is mentally ill (e.g., insane) and dangerous. (Foucha, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) Foucha also acknowledged its holding in Jones v. United States (1983) 463 U.S. 354 (103 S.Ct. 3043), that a person found not guilty by reason of insanity may be automatically confined without a separate hearing to determine his or her current mental illness or dangerousness because the verdict is presumed to have shown those requirements, but that an insanity acquittee is entitled to release when he or she is no longer mentally ill or dangerous. (Id., at pp. 76-78, citing Jones, at pp. 363, 368, 370.) Because the evidence presented at a review hearing showed the insanity acquittee in Foucha was not currently mentally ill, the court concluded his continued confinement violated his constitutional right to due process. (Foucha,supra, 504 U.S. at p. 79.) Because at appellant's SVP commitment trial his mental illness and dangerousness were proved beyond a reasonable doubt, Foucha does not support appellant's assertion that his civil commitment to the DMH for an indeterminate term (subject to potential petitions for release pursuant to sections 6605 and 6608) violated his federal constitutional right to due process. Foucha did not address periodic commitment review hearings at which the committed person has the burden to prove by a preponderance of the evidence that he or she is entitled to release because no longer mentally ill or dangerous.

Appellant further contends, "Appellant's indeterminate commitment under the revised statute violates the due process clause of the Fourteenth Amendment because the revised statute improperly places the burden of proof on the appellant to prove he should be released." We read Foucha as prohibiting continued confinement of persons who are no longer mentally ill. Foucha does not specifically address the burden of proof required at future release hearings, and thus does not support appellant's due process challenge of section 6608's provision placing the burden on him to prove by a preponderance of the evidence that he is entitled to release because he is no longer mentally ill or dangerous. Foucha does not require that the People bear the burden at any future section 6608 release hearing to prove by clear and convincing evidence that appellant currently is mentally ill and dangerous. We conclude that the SVPA, as amended in 2006, does not violate appellant's federal constitutional right to due process.

Appellant argues that "the indefinite commitment imposed under the revised SVPA improperly and irrationally presumes that once a person is diagnosed with a qualifying mental disorder that such disorder will continue indefinitely." He argues, "The revised SVPA creates an unacceptable risk that an SVP detainee who no longer qualifies as a sexually violent predator will have his commitment continued in violation of his right to due process." Appellant cites Foucha and O'Connor v. Donaldson (1975) 422 U.S. 563 (95 S.Ct. 2486).

In O'Connor, the defendant, a former mental patient, brought an action for damages alleging that his involuntary civil commitment constituted a violation of his constitutional right to liberty. He had been civilly committed to confinement in Florida state hospital, and held against his will for 15 years, on the ground he was suffering from paranoid schizophrenia. (O'Connor, supra, 422 U.S. at pp. 564-565.) He had received no treatment for his illness during confinement, and no claim was ever made that he posed a danger to society. The jury found he was neither dangerous to himself nor dangerous to others. (Id. at p. 573.) Upholding an award of damages, the O'Connor court held as a matter of due process that it was unconstitutional for a state to continue to confine a harmless, mentally ill person. The court said that "there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom." (Id. at p. 575.)

We consider the initial commitment hearing itself to provide a significant level of due process protection, requiring a finding beyond a reasonable doubt that appellant had qualifying criminal conduct and is both mentally ill and dangerous. The required periodic reviews of appellant's mental health status and the petition for release procedures minimize the risk of erroneous deprivation. This is sufficient to comport with due process.

Ex Post Facto and Double Jeopardy

Appellant contends, "Appellant's indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature and violates the ex post facto clause." Appellant further contends, "Appellant's indeterminate commitment violates the double jeopardy clause of the Fifth Amendment." Appellant argues, "[A]ppellant was already tried, convicted, and sentenced to state prison for his sexual offenses. Thus, any further punishment for these same offenses is a clear violation of the Double Jeopardy clause."

Appellant acknowledges that the United States Supreme Court has rejected such a challenge to both the Kansas Sexually Violent Predator Act and Alaska's sex offender registration law because these laws were civil, not criminal, and therefore not punitive. (Kansas v. Hendricks (1997) 521 U. S. 346, 361-363 [117 S.Ct. 2072], Smith v. Doe (2003) 538 U. S. 84, 101-102 [123 S.Ct. 1140].) Appellant argues, however, that the "punitive purpose of the indefinite commitment period in the revised California statute is evident from the scope of the reforms embodied in both SB 1128 and Proposition 83."

A commitment under the SVPA is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179 [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [110 S.Ct. 2715] [ex post facto clause prohibits only those laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts"].) The analysis in this case is not dependent on the term of civil commitment, but on the intent and effect of the statute authorizing it. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171.) Hubbart observed that, "the critical factor is whether the duration of confinement is 'linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.' [Citation.]" (Id. at p. 1176.)

Appellant argues that the broad scope of Senate Bill 1128, and subsequently Proposition 83, was intended to increase punishment of sexual offenders and, therefore, the SVPA has now become punitive in purpose. Any Penal Code amendments made by Senate Bill 1128 or Proposition 83 increasing the punishment for various sex offenses have little, if any, relevance to the purpose or effect of the amendments to the Welfare and Institutions Code regarding civil commitments of SVPs. The indeterminate term under California's SVPA is "linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others." (Kansas v. Hendricks, supra, 521 U.S. at p. 363.) This is "a legitimate nonpunitive governmental objective and has been historically so regarded." (Ibid.) There is nothing in the legislative history that suggests Senate Bill 1128 or Proposition 83 were intended to do anything other than make the SVPA a more effective civil scheme to protect the public from a small group of exceedingly dangerous individuals. Therefore, it violates neither the ex post facto clause nor the double jeopardy clause.

Equal Protection

Appellant contends, "Appellant's indeterminate commitment with limited judicial review of his custodial status violates the equal protection clause of the Fourteenth Amendment."

Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised here. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDOs and SVPs are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart, supra, 88 Cal.App.4th at pp. 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVPs and criminal defendants are not similarly situated, thus no equal protection violation].) Additionally, the Ninth Circuit has held that California's statutory scheme for treatment of SVPs does not violate equal protection. (Hubbart v. Knapp (9th Cir.2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].) We agree with the cited authority and reject appellant's equal protection claim.

Cruel and Unusual Punishment

Appellant contends, "Appellant's indeterminate commitment violates the prohibition against cruel and unusual punishment under the California Constitution and the Eight and Fourteenth Amendments to the federal Constitution." This is premised on the argument that an SVP commitment imposes criminal penalties. However, a commitment under the SVPA is not punitive in purpose or effect. (Hubbart v. Superior Court,supra, 19 Cal.4th at pp. 1175-1179; see also Kansas v. Hendricks, supra, 521 U.S. at pp. 362, 369 [confinement pursuant to similar Kansas Act not punitive].) Thus, constitutional proscriptions against cruel and unusual punishment do not apply. (People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.) Furthermore, an SVPA commitment is a civil commitment for treatment and the protection of society. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1171-1174; Kansas v. Hendricks, supra, 521 U.S. at pp. 361-363.) The civil commitment is not based on an individual's status as a sex offender. Conviction of an enumerated sexually violent offense "shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination." ( 6600, subd. (a)(3).) It must also be established that the person 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." (Ibid.) We conclude that the SVPA does not inflict cruel and/or unusual punishment based on an individual's status as a sex offender. Appellant was found eligible for commitment to the Department of Mental Health not simply because of his past predicate offenses, but because the jury found he suffered from a current mental disorder and was currently likely to reoffend as a predator. Thus, appellant's cruel and unusual punishment argument fails.[5]

Right to Petition for Redress of Grievances

Appellant contends, "the limitations placed on appellant's right to petition the court for release under the revised version of the SVPA violates his First Amendment right to petition the courts for redress of grievances." Although acknowledging that section 6608, subdivision (a) gives the SVP detainee the right to counsel when petitioning the court for release, appellant argues that the failure to include a provision for the appointment of a medical expert denies the detainee "the tools he needs to make the access meaningful." However, although section 6608 does not expressly provide for the appointment of an expert, section 6605, subdivision (a) requires the department to report on a committed SVP's mental condition annually. That statute also provides that "[t]he person may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person." (Ibid.) Thus, if the department concludes in its annual report that the committed person remains an SVP, that person can request the appointment of his or her own expert to review that determination. If the appointed expert concludes otherwise, then the expert's testimony could be used to support a petition for discharge under section 6608.

Appellant further argues, "An SVP detainee does not receive meaningful access to the courts when the State can perpetually incarcerate him without ever being required to prove during a hearing on the merits in court the necessity for the continued incarceration." The burden placed on SVPs to prove the allegations of their petition by a preponderance of evidence does not limit access to the courts in any way; this is the standard imposed in the majority of civil actions. Furthermore, a committed person always has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405.)

Single Subject Rule

Appellant contends, "Proposition 83 violated the single subject rule applicable to ballot initiatives." Article II, section 8, subdivision (d), of the California Constitution provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect."

An initiative does not violate the single-subject requirement if all of its parts are reasonably germane to each other and to the general objective of the initiative. (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157.) Proposition 83 addressed a number of civil and criminal statutes, all related to the punishment and control of sexual predators. The proposition (1) expanded the definition of specified sex offenses; (2) increased the penalties for certain sex offenses; (3) prohibited probation for listed sex offenses; (4) eliminated custody credits for some sex offenses; (5) extended the parole period for particular sex offenses; (6) required monitoring by global positioning satellites for registered sex offenders; (7) barred registered offenders from living within 2,000 feet of a school or park; and (8) made the changes discussed here to the SVPA. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), text of Prop. 83.) The initiative measure was known as "The Sexual Predator Punishment and Control Act: Jessica's Law." (Carroll, supra, 158 Cal.App.4th at p. 509, fn. 3; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov.8, 2006).) The stated purpose of Proposition 83 was to " 'strengthen and improve the laws that punish and control sexual offenders.' " (Bourquez, supra, 156 Cal.App.4th at p. 1282; see Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2008 supp.) foll. 6604, p. 134; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff.Nov.8, 2006).) We believe that all of the component parts of Proposition 83 bear a reasonable relationship to this purpose.

Appellant argues, "Proposition 83 fails the above test because it combined too many disparate topics without a common purpose under a broad and amorphous theme of dealing with sex offenders. In this regard, the proposition included provisions modifying civil, criminal and regulatory matters." However, as the California Supreme Court has explained, "the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose." (Legislature v. Eu (1991) 54 Cal.3d 492, 513 [upholding Prop. 140 which combined in single measure such disparate subjects as term and budgetary limitations and pension restrictions].) In addition, the rule does not require that the collateral parts of an initiative be equivalent, for example, all civil, all criminal, all substantive, or all procedural. Nor does it mandate that the collateral parts be tied directly in application, for example, found in a single statute or applicable in a single proceeding. The only requirement is that the provisions work together to further the initiative's stated purpose. (See, e.g., Raven v. Deukmejian (1990) 52 Cal.3d 336, 347 and Brosnahan v. Brown (1982) 32 Cal.3d 236, 247.)

The SVP component of Proposition 83 may be civil in nature, but it is not unrelated to the criminal justice purpose stated as the goal of the initiative. The necessary reasonable and common-sense relationship is present. Proposition 83 does not violate the single subject rule.[6]

Jury Instructions

Appellant contends, "the trial court violated appellant's due process rights and right to a fair trial by failing to instruct the jury that to prove the appellant was 'likely' to engage in acts of sexual violence the prosecution must prove that he presented a 'substantial' danger of committing sexually violent predatory crimes if released from custody." Appellant argues, "By omitting the element of 'substantial' danger, this jury instruction violated the logic behind drawing the line for involuntary commitment for mental disorders that make it difficult, if not impossible, to control behavior, as Hendricks [supra] and [Kansas v.] Crane [(2002) 534 U.S. 407] did."

In Hendricks, supra, 521 U.S. 346, the court held, in analyzing the commitment provisions of the Sexually Violent Predator Act (SVPA) of Kansas (Kan. Stat. Ann. 59-29a01 et seq.) that "A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. 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 .' " (Id. at p. 358.) "These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control." (Ibid.)

In the subsequent case of Kansas v. Crane (2002) 534 U.S. 407 (122 S.Ct. 867) (Crane), the court again addressed the Kansas SVPA. In Crane the court rejected the civilly committed sex offender's argument that Kansas v. Hendricks, supra, 521 U.S. 346, requires total or complete lack of control in order for civil commitment. The court did, however, require some lack-of-control determination, in order to maintain a distinction between a "dangerous sexual offender subject to civil commitment from 'other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings,' . . . . lest 'civil commitment' become a 'mechanism for retribution or general deterrence' . . . . [Citation.]" (Crane, supra, 534 U.S. at p. 412.) The court clarified that a civil commitment statute must include a requirement of "proof of serious difficulty in controlling behavior." (Id. at p. 413.)

After Crane, our Supreme Court in People v.Williams (2003) 31 Cal.4th 757, applied the due process standard established in Crane, supra, to the SVPA. The defendant in Williams contended that his commitment was invalid because the statutory language of the SVPA did not include the federal constitutional requirement of proof of a mental disorder that causes "serious difficulty in controlling behavior" (Crane,supra, 534 U.S.at p. 413) and the jury was not specifically instructed on the need to find such impairment of control. (Williams, supra, 31 Cal.4th at p. 764.) The Supreme Court rejected this argument. The Williams court recognized that "[T]he safeguards of personal liberty embodied in the due process guaranty of the federal Constitution prohibit the involuntary confinement of persons on the basis that they are dangerously disordered without 'proof [that they have] serious difficulty in controlling [their dangerous] behavior.' " (Williams, supra, 31 Cal.4th at p. 759, quoting Crane, supra, 534 U.S. at p. 413.) However, the court held that "[b]y its express terms, the SVPA limits persons eligible for commitment to those few who have already been convicted of violent sexual offenses against multiple victims [citation], and who have 'diagnosed mental disorder[s]' [citation] 'affecting the emotional or volitional capacity' [citation] that 'predispose[ ] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others' [citation], such that they are 'likely [to] engage in sexually violent criminal behavior' [citation]. This language 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 court concluded that because the jury instructions tracked the statutory language, including the SVPA's definition of a "diagnosed mental disorder," no additional instruction was necessary. (Ibid.)

The trial court here instructed the jury as follows: "The petition alleges that Mark Arnold Clark is a sexually violent predator. To prove this allegation, the People must prove beyond a reasonable doubt that he has been convicted of committing sexually violent offenses against two or more victims, he has a diagnosed mental disorder and as a result of that diagnosed mental disorder, he is a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior. A person is likely to engage in sexually violent predatory criminal behavior if there is a serious and well founded risk that the person will engage in such conduct if released into the community. [] The term likely connotes much more than the mere possibility that the person will reoffend but it does not require a precise determination that the chance of reoffense is better than any. . . . [[7]] The term diagnosed mental disorder includes congenital or acquired conditions affecting a person's emotional or volitional capacity and predisposing that person to commit criminal sexual acts to an extent that makes him a menace to the health and safety of others. [] You may not conclude that Mark Arnold Clark is a sexually violent predator based solely on his alleged prior convictions. In order to prove that Mark Arnold Clark is a danger to the health and safety of others, the People do not need to prove a recent overt act committed while he was in custody. A recent overt act is a criminal act that shows a likelihood that the actor may engage in a sexually violent predatory criminal behavior."

Defense counsel requested that the jury be instructed, "The People must show beyond a reasonable doubt that Mr. Clark suffers from a Diagnosed Mental Disorder that causes serious difficulty in controlling dangerous behavior." Counsel argued that he was "well aware" of Williams but counsel believed "that this ruling does not establish the correct standard in regards to the constitutional safeguards laid out in Hendricks and Crane." Defense counsel requested that the jury be instructed, "The fact that respondent may have failed to control his behavior in the past, cannot, by itself, establish that he lacks volitional capacity."

The trial court said, "[T]he special jury instructions that both the Petitioner and the Respondent request really go to a restatement of CALCRIM 3454 and so because 3454 does seem to give the jury adequate direction regarding their need to look at Respondent's emotional or volitional capacity and the predisposition that would flow from that, I think that that's adequate . . . ."[8]

Appellant argues that the instructions given "failed to comply with the requirement of People v. Williams that there must be an instruction to the jury that conveys that to find the defendant an SVP his mental disorder be a dangerous impairment of capacity that produces 'an actual risk['] of violent reoffense which, under all the applicable circumstances, is 'substantial,' 'serious,' and 'well-founded.' Nor was there any instruction that by reason of such severe mental disorder appellant represented a 'substantial' danger of physical harm to others. (See People v. Putnam (2004) 115 Cal.App.4th 575, 582.)" Appellant argues, "By omitting the element of 'substantial' danger, this jury instruction violated the logic behind drawing the line for involuntary commitments for mental disorders that make it difficult, if not impossible, to control behavior, as Hendricks and Crane did." Appellant argues, "With the jury being instructed on the one hand in a way that likely conveyed that a SVP commitment can occur where there is no difficulty in controlling behavior as long as the disorder is based on emotional capacity, and on the other hand, the experts for both sides unanimously agreeing that the diagnosis of mental disorder carries no implications about whether a person can control his behavior, the jury would have had no idea it was to determine whether appellant had serious difficulty in controlling sexually violent behavior so the risk of reoffense was a substantial danger." Citing People v. Williams, supra, 31 Cal.4th 757, respondent argues, "California Supreme Court precedent obviates appellant's claim that the trial court had a duty to provide his requested instruction."

Appellant is in essence making the same claim advanced by the defendant and rejected by the California Supreme Court in Williams, supra, 31 Cal.4th 757. In Williams, "the jury was not separately and specifically instructed on the need to find serious difficulty in controlling behavior" and the defendant claimed that "a separate 'control' instruction was constitutionally necessary under Kansas v. Crane." (Id. at p. 759.) The Supreme Court was "persuaded that a jury instructed in the language of California's statute must necessarily understand the need for serious difficulty in controlling behavior." (Id. at p. 774, fn. omitted.) It ultimately concluded that no "further lack-of-control instructions or findings are necessary to support a commitment under the SVPA." (Id. at pp. 774-775.)

Disposition

The judgment is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

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PREMO, J.

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People v. Clark

H031202

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

[2] Halon testified that he had been on the first panel of SVP experts. After he had performed about nine evaluations, he was removed from the panel. He explained he was told, "[Y]ou do not agree with our application of the law" and he testified "and that's the truth because a D[iagnostic and] S[tatistical] M[anual of Mental Disorders (DSM)] diagnosis is not equivalent to the diagnosed mental disorder so you can't just use the DSM diagnosis in lieu of addressing the two components of the diagnosed mental disorder and they wanted me to give a DSM diagnosis and let it go at that and I wouldn't do it." Halon said that although "you can find pedophilia" in DSM4, "it definitely does not imply any degree of control or lack of sel