Filed 1/25/13 P. v. Judge CA4/1
Opinion
on remand from Supreme Court
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COURT OF
APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY JUDGE,
Defendant and Appellant.
D054342
(Super. Ct.
No. MH102101)
APPEAL from a judgment of the Superior
Court
of
San
Diego County, Peter L. Gallagher, Judge. Affirmed.
Anthony Judge appeals a judgment committing him for an
indeterminate term to the custody of the State of California Department of
Mental Health (Department) under the Sexually
Violent Predators Act (Welf. & Inst. Code, § 6600 et seq. (the
SVPA)).
because his indeterminate commitment under the SVPA violates his constitutional
rights to due process and
erred when it refused to give the jury an amplifying instruction regarding the
standard for finding a likelihood of committing future predatory acts under the
SVPA.
Judge's constitutional claims were recently addressed in
part by the California Supreme Court in People v. McKee (2010) 47
Cal.4th 1172 (McKee I). In
our original opinion, we followed McKee I
by rejecting Judge's due process claim and remanding for further
proceedings on his equal protection claim.
The Supreme Court granted Judge's petition for review; vacated our
decision; and, in order to prevent an unnecessary multiplicity of proceedings on
the equal protection claim, ordered us to suspend further proceedings in
Judge's appeal pending finality of the proceedings on remand in
protection claim on remand, this court affirmed that decision in
1325 (McKee II), and the Supreme
Court denied review. The decision in
reject Judge's constitutional challenges to the SVPA on the authority of McKee I
and McKee II. We also reject his claim of
FACTUAL AND PROCEDURAL BACKGROUND
In January 2008, the People filed a petition to commit
Judge as a sexually violent predator (SVP).
The parties stipulated to Judge's previous convictions: In 1977, he was convicted of assault with
intent to commit rape and assault with a
deadly weapon, and was sentenced to Patton
State
Hospital
as a mentally disordered sex offender.
In 1982, Judge was convicted of forcible rape, and in 1993 forcible oral
copulation. While incarcerated, Judge
exposed himself to female prison guards and employees, with the last such
incident occurring in 1995.
At a jury trial, two prosecution
testified that Judge suffered from paraphilia and antisocial personality
disorder. Both experts also testified
that they believed Judge is likely to commit sexually violent predatory
offenses in the future. Employing
various predictive tests, including the STATIC‑99 test, the prosecution
experts estimated the probability of Judge committing a sexually violent
offense over the 10 years after trial was between 30.8 percent and
100 percent.
Judge presented an
licensed clinical social worker, Brian Abbott, who testified that the
recidivism rates projected by the standard predictive tests used by the
prosecution experts were skewed by irrelevant and outdated data. Applying more recent California
data to adjust Judge's STATIC‑99 test score, Abbott testified Judge's
likelihood of reoffense was approximately 15 percent over the next 10
years. Abbott offered no opinion on
whether Judge met the criteria for commitment as an SVP.
The jury found Judge was an SVP, and the trial court
committed him for an indeterminate term pursuant to the SVPA.
DISCUSSION
We discuss Judge's various appellate challenges below,
after providing a general overview of the SVPA.
I
OVERVIEW OF THE SVPA
The SVPA provides for the involuntary and indefinite
civil commitment of persons who have been convicted of a sexually violent
offense and are found to be SVP's following the completion of their prison
terms. (§ 6604.) As originally enacted, the SVPA provided for
a two-year period of confinement. The
SVPA was amended in 2006 to provide for an indeterminate term of confinement
for persons who are found beyond a reasonable doubt to be SVP's. (Ibid.;
see People v. Shields (2007) 155 Cal.App.4th 559, 562-563.)
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).)
The requirement that an SVP be found "likely [to] engage in sexually
violent criminal behavior" (ibid.)
means "the person 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 (Ghilotti), italics omitted.)
The SVPA requires the Department to review the mental
condition of a committed SVP at least annually, and allows the court to
appoint, or the committed person to retain, a qualified expert or professional
person to examine him or her.
(§ 6605, subd. (a).) If
the Department concludes the committed individual no longer meets the
requirements of the SVPA, or that conditional release is appropriate, it must
authorize the filing of a petition for release by the committed
individual. (§ 6605,
subd. (b).)
title="">[3] If, after a probable cause hearing, the court
determines the petition has merit, the committed person is entitled to a trial,
with all the constitutional protections
that were afforded at the initial commitment hearing. (§ 6605,
subds. (c), (d).) At the trial, if
the state opposes the petition, it must prove beyond a reasonable doubt that
the committed individual remains an SVP.
(§ 6605, subd. (d).) If
the trier of fact finds in the committed person's favor, the person must be
unconditionally released and discharged.
(§ 6605,
subd. (e).)
If the Department does not authorize the filing of a
petition for release, the committed person may file a petition for conditional
release or unconditional discharge under section 6608,
subdivision (a). Unless the court
finds the petition is frivolous or includes no evidence of changed
circumstances, it must set a hearing on the petition. (§ 6608, subds. (a), (d).) In such a hearing, which may not be held
until at least one year from the date of the order of commitment, the committed
person must prove by a preponderance of the evidence that he or she is entitled
to be unconditionally discharged or placed in a state-operated forensic
conditional release program for one year.
(§ 6608, subds. (c), (d), (i).) If the court denies the petition, the
committed person may not file another petition until one year from the date of
denial. (§ 6608,
subd. (h).) If the court places a
person in a state-operated forensic conditional release program for one year,
at the end of the year it must hold another hearing to determine if the person
should be unconditionally discharged on the ground that he or she no longer
meets the requirements of the SVPA.
(§ 6608, subd. (d).) If
the court determines the person is not ready for unconditional discharge, it
may place the person on outpatient status.
(§ 6608, subd. (g).)
II
DUE PROCESS
Judge contends the SVPA violates his federal
constitutional right not to be deprived of liberty "without due process of
law" (U.S. Const., 14th Amend., § 1) because, after the initial
commitment order, it shifts the burden of proof to the committed person to
prove that he or she is no longer an SVP.
The California Supreme Court considered and rejected this claim in McKee I,
supra, 47 Cal.4th at pages 1188-1193.
After issuance of the Supreme Court's opinion in McKee I, we
requested supplemental briefing from the parties on the impact of that decision
on this appeal. In that briefing, Judge
conceded McKee I disposes of his due process claim. We, of course, are bound by the decision in
process claim on that basis. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
III
EQUAL PROTECTION
Judge asserts his involuntary commitment under the SVPA
violates his equal protection rights because (1) SVP's are subject to
indeterminate terms of commitment while persons subject to other civil
commitment schemes are subject to only one- or two-year terms, and (2) the
SVPA treats SVP's whom the Department authorizes to file a petition for release
or discharge more favorably than those SVP's who are not authorized to file
such a petition. We address these claims
in turn after setting forth the generally applicable legal principles.
A. Applicable Legal
Standards for Equal Protection Claims
The federal and California Constitutions both forbid a
state to deny to any person within its jurisdiction the "equal protection
of the laws." (U.S. Const., 14th
Amend., § 1; Cal. Const., art. I, § 7, subd. (a).) The basic guarantee of equal protection is
that those who are similarly situated relative to the purpose of a law will
receive like treatment. (
Lemanuel C. (2007) 41 Cal.4th 33, 47.)
"Equal protection does not require that all persons be dealt with
identically, but it does require that a distinction made have some relevance to
the purpose for which the classification is made." (Baxtrom v. Herold (1966) 383 U.S.
107, 111.) Thus, a state "may adopt
more than one procedure for isolating, treating, and restraining dangerous
persons" based on reasonably perceived differences in the degree of danger
posed by different classes of persons. (Conservatorship
of Hofferber (1980) 28 Cal.3d 161, 172 (Hofferber);
accord, People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217 (
"Strict scrutiny is the appropriate standard against
which to measure claims of disparate treatment in civil commitment." (People v. Green (2000) 79 Cal.App.4th
921, 924; accord, Hofferber,
supra, 28 Cal.3d at p. 171, fn. 8.) Under this standard, disparate treatment
"is upheld only if it is necessary to further a compelling state
interest." (People v. Buffington
(1999) 74 Cal.App.4th 1149, 1156 (Buffington).) The state bears the burden of showing the distinctions
drawn by the law are necessary to further the compelling interest underlying
the law. (Hubbart, supra, 88
Cal.App.4th at p. 1217.)
B. Judge's
Claim That the Differences in the Initial Term of Commitment Applicable to
SVP's and Other Groups of Civilly Committed Persons Violates His Equal
Protection Rights Has No Merit
Judge argues that subjecting him to an indeterminate term
of commitment violates his right to the equal protection of the laws because
other dangerous felons subject to civil commitment are confined for only
relatively short determinate terms. We
disagree. As we shall explain, this argument was rejected by the decisions in
supra, 207 Cal.App.4th 1325.
1.
In
McKee I, the defendant challenged as a violation of his equal
protection rights an order committing him for an indeterminate term under the
SVPA. (McKee I, supra, 47
Cal.4th at p. 1185.) Our Supreme
Court held SVP's are similarly situated to other civilly committed persons,
including persons found to be mentally disordered offenders (MDO's) and those
found not guilty by reason of insanity (NGI's).
(Id. at pp. 1203,
1207.) Therefore, absent a showing by
the state of a justification for treating SVP's significantly less favorably
than MDO's and NGI's, the Supreme Court concluded the SVPA may violate an SVP's
constitutional right to the equal protection of the laws. (McKee I, at pp. 1203,
1207.) The Supreme Court remanded the case to the trial court to determine
whether the state could establish that, relative to MDO's and NGI's, SVP's
"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."
(Id. at p. 1208.) The
Supreme Court noted that the state could satisfy this burden by demonstrating
"that the inherent nature of the SVP's mental disorder makes recidivism as
a class significantly more likely"; "that SVP's pose a greater risk
to a particularly vulnerable class of class of victims, such as children";
or "some other justification."
(Ibid.)
2.
On remand, after a lengthy evidentiary hearing the trial
court concluded the People had presented substantial evidence to support a
reasonable perception that SVP's pose a different or greater danger to society
than that posed by MDO's or NGI's. (McKee II, supra, 207 Cal.App.4th at
p. 1332.) This evidence included
statistical data, psychological test scores and testimony from experts that due
to the nature of their mental disorders, SVP's as a class pose a significantly
higher risk of recidivism than do MDO's or NGI's. (Id. at pp. 1340-1342.) In particular, the evidence supported "a
reasonable inference or perception that SVP's pose a higher
or NGI's." (Id. at p. 1342.) The
People also presented evidence that victims of sexual offenses suffer more
severe physical, mental and emotional harm than do victims of nonsex offenses
because of the intrusiveness and long-lasting consequences of sex
offenses. (Id. at
pp. 1342-1344.) In particular,
"that evidence and the evidence discussed above regarding recidivism rates
support a reasonable inference that SVP's, as sexually violent offenders with
serious mental disorders making them dangerous, generally pose an increased
risk of harm to the vulnerable class of children." (Id.
at p. 1344.) Finally, the People
presented evidence that SVP's have diagnoses that are significantly different from
those of MDO's and NGI's. Whereas MDO's
and NGI's are much more likely to suffer from psychotic disorders than from
pedophilia or another paraphilia, the converse is true of SVP's. (Ibid.) Treatment plans and success rates likewise
differ among these groups: Patients with
psychotic disorders are likely to respond to medication and to participate in
treatment, but patients with paraphilias are much less likely to respond to
medication or to participate in treatment.
(Id. at
pp. 1344-1346.) Thus, commitment
for an indeterminate term, rather than a relatively short, fixed term (e.g.,
two years), facilitates SVP's compliance with their treatment plans. (Id. at pp. 1345-1347.)
On
appeal, this court independently reviewed the evidence discussed above to
"determine whether the People presented substantial evidence to support a
reasonable inference or perception that the [SVPA's] disparate treatment of
SVP's is necessary to further compelling state interests." (McKee II,
supra, 207 Cal.App.4th at
p. 1339.) This court concluded the
People had "shown 'that the inherent nature of the SVP's mental disorder
makes recidivism as a class significantly more
likely[;] . . . that SVP's pose a greater risk [and unique
dangers] to a particularly vulnerable class of victims, such as children'; and
that SVP's have diagnostic and treatment differences from MDO's and NGI's,
thereby supporting a reasonable perception by the
electorate . . . that the disparate treatment of SVP's
under the amended [SVPA] is necessary to further the state's compelling
interests in public safety and humanely treating the mentally
disordered." (Id. at
p. 1347, quoting McKee I,
treatment of SVP's "is reasonable and factually based," and the SVPA
does not violate their constitutional right to the equal protection of the
laws. (McKee II, at
p. 1348.)
3.
After
awaiting the final resolution of the equal protection claim in McKee II, supra, 207 Cal.App.4th 1325,
as instructed by our Supreme Court, we requested supplemental briefing on the
impact of that decision on this appeal.
The People responded with a short supplemental brief urging us to follow
McKee II. Judge initially declined the opportunity to
address the issue, but later substituted counsel, obtained permission to file a
supplemental brief, and submitted a brief advancing several arguments why we
should not follow McKee II. None is persuasive.
First,
Judge contends we are not bound by the decision in McKee II because (1) the Supreme Court's order granting
review and directing us to hold the case pending finality of the decision in
follow that decision; (2) the Supreme Court's "failure to grant
review in McKee II does not
elevate the decision to controlling precedent"; (3) "[o]ne Court
of Appeal does not bind another Court of Appeal"; and (4) the People
previously acknowledged the trial court's decision on remand
does not constitute precedent "binding upon us"; but that does
not mean we should not follow it if "we find its rationale quite
persuasive," as we do. (
Inglewood-L.A. County Civic Center Authority (1974) 40 Cal.App.3d 98, 101.)
Second,
Judge argues he "is in a significantly different position than McKee and
thus should not be bound by the evidence introduced by McKee at his trial"
because he "is a convicted rapist, not a pedophile." This argument was recently rejected in
A123119) ___ Cal.App.4th ___ [2012 Cal.App. LEXIS 1325] (McKnight). McKnight argued
protection claim because, unlike McKee, McKnight "was not convicted of
crimes against children." (
disagreed, as do we, because "the analysis and holding in
specific to child predators." (
The McKee II court noted
that compared to MDO's and NGI's, SVP's (1) pose a greater risk of
reoffense; (2) cause greater harm to their victims, whether child or
adult, because sex offenses have longer lasting and more intrusive consequences
than nonsex offenses; and (3) require longer commitments due to different
diagnoses and treatment plans. (
SVP's as a class and other types of
offenders justify their different treatment under the SVPA. (McKee II,
at p. 1347.) This holding "is
not to be restricted to Mr. McKee alone or . . . to
those SVP's convicted of crimes against children"; it "applies to the
class of SVP's as a whole," including Judge. (McKnight,
at p. *5.)
Third,
Judge criticizes the McKee II
court for not conducting the required de novo review of the evidence, but
instead conducting "a mixture of sufficiency of the evidence review and
the rational basis test," which was insufficiently critical of the
evidence introduced at trial. We reject
this criticism.
The
McKee II court stated the equal
protection claim "involved mixed questions of law and fact that are
predominantly legal, if not purely legal, which
are subject to de novo review."
(McKee II,
independently reviewing the evidence admitted at the remand hearing, we
must determine whether the People presented substantial
evidence to support a reasonable inference or perception that the [SVPA's] disparate treatment of SVP's is
necessary to further compelling interests." (Id.
at p. 1339, italics added.) This is
consistent with the applicable standard of review articulated by the Supreme
Court: "When a constitutional
right, such as the right to liberty from involuntary confinement, is at stake,
the usual judicial deference to legislative findings gives way to an exercise
of independent judgment of the facts
to ascertain whether the legislative body ' "has
drawn reasonable inferences based on
substantial evidence." ' " (McKee I,
supra, 47 Cal.4th at p. 1206,
italics added.) The McKee II court then spent several pages reviewing in detail
the evidence presented at the remand trial, noting various disagreements in the
expert testimony, and concluding substantial evidence supported a reasonable
inference or perception that disparate treatment of SVP's was necessary to
further the state's compelling interests in public safety and humane treatment
of the mentally ill. (
pp. 1339-1348.) We therefore agree
with the First District that the "claim that the appellate court failed to
independently review the trial court's determination is frivolous." (McKnight,
supra, ___ Cal.App.4th at p. ___
[2012 Cal.App. LEXIS at p. *4].)
Fourth,
and finally, Judge complains the McKee II
court did not subject the SVPA to strict scrutiny because it did not
determine whether the indeterminate term of commitment prescribed for all SVP's
was "the least restrictive means available, necessary to fulfill a
compelling governmental interest, and narrowly tailored to meet that compelling
governmental interest." We
disagree. As we shall explain, although
the McKee II court did not
articulate the strict scrutiny test in the terms Judge prefers, it did apply
the required level of scrutiny.
The
United States Supreme Court has articulated the strict scrutiny test in various
ways. For example, it stated the test in
this simple way: "To survive strict
scrutiny, . . . a State must do more than assert
state interest—it must demonstrate that its law is necessary to serve the
asserted interest." (
199, italics added.) The Supreme Court
also stated the test in somewhat more detail:
"When a statutory classification
significantly interferes with the exercise of a fundamental
right, it cannot be upheld unless it is supported by
tailored to effectuate only those interests." (Zablocki
v. Redhail (1978) 434 U.S. 374, 388, italics added.) With even more elaboration, the Supreme Court
explained:
"[Laws] measured by
a strict equal protection test . . . are unconstitutional
unless the State can demonstrate that such laws are 'necessary to promote
governmental interest.'
[Citations.]
. . . [¶]
that [classifications affecting fundamental rights] further
State cannot choose means that unnecessarily burden or restrict constitutionally
protected activity. Statutes affecting
constitutional rights must be drawn with
'precision,' [citations] and must be 'tailored'
to serve their legitimate objectives.
[Citation.] And if there are
other, reasonable ways to achieve those goals with a lesser burden on
constitutionally protected activity, a State may not choose the way of greater
interference. If it acts at all, it must
choose 'less drastic means.' " (Dunn
v. Blumstein (1972) 405 U.S. 330, 342-343 (Dunn), italics added.)
The Supreme Court
recognized, however, that using particular language to articulate the test is
less important than applying the proper level of scrutiny to review the
challenged legislation: "Thus
phrased, the constitutional question may sound like a mathematical
formula. But legal 'tests' do not have
the precision of mathematical
degree: that a heavy burden of
justification is on the State, and that the statute will be closely scrutinized
in light of its asserted purposes."
(Ibid.)
California
courts likewise have not been uniform in their articulation of the strict
scrutiny test. For example, one Court of
Appeal wrote:
"Personal liberty
is a fundamental right, and a classification infringing on such a right is subject
to strict judicial scrutiny.
[Citations.] Under this very
severe standard, a discriminatory law will not be given effect unless the state
establishes the classification bears a
close relation to the promotion of a
compelling state interest, the classification is necessary to achieve the
government's goal, and the classification is narrowly drawn to achieve the
goal by the least restrictive means possible." (People
v. Leng (1999) 71 Cal.App.4th 1, 11; accord, People v. Cole (2007) 152 Cal.App.4th 230, 238.)
In a case involving an
equal protection challenge to a civil commitment statute, our Supreme Court
stated more simply that "the state must establish both that it has
the challenged procedure and that the distinctions drawn by the procedure are
Moye (1978) 22 Cal.3d 457, 465 (Moye),
italics added.) And, in a case involving
three equal protection challenges to the SVPA, the Court of Appeal used the
distinction "involves a suspect class or infringes on a fundamental
interest, it is strictly scrutinized and is upheld only if it is
interest." (
Indeed,
in remanding the case in McKee I,
the Supreme Court specifically instructed the trial court to "apply[] the
equal protection principles in Moye
and related cases discussed in [its] opinion" (McKee I, supra, 47
Cal.4th at p. 1208), and determine whether, after the trial, the People
had shown that imposing on SVP's greater burdens to obtain release from
commitment than are imposed on MDO's and NGI's is necessary to promote the state's compelling interests in public safety
and humane treatment of the mentally ill (id. at pp. 1207-1211). At the remand trial, the People met this
burden by showing that SVP's as a class pose a higher risk of recidivism than
do MDO's or NGI's (McKee II,
pp. 1340-1342), and that, because of differences in underlying mental
disorders and treatment plans, indeterminate terms were more likely to be
required and beneficial for SVP's than they would be for MDO's or NGI's (
the People's burden was to show that "the legislative distinctions in
classes of persons subject to civil commitment are reasonable and factually
based—not [that] they are incontrovertible or uncontroversial." (McKee I,
at p. 1210; accord, McKee II,
at p. 1348.) Moreover, by
independently reviewing that evidence to determine whether "the
legislative body ' "has
drawn reasonable inferences based on substantial evidence" ' "
(McKee I, at p. 1206;
accord, McKee II, at
p. 1339), the McKee II court
held the People to their "heavy burden of justification" and
"closely scrutinized [the SVPA] in light of its asserted purposes" (
The strict scrutiny test required no more.
In
sum, we agree with the conclusions reached in McKee II, supra, 207
Cal.App.4th 1325. Accordingly, we hold
that the trial court's imposition of an indeterminate term of commitment on
Judge pursuant to the SVPA did not violate his constitutional right to the
"equal protection of the laws."
(U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7,
subd. (a).)
C. Judge's
Claim That He Was Deprived of Equal Protection Based on the SVPA's
Postcommitment Release Procedures Is Not Ripe
Judge also urges us to reverse the judgment based on an
equal protection claim not specifically considered in McKee I or McKee II: Whether the SVPA violates equal protection
because its procedures on petitions for conditional release or unconditional
discharge subsequent to initial commitment unjustifiably differentiate between
(1) an SVP who seeks conditional release or unconditional discharge
must prove beyond a reasonable doubt that the SVP is not entitled to release or
discharge, and (2) an SVP who seeks conditional release or
unconditional discharge without the
Department's authorization and
receives a hearing at which the SVP must prove by a preponderance of the
evidence that the SVP is entitled to release or discharge. (§§ 6605, 6608.) We had concerns that this claim may not be
ripe for review and requested supplemental briefing on the issue. Having considered that supplemental briefing,
we decline to reach the merits of this claim.
Consistent with the principle that "under our
constitutional system courts are not roving commissions assigned to pass
judgment on the validity of the Nation's laws," we may render
constitutional judgments only where it is necessary to adjudicate the rights of
the parties in the particular case before the court. (Broadrick v. Oklahoma (1973) 413 U.S.
601, 610-611.) " 'The
rendering of advisory opinions falls within neither the functions nor the
jurisdiction of this court.' " (Younger v. Superior Court (1978) 21
Cal.3d 102, 119 (Younger).) Therefore, "[o]ne who seeks to raise a
constitutional question must show that his rights are affected injuriously by
the law which he attacks and that he is actually aggrieved by its
operation." (People v. Williams (1966) 247 Cal.App.2d 169, 170.)
Here, Judge appeals a judgment made under the SVPA's
initial commitment procedures (§§ 6601-6604), not a judgment or order made
under the SVPA's postcommitment procedures for release or discharge
(§§ 6605, 6608). Judge has not
shown he has been aggrieved by the procedures applicable to petitions for
conditional release or unconditional discharge, which he claims violate his
equal protection rights. His claim seeks
an advisory opinion based on hypothetical
facts, which we are not permitted to render.
(Younger, supra,
21 Cal.3d at p. 119; People v.
Williams, supra, 247 Cal.App.2d
at p. 170.) Accordingly, we decline
to address Judge's claim that the SVPA's postcommitment procedures for
petitions seeking conditional release or unconditional discharge
unconstitutionally deprive him of the equal protection of the laws. (Cf. People v. Carroll (2007) 158
Cal.App.4th 503, 508, fn. 2 (Carroll)
[declining to issue advisory opinion as to constitutionality of SVPA provisions
that did not apply to decision under review].)
Judge nevertheless urges us to decide this claim because
he has been committed for longer than a year and has not been authorized by the
Department seeking release. There is,
however, no record before us of any petition Judge has filed to seek
release. If and when Judge avails himself
of the statutory procedures under section 6608, subdivision (a), and is
aggrieved by a ruling under that provision, he may appeal. (People v. Collins (2003) 110
Cal.App.4th 340, 348.) Until he has done
so, the issue is not ripe for appellate review. (Carroll, supra, 158 Cal.App.4th at p. 508,
fn. 2.)
IV
INSTRUCTIONAL ERROR
Judge claims the judgment must be reversed because the
trial court committed instructional error regarding the likelihood of reoffense
under the SVPA. After setting forth the
pertinent procedural history, we shall explain why this claim has no merit.
A. Proceedings
Relevant to This Claim
After the trial court indicated it would instruct the
jury with CALCRIM No. 3454, Judge's trial counsel, apparently relying on
language of Ghilotti, supra, 27 Cal.4th at pages 920-921,
requested an amplifying instruction that to find Judge to be an SVP, the jury
must first find that he posed a "high risk" of reoffense.
not amplify CALCRIM No. 3454 because it was developed after Ghilotti was
decided and did not include the "high risk" language. The trial court refused to give the requested
instruction, but stated Judge's counsel could argue in closing that the meaning
of "substantial and well-founded" risk was "high risk."
During closing arguments, Judge's trial counsel argued
that a "[c]urrent mental disorder means serious difficulty controlling
behavior," and that this was "left off" the CALCRIM
No. 3454 instruction. Counsel
continued:
"[T]he
term 'likely' means much more than the mere possibility that a person will
engage in such a conduct. It means that
he does, in fact, present a high risk that he will engage in such conduct. So if the risk is not high, he's not a
sexually violent predator. It is a high
risk. And, again, this is one of the
things in the law that's not written in the instruction but it is the law. If you have a question about this, ask His
Honor for clarification about what 'likely' means because this is the state of
the law. It must be a high
risk."
The prosecutor argued in
rebuttal that Judge's trial counsel
"spent a
lot of time talking about, 'high risk.'
That's not the state [of the law] in [CALCRIM No. 3454]. Unless you were to say, well, I guess you can
interpret high risk meaning the way [CALCRIM No. 3454] defines it because
they don't use the word 'high.' The
instruction that you're going to follow basically talks about the kind of
substantial, well-founded, serious risk.
It's all in the law, and that is what guides your determination. There's nothing left out of CALCRIM. That's the law that's going to be guiding
your decision."
Judge's trial counsel
objected. Before the trial court ruled
on the objection, however, the prosecutor stated:
"The way
[CALCRIM No. 3454] is phrased is the law you're going to be using in going
through the elements in making your determination. If words aren't in there, you have to rely on
what it says in the CALCRIM."
The trial court overruled Judge's trial counsel's objection,
stating: "I disagree. You follow the CALCRIM in applying the facts
to the law. That's what it is. Continue."
After the jury retired for deliberations, Judge's trial
counsel again requested an amplifying instruction "that [a] substantial,
well-founded, serious risk is high risk" and requested for the first time
an additional instruction that "volitional impairment requires that
there's serious difficulty controlling behavior." He argued these instructions were needed to
correct the implication during the prosecutor's rebuttal argument that he
(Judge's trial counsel) was making up the law.
The trial court declined to reinstruct the jury in the absence of any
question from the jury. The jury
deliberated without making any inquiries of the court and delivered its verdict
the same day.
B.
Give the Requested Amplifying Instruction
Judge contends the trial court prejudicially erred by not
instructing the jury with the requested amplifying instruction that the statutory
requirement for finding Judge "likely to reoffend" meant the jury had
to find he posed a "high risk" of reoffense and had " 'serious
difficulty in controlling [his] behavior.' " We disagree.
As we shall explain, the trial court properly instructed the jury on the
standards for determining whether Judge was an SVP.
As in any trial, the trial court in an SVPA proceeding
must instruct on the general principles of law that are necessary to the jury's
understanding of the case. (People v.
Roberge (2003) 29 Cal.4th 979, 988.)
We review claims of instructional error in SVPA cases under the harmless
beyond a reasonable doubt standard. (Hurtado, supra, 28 Cal.4th at
p. 1194, citing Chapman v. California (1967) 386 U.S. 18.)
The federal Constitution requires that an indefinite
civil commitment be based on a determination that the individual committed has
some illness, abnormality or disorder that causes "serious difficulty in
controlling behavior" that renders the individual dangerous. (Kansas v. Crane (2002)
Supreme Court has rejected the claim that this requires the jury to be
instructed that to be found an SVP, the person's " 'diagnosed
mental disorder must render the person unable
to control his dangerous behavior.' " The court
held that the plain language of the SVPA "inherently
encompasses and conveys to a fact finder the requirement of a mental disorder
that causes serious difficulty in controlling one's criminal sexual
behavior." (People v.
Williams (2003) 31 Cal.4th 757, 759, 763, 769.) The court
further held a mental disorder meeting the statutory criteria of the SVPA
"must additionally produce an actual risk of violent reoffense which,
under all the applicable circumstances, is 'substantial,' 'serious,' and
'well-founded.' " Because jurors instructed using the statutory
language of the SVPA understand that to be found to be an SVP the defendant
must have a seriously impaired ability to control violent criminal sexual
conduct, our Supreme Court held that no additional instructions on that point
are needed. (People v. Williams, supra, at pp. 776-777.)
Here, the trial court instructed the jury with CALCRIM
No. 3454, which uses terms contained in the SVPA
other language defining the phrase "likely to reoffend"
Supreme Court has held satisfy constitutional requirements. (People
v. Williams, supra, 31 Cal.4th at
p. 777; Ghilotti,
jury of the legal principles necessary to perform its task. Hence, we reject Judge's contention that the
court erred by refusing to give amplifying instructions regarding "high
risk" of reoffense and "serious difficulty in controlling
behavior." (See People v.
Williams, supra, at
p. 777 [no error in failing to give separate instruction on issue of
difficulty of controlling behavior].)
C. The
Prosecutor's Rebuttal Argument Did Not Necessitate a Clarifying Instruction
Judge further argues a clarifying jury instruction was
required because the prosecutor's comments during closing argument effectively
told the jury that to find Judge to be an SVP, it need not find he had
"serious difficulty in controlling behavior" or that he posed a
"high risk of re‑offense."
We disagree.
As we have explained, the California Supreme Court has
determined the statutory language sufficiently describes the lack of behavioral
control constitutionally required to commit an individual indefinitely,
rejecting the argument that a separate instruction on behavioral control is
necessary. (People v. Williams, supra, 31 Cal.4th at
p. 777.) Likewise,
"substantial danger, that is, a serious and well-founded risk," of
reoffense accurately describe the standard for "likely to reoffend"
under the SVPA. (Ghilotti, supra, 27 Cal.4th at
p. 922, italics omitted.) Thus, the
trial court here properly instructed the jury on the statutory elements
required to find a person meets the SVPA requirements. The prosecutor's argument that the jury
instructions given were complete is therefore supported by the law.
Relying on People v. Cordero (1989) 216 Cal.App.3d
275, 282, Judge argues he was entitled to a clarifying instruction discussing
"serious difficulty in controlling behavior" because it went to the
heart of his defense theory. In Cordero,
the jury inquired of the court about the meaning of an instruction on
deliberate and premeditated killing, and the defense requested a clarifying
instruction that would enable the jury to consider the defendant's mens rea
theory. (Id. at
pp. 280-281.) The trial court
refused to give the requested instruction, which prevented the jury from
considering the defense theory. (Id.
at p. 280.) Unlike Cordero,
there is no indication in this case that the jury was confused or that Judge
was prevented from presenting his theory of the case. Judge's trial counsel amply argued his theory
that Judge did not pose a "high risk" of reoffense so that the jury
should not find him to be an SVP.
Because the standard instruction covered the point and Judge's counsel's
argument to the jury fully explicated defense theme, it was not error to refuse
to instruct the jury with the clarifying instruction Judge requested. (People v. Gutierrez (2002) 28 Cal.4th
1083, 1144-1145 (Gutierrez).)
D. Any
Error in Instructing the Jury Was Harmless
Finally, even if there was instructional error, we are
satisfied it was harmless. The evidence
adduced at Judge's trial included a debate among the expert witnesses over the
impact and accuracy of the standard tests used to measure Judge's likelihood of
reoffense. The estimates of the
likelihood of Judge's recidivism ranged from Judge's expert's 15 percent
to the prosecution's experts' 100 percent.
Judge presented no expert testimony that he was no longer suffering a
mental disorder causing him difficulty in controlling his behavior. Rather, he argued that the lack of recent
incidents showed he had his behavior under control, and that proper analysis of
his characteristics showed his risk of reoffense was not high.
Once the jury found Judge met the requirements set forth
in the jury instruction — as we must presume it did — it necessarily
found he had "serious difficulty in controlling behavior" because the
SVPA "inherently embraces and conveys the need for a dangerous mental
condition characterized by impairment of behavioral control." (People
v. Williams, supra, 31 Cal.4th at
p. 774, italics omitted.)
name="_ftnref8" title="">[8] Accordingly, there is no reasonable
possibility on this record that the jury would not have found Judge to be an
SVP had it been separately instructed to consider whether he had "serious
difficulty in controlling behavior."
(See Gutierrez, supra,
28 Cal.4th at pp. 1144-1145 [no prejudice where instructions and arguments
covered defense theory].) Any error based
on the failure to instruct on "serious difficulty in controlling
behavior" was thus harmless beyond a reasonable doubt. (See Hurtado, supra, 28 Cal.4th at p. 1194.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE
CONCUR:
NARES, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All further section
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Although a proceeding
under the SVPA is civil in nature (People v. Allen (2008) 44 Cal.4th
843, 860 (Allen)), we follow the common practice of characterizing the
parties to the action as the "prosecution" and "defense"
p. 866; see also People v. Hurtado (2002) 28 Cal.4th 1179, 1192 (Hurtado)
["Although the SVPA is a civil proceeding, its procedures have many of the
trappings of a criminal proceeding."]).
