P. v. Siler
Filed 3/20/13 P. v. Siler CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL
ANTHONY SILER,
Defendant and Appellant.
A132078
(Alameda County
Super. Ct.
No. C162290)
Michael
Anthony Siler appeals from an order following a jury trial finding him to be a
the Sexually Violent Predators Act (Welfare & Institutions Code
§ 6600 et seq. (SVPA)) and committing him to the Department of Mental
Health (DMH) for an indeterminate term.
Defendant contends: (1) the
trial court violated his Sixth Amendment
right to counsel by refusing to suspend SVP until it found he had been
restored to competency; (2) the trial court erred by instructing the jury
on his refusal to testify; (3) the SVPA is void for vagueness;
(4) there was insufficient evidence he had a qualifying diagnosed
(5) the trial court erred by failing to instruct the jury sua sponte that
they were required to unanimously agree on the qualifying diagnosed mental
disorder; (6) the trial court erred by failing to instruct the jury sua
sponte that an SVP commitment is for an indefinite time period; (7) the
use by prosecution experts of actuarial tests in assessing his risk of
reoffending violated defendant’s rights to due process; (8) the DMH used
an invalid evaluation protocol to subject him to SVP proceedings;
(9) amendments to the SVP laws under Proposition 83 (Jessica’s Law) violate
his constitutional rights to due
process and equal protection. Having considered defendant’s contentions, we
conclude none have merit and, accordingly, affirm the judgment.
Factual and Procedural Background
In
November 2009, the
County District Attorney (DA) filed a petition for commitment, alleging
defendant is an SVP within the meaning of section 6604 because he has suffered
at least one qualifying conviction for a sexually violent offense, currently
has a diagnosed mental disorder, and poses a danger to the health and safety of
others due to the likelihood he will engage in sexually violent, predatory
criminal behavior as a result of his diagnosed mental disorder unless he
receives appropriate treatment in custody.
The declaration filed in support of the petition states defendant is
currently incarcerated at Mule Creek State Prison with a parole release date of
December 1, 2009 and that the Director of the California Department of
Mental Health (Department) has requested that defendant be civilly committed as
an SVP based on the evaluations of two independent mental health professionals,
Dr. Mark Wolkenhauer and Dr. Douglas Korpi. The trial court received testimony from
Drs. Wolkenhauer and Korpi at a probable cause hearing held on
February 26 and March 1, 2010. Thereafter, the trial court found probable
cause to believe defendant is an SVP and ordered him detained pending
trial.
In
the pre-trial phase of the proceeding, the parties raised several issues now
before us on appeal. Defendant filed a
motion to dismiss the petition on the grounds that defendant’s referral by the
Department to the DA was based on evaluations conducted pursuant to an invalid
protocol. Also, defendant filed a motion
requesting a finding that he was restored to competency before the trial could
proceed.
seeking the court’s permission to call defendant as a witness if necessary. In
response, defendant requested that the trial court sustain “any proper claim of
the privilege against self-incrimination.â€
In ruling on these issues, the trial court denied defendant’s motion to dismiss,
finding that the 2009 standardized protocol utilized by the Department complies
with due process and constitutes a standard assessment protocol as required by
statute. In regard to defendant’s
contention that the court make a finding that he was restored to mental
competence in advance of trial, the court, relying on Moore v. Superior Court,
to be restored to trial competency for purposes of SVP proceedings and,
accordingly, denied the motion.
Finally, the trial court ruled that
defendant could be called as a witness in the People’s case in chief.
When
trial commenced, the People called defendant as their first witness. Defense counsel informed the court defendant
intended to invoke the privilege against self-incrimination under the Fifth Amendment,
and the following colloquy ensued:
“The Court: Mr. McCormick [defense counsel], it’s
the law . . . that in . . . a civil case that the privilege
does not apply. [¶] Do you
acknowledge . . . that is the law?â€
[Counsel]: I do, your Honor.
The Court: Have you so advised Mr. Siler?
[Counsel]: I have.
The Court: All right.
[¶] Mr. Siler, I am required to order you to come forward and
be sworn as a witness, and take the witness stand. [¶] Will you comply with that order?
Defendant: I take the Fifth, your Honor:
self-incrimination.
The Court: Then, I take it, that you will not comply
with the order?
Defendant: I take the Fifth, your Honor:
self-incrimination.â€
At
this point, the court ordered a recess and, out of the presence of the jury,
informed defendant that if he refused to take the stand, the court would
instruct the jury how to evaluate his refusal to testify. Defendant, in response to the court’s
admonition, invoked the Fifth Amendment.
The trial resumed, however defendant refused to testify. Next, the People called a member of the DA’s
staff to read documents describing defendant’s history of sexual offenses. The offenses chronicled for the jury began in
September 1969, when defendant at age 18 entered M.A.’s residence while she was
taking a shower, held a knife to her side and demanded money.
unzipped his pants. M.A. felt
defendant’s penis on her leg and started fighting and screaming. Defendant positioned his penis and hands next
to M.A.’s vaginal area but did not penetrate her. Instead, defendant got off her, and M.A. fled
the apartment to seek assistance. In
October 1969, defendant entered H.T.’s apartment, grabbed her and demanded
money. Defendant told H.T. he had been
“watching [her] for a long time,†hit her about the face, threw her on the bed
and ripped off her clothes. Defendant
climbed on top of H.T. and held a knife to her throat, at which point H.T.
passed out.
The
next document read to the jury described a December 1975 offense. Defendant followed R.H. as she walked home
from the market. As R.H. was going into
her apartment building, defendant asked her if “the Jeffersons†lived there. She directed him to the manager’s unit. However, defendant followed R.H. to the third
floor, grabbed her around the neck, put a knife to her throat and told her he
would kill her if she screamed. He then
forced her downstairs to the carport area, pushed her to her knees and demanded
money. Defendant then threw R.H. onto
her back, ripped off her pantyhose, called her a “bitch,†and vaginally and
anally raped her.
The
DA staff member also read to the jury trial transcripts of witnesses’ testimony
describing incidents that occurred in November 1987. The transcript of K.B.’s testimony reflected
on November 28 she left the Blue Dolphin restaurant in San Leandro at around
2:30 a.m. and began to drive home along Marina Boulevard. A few minutes later, defendant’s car pulled
alongside and defendant shouted at her to pull over. K.B. accelerated away and defendant
followed. Defendant chased K.B. for
about two miles, during which K.B. ran a red light in an attempt to escape
defendant. The chase ended when K.B.
pulled into the parking lot at a Quick Stop.
Defendant approached K.B.’s vehicle on foot, informed her he was a
police officer and demanded angrily that she get out of the vehicle. K.B. refused to exit her vehicle and demanded
defendant show a badge identifying him as an officer. At this point, a friend of K.B.’s happened to
pull into the parking lot, and she ran to his truck. Defendant fled the scene and K.B. contacted
the police.
The
transcript of M.G.’s testimony was also read to the jury. M.G. testified that she was driving along
Marina Boulevard in San Leandro at around 2:30 a.m. on November 28. Defendant pulled up alongside her car, honked
his horn and motioned her to pull
over. When she failed to pull over,
defendant pulled in front and forced M.G.’s car to stop on the side of the
road. Defendant approached her car on
foot yelling, “Did you have anything to drink tonight?†Defendant stated he was an Oakland Police
Officer and demanded M.G. exit her vehicle.
She refused and asked to see defendant’s identification. Defendant got really angry, opened the
driver’s door of M.G.’s vehicle and grabbed her by the neck. M.G. accelerated away as fast as she could
but defendant kept a hold of her neck while running alongside her vehicle. After the car picked up speed, defendant let
go and the door slammed closed. M.G.
looked in her rear view mirror and defendant was lying on the ground. M.G. was bleeding from the neck.
Last,
the DA read the trial testimony of M.B., recounting her contact with
defendant in the early morning hours of
November 28. M.B. testified that
defendant pounded on her apartment door that morning, yelling he was a police
officer and demanding she let him in because “I’ve got to get to Tony.†Thinking her screen door was closed securely,
M.B. opened the door a crack to see defendant, at which point he forced his way
in at knifepoint. M.B. then endured a
horrific assault lasting several hours.
Defendant beat her about the head, threatened to slit her throat and
forced her to orally copulate him multiple times and forced her to lick up her
own vomit when she gagged on his penis.
Defendant also raped M.B. multiple times both vaginally and anally. During the attack, defendant drank from a
bottle of liquor and finally fell asleep holding onto the victim. Eventually, M.B. was able to free herself
from defendant’s grasp without waking him and fled the apartment to seek
assistance from a neighbor.
The
People also presented expert testimony from Drs. Wolkenhauer and Korpi.
Each offered expert opinions in the areas of psychology, risk assessment and
addressed the criteria for determining whether defendant was an SVP. Dr. Wolkenhauer testified that in his
opinion defendant suffers from the mental disorders of paraphilia not otherwise
specified (NOS), paranoid schizophrenia and he concluded that defendant suffers from antisocial personality
disorder as well. Dr. Wolkenhauer
defined defendant’s paraphilia NOS as relating to arousal based on the
dominance and non-consent of the victim.
Dr. Wolkenhuar opined defendant’s mental disorders predispose
defendant to reoffend as an SVP if released from custody. Dr. Korpi also diagnosed defendant with
the mental disorders of paraphilia NOS and paranoid schizophrenia. However, he diagnosed defendant with
borderline personality disorder.
Regarding his diagnosis of a sexual disorder (paraphilia NOS),
Dr. Korpi opined that defendant’s rape of M.B. showed indicia of sadism,
placing defendant somewhere on a continuum between rapism and sadism. As sadism was evident in only one of defendant’s
rapes, however, Dr. Korpi decided paraphilia (NOS) was the appropriate
diagnosis because “it’s enough for him to have sex with women who don’t want to
have it.†In regard to risk assessment,
Dr. Korpi opined that defendant is likely to reoffend as an SVP.
The
sole witness for the defense was Dr. Brian Abbott, a licensed clinical
psychologist and expert in the area of forensic psychology applied to the
evaluation of sexually violent predators.
Dr. Abbott testified that he diagnosed defendant with paranoid
schizophrenia based upon defendant’s bizarre delusions that the government
implanted wiring and computer chips into his body in order to control him. Dr. Abbott disagreed with
Drs. Wolkenhauer’s and Korpi’s diagnoses defendant suffered from
paraphilia NOS. Dr. Abbott
testified the NOS category listed in the Diagnostic and Statistical Manual
(DSM) is not intended for diagnostic purposes.
Rather, that diagnosis is solely intended for “for clinical convenienceâ€
in providing treatment. Dr. Abbott
opined there is a lack of consensus in the professional community regarding the
diagnostic criteria for paraphilia NOS, thus the diagnosis is unreliable for
use in SVP proceedings. Also, he opined
the actuarial tools used by Drs. Wolkenhauer and Korpi in their risk
assessments of defendant’s likelihood of reoffending in the future were
unreliable as applied to defendant.
Dr. Abbott opined defendant does not suffer from a diagnosed mental
disorder that predisposes him to commit SVP crimes and, accordingly, defendant
does not present a substantial risk of reoffending as an SVP.
Out
of the presence of the jury and prior to completion of the evidentiary portion
of the trial, the court and counsel discussed jury instructions. At one such hearing, the parties discussed
the instructions the court should give to the jury regarding defendant’s
refusal to testify. Initially, the trial
court proposed giving two instructions on this topic, one based on CALCRIM 371
(Consciousness of Guilt: Suppression and Fabrication of Evidence) and one based
on Evidence Code section 413 (Failure to Explain or Deny Evidence) and defense
counsel proposed the trial court use a civil instruction, BAJI 2.03. Ultimately, the parties agreed that the trial
court should withdraw the instruction based on Evidence Code section 413 and
instruct the jury based solely on CALCRIM 371.
As given, the instruction reads:
“If, by refusing to testify, the Respondent tried to hide evidence, that
conduct may show that he was aware that he is a ‘sexually violent predator.’ If
you conclude that the Respondent made such an attempt, it is up to you to
decide its meaning and importance. However, evidence of such an attempt cannot
prove that he is a ‘sexually violent predator’ by itself.â€
The
jury after receiving the court’s instructions began its deliberations on the
morning of May 12, 2011, and later in the afternoon the same day delivered its
verdict finding defendant is an SVP pursuant to section 6600. On May 16, 2011, the trial court filed an
order for commitment pursuant to section 6600.
Defendant filed a timely notice of appeal on May 18, 2011.
Discussion
Trial Court did not violate Defendant’s Right to Counsel When it Denied Defendant’s Request for Temporary
Suspension of Proceedings.
Defendant contends that the trial
court violated his right to due process as well as his Sixth Amendment
constitutional right to effective counsel when it refused to temporarily
suspend the SVPA proceedings to facilitate restoration of his competency before
proceeding to trial. According to
defendant, in SVP proceedings the Sixth Amendment requires the state to make
“reasonable efforts, for a reasonable time, to restore competence†before
proceeding to trial. Alternatively,
defendant contends the court’s failure to suspend SVP proceedings for some minimally
reasonable period in order to facilitate his return to competence violated his
right to due process. In pressing the
latter contention, defendant acknowledges the California Supreme Court held, in
Moore v. Superior Court, supra, 50
Cal.4th 802, due process was not offended by requiring a mentally incompetent
defendant, while represented by counsel, to undergo a commitment trial. Nevertheless, he argues his due process claim
is not foreclosed by Moore, because
here—whether a temporary suspension of SVP proceedings is required to protect
his due process rights.
For
the reasons set forth below, we agree with the Attorney General’s argument that
the Sixth Amendment is not the source of defendant’s guarantee of effective
assistance of counsel in SVP proceedings.
Thus, the Sixth amendment provides no support for defendant’s
denial-of-counsel claim and, in all events, he fails to establish prejudice on
this record. Instead, the source of
defendant’s right to counsel in SVP proceedings is statutory in nature and thus
whether his statutory right to counsel was violated is properly analyzed under
the due process clause. However, we
conclude that defendant’s due process claim is foreclosed under
Addressing defendant’s due process claim first, we note in
whether “the defendant in an SVP proceeding has a due process right not to be
tried or civilly committed while mentally incompetent†— an issue, the court
noted, “which is likely to arise in countless other cases.†(Moore,
supra, 50 Cal.4th at pp. 807-808.)
The court noted that “SVP proceedings are civil, not criminal in
nature,†therefore the constitutional rights available to criminal defendants
do not apply. (Id. at p. 818.)
However, “because civil commitment involves a significant restraint on
liberty, the defendant in an SVP proceeding is entitled to certain due process
protections. (Citations.)†(
To determine “ ‘what process is due’ [to] a potential civil
committee†(Moore, supra, 50 Cal.4th
at p. 819), courts balance four factors:
“(1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; (3) the government’s interest, including
the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail; and (4) the
dignitary interest in informing individuals of the nature, grounds, and
consequences of the action and in enabling them to present their side of the
story before a responsible government official. (Citations.)†(Ibid.)
Employing
this balancing test, the court acknowledged the liberty and dignitary interests
at stake in an SVP commitment proceeding are significant. (See Moore,
supra, 50 Cal.4th at p. 824.)
However, the court opined the risk of an erroneous deprivation of such
interests to an incompetent SVP defendant was “relatively attenuated†because
defendant plays only a minor role in SVP proceedings given “the nature of the
issues, evidence, and findings in an SVP proceeding,†especially the preeminent
role of expert opinion in resolving the critical questions at issue. (Moore,
supra, 50 Cal.4th at p. 824.)
The risk of an erroneous deprivation of an SVP defendant’s liberty and
dignitary interests are further reduced, the court noted, by the “numerous
procedural safeguards available to prevent an erroneous commitment in
contribution the particular defendant is willing or able to make. First, during
trial, no defendant, including one who may be mentally incompetent, must
proceed without “the assistance of counsel,†or without “the right to retain
experts or professional persons to perform an examination†on his behalf.
(§ 6603, subd. (a).) . . . [A]s a general rule, such “mandatory
representation,†coupled with expert assistance, [is] ‘generally is beneficial’
to the defense. [Citation.] Other heightened statutory requirements, like jury
unanimity and the reasonable doubt standard of proof, help mitigate the risk
that an incompetent person would be erroneously adjudicated as an SVP in the
first place.†(Ibid.) Accordingly, the
court concluded “the risk-of-error†factor does not weigh in favor of finding
the claimed due process right. (
Pivoting
to the “most critical factor†at issue — the governmental interests that “weigh
against allowing SVP’s to avoid being tried or committed while mentally
incompetent†— the court acknowledged the government’s “ ‘strong interest
in protecting the public from sexually violent predators, and in providing
treatment to these individuals.’ â€
(Moore, supra, 50 Cal.4th at
p. 825.) On this factor, the court
concluded “[t]he state’s interest in enforcing [SVP] procedures, and in
protecting the public, would be substantially impaired if an alleged SVP could
claim, based on his diagnosed mental disorders, that he was too incompetent to
undergo a trial leading to such targeted confinement and treatment.†(Ibid.)
Overall,
balancing the competing interests at stake, “and placing special weight on the
‘paramount’ interest in public safety,†the Moore
court held that “due process does not require mental competence on the part of
someone undergoing a commitment or recommitment trial under the SVPA.
[Citation.]†(Moore, supra, 50 Cal.4th at p. 829.)
Balancing
the factors identified in Moore, supra,
we reject defendant’s contention that due process requires a temporary
suspension in SVP proceedings to guarantee effective assistance of
counsel. Defendant, as the
liberty and dignitary interests at stake in the SVP proceedings. However, for the reasons articulated in
factor weighs against finding the due process right defendant presses
here. (See Moore, supra, 50 Cal.4th at p. 824.) Likewise, as in Moore, “[t]he state’s interest in enforcing [SVP] procedures, and
in protecting the public, would be substantially impaired†(
if we were to recognize the rudderless due process right advanced by defendant,
which would require suspension of SVP proceedings until the state made “reasonable
efforts for a reasonable time to restore competence.†In sum, having balanced the factors
identified in Moore, defendant fails
to establish any meaningful distinction between the claim he asserts here and
the due process claim disposed of by the Supreme Court in Moore. Therefore, we
conclude that defendant’s due process claim has no merit.
Defendant’s
contention that the trial court’s failure to temporarily suspend SVP
proceedings for a reasonable period violated his Sixth Amendment right to
effective assistance of counsel fares no better. We agree with defendant, Moore did not address specifically the Sixth Amendment claim
defendant presses here. However, for the
reasons set forth below, we find his Sixth Amendment claim is meritless.
In
this regard, the United States Supreme Court “has long held that the Sixth
Amendment grants an indigent defendant the right to state-appointed counsel in
a criminal case[] (citation),†but
the court has stated categorically that “the Sixth Amendment does not govern
civil cases.†(Turner v. Rogers (2011) 131 S.Ct. 2507, 2516.) “The categorization of a particular
proceeding as civil or criminal ‘is first of all a question of statutory
construction.’ [Citation.]†(
361.) However, both the high court and
the California Supreme Court have held SVP proceedings are civil, not criminal,
in nature. (See Kansas v. Hendricks, supra, 521 U.S. at pp. 361-365 [Kansas
SVPA was intended to create a civil proceeding designed to protect the public
from harm, as evidenced by the fact “commitment under the Act does not
implicate either of the two primary objectives of criminal punishment:
retribution or deterrence,†and the availability under the Act of “procedural
safeguards traditionally found in criminal trials . . . does not
transform a civil commitment proceeding into a criminal prosecutionâ€]; see also
Allen v. Illinois (1986) 478 U.S.
364, 371-372 (Allen) [proceedings
under the Illinois Sexually Dangerous Persons Act are not “criminal†within the
meaning of the Fifth Amendment’s guarantee against compulsory
self-incrimination and the States’ “decision nevertheless to provide some of
the safeguards applicable in criminal trials cannot itself turn these
proceedings into criminal prosecutions . . . .â€];
Cal.4th 1138, 1170-1171 (Hubbart) [ex
post facto clause “prohibits only those laws which ‘retroactively alter the
definition of crimes or increase the
punishment for criminal acts[]’ †and thus does not apply to the SVPA
because “the Legislature disavowed any ‘punitive purpose[ ],’ and declared its
intent to establish ‘civil commitment’ proceedings in order to provide
‘treatment’ to mentally disordered individuals who cannot control sexually
violent criminal behavior. (Citation.)â€]; People
v. Vasquez (2001) 25 Cal.4th 1225, 1231-1232 [“SVPA . . . is
protective rather than punitive in its intentâ€].) Therefore, we have no trouble concluding that
the the Sixth Amendment right to counsel does not apply in SVP proceedings
which are civil in nature. (Cf.
p. 2516.) Accordingly, defendant’s
Sixth Amendment claim necessarily fails.
(Cf. People v. Fraser ( 2006)
138 Cal.App.4th 1430, 1445-1446 [“because a civil commitment proceeding under
the SVPA has a nonpunitive purpose and is therefore not equivalent to a
criminal prosecution, . . . there is no Sixth Amendment right to
self-representation in SVPA proceedingsâ€].)
B. Defendant’s Failure to
Testify
Defendant
asserts that a potential civil committee in SVP proceedings has a right to
refuse to testify. According to
defendant, this right is founded on the right not to incriminate himself, and,
more broadly, on California’s constitutional right of privacy.
The
Fifth Amendment’s guarantee against compulsory
context of civil proceedings under the SVPA.
(See Allen, supra, 478 U.S. at
p. 375 [holding that proceedings under the Illinois Sexually Dangerous
Persons Act “are not ‘criminal’ within the meaning of the Fifth Amendment to
the United States Constitution, and that due process does not independently
require application of the privilege]; People
v. Leonard (2000) 78 Cal.App.4th 776, 792 [“Allen [] defeats defendant’s claim the district attorney was not
entitled to call him as a witness in the SVPA proceedingsâ€].) Furthermore, to establish a cognizable
violation of right to privacy under Article I, section 1 of the California
Constitution defendant must demonstrate (1) a legally protected privacy
interest; (2) a reasonable expectation of privacy; and (3) a serious
invasion of the privacy interest. (
pp. 35-37.) Assuming,
protected privacy interest and a reasonable expectation of privacy in not
testifying at his SVP hearing, defendant fails to present any evidence of
disclosure or any facts that would otherwise prove he suffered a serious
invasion of the purported privacy interest based upon the State’s decision to
call him as a witness in the SVP proceedings.
Defendant
also claims the trial court erred by adversely instructing the jury regarding
his refusal to testify, asserting the instruction was unwarranted as there was
no evidence defendant’s refusal to testify was motivated by a desire to hide
evidence. Given that defendant may not
invoke the protections of the Fifth Amendment in the proceedings under the SVPA
(see Allen, supra, 478 U.S. at
p. 375), we cannot say the trial
court committed legal error in instructing the jury regarding defendant’s
failure to testify.
title="">[6]
In
all events, pursuant to the jury instruction concerning defendant’s failure to
testify, the jury was free to decide whether defendant tried to hide evidence
by refusing to testify, and, if he was hiding evidence, to decide its meaning
and importance. Moreover, although the
prosecutor mentioned defendant’s refusal to testify in her closing argument, she
did not, to her credit, argue the jury should draw the inference that by
failing to testify defendant was hiding evidence pertinent to the determination
whether he is an SVP.
name="_ftnref7" title="">[7] Thus, even if it was given erroneously,
defendant was not prejudiced by the instruction.
Challenge
“[T]he
terms of a penal statute creating a new offense must be sufficiently explicit
to inform those who are subject to it what conduct on their part will render
them liable to its penalties.†(
269 U.S. 385, 391.) This requirement is
“consonant alike with ordinary notions of fair play and the settled rules of
law. And a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.
(Citations).†(Ibid.)
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.â€
(§ 6600, subd. (a)(1) [italics added.) Defendant contends the “likely†standard
renders the SVPA constitutionally vague.
However, defendant has forfeited this claim because he failed to raise
the claim before the trial court. (
170-171 [“ ‘No procedural principle is more familiar to this Court than that a
constitutional right,’ or a right of any other sort, ‘may be forfeited in
criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.’ [Citation.]â€
[Citation.]’ [Citation.]â€].) In any
event, even if this issue were properly before us, we would reject it because
the meaning of “likely to engage in acts of sexual violence’†was clearly
explained by our Supreme Court in People
v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894 (
In
Ghilotti, the court “conclude[d] that
the phrase ‘likely to engage in acts
of sexual violence’ (italics added), as used in section 6601, subdivision (d),
connotes much more than the mere possibility that the person will reoffend as a
result of a predisposing mental disorder that seriously impairs volitional
control. On the other hand, the statute does not require a precise
determination that the chance of reoffense is better than even. Instead, an
evaluator applying this standard must conclude that the person is ‘
makes it difficult or impossible to restrain violent sexual behavior, 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.†(Id.
at p. 922 [italics added].)
Contrary to defendant’s assertions, the court’s clear definition of the
phrase “likely to engage in acts of sexual violence†comports with due process
requirements. Accordingly, we
reject defendant’s claim the SVPA is
constitutionally vague on that ground.
of the Evidence Regarding Diagnosed Mental Disorder
In
order to commit defendant as an SVP, the People had to prove beyond a
reasonable doubt, inter alia, that
defendant currently suffers from a diagnosed mental disorder.
instructed the term “ ‘diagnosed mental disorder’ includes conditions
either existing at birth or acquired after birth that affect a person’s ability
to control emotions and behavior and predispose that person to commit criminal
sexual acts to an extent that makes him or her a menace to the health and
safety of others.’ â€
Defendant
contends the record fails to reflect sufficient evidence he
mental disorder because the opinions rendered by the prosecution experts
primarily rely on his past convictions
for their diagnosis of the mental disorder paraphilia NOS.
First,
we note past criminal conduct has a “proper role†to play in the SVPA
commitment determination and thus the prosecution experts could consider
defendant’s past crimes in assessing whether he currently suffers from a
diagnosed mental disorder. (See
pp. 1163-1164, [noting the high court “has consistently upheld commitment
schemes authorizing the use of prior dangerous behavior to establish both
present mental impairment and the likelihood of future harm. (citations)â€].) Moreover, in forming his diagnosis,
Dr. Wolkenhauer reviewed not only documents reflecting defendant’s past
crimes, but also reviewed defendant’s medical records and interviewed defendant
in person at Mule Creek State Hospital.
In
forming his diagnosis, Dr. Wolkenhauer identified a pattern, or modus
operandi, to defendant’s offenses demonstrating paraphilic arousal based on
subjecting victims to nonconsensual sex.
Dr. Wolkenhauer noted several factors in support of his opinion: All of the nine victims were strangers to
defendant; he was married at the time he committed the vast majority of sex
offenses, suggesting his actions were based on more than a simple need for sex;
and, defendant’s marked persistence and lack of volitional control,
demonstrated by the fact defendant committed many of the offenses while on
probation or parole.
Dr. Wolkenhauer also considered defendant’s “hyper-sexual†behavior
as a juvenile, noting he had sex with a nine year-old when he was 12 or 13
years of age and also engaged in peeping Tom activities while in junior high
school. Moreover, during his interview
with Dr. Wolkenhauer, defendant stated he had “a problem with lust†and Dr. Wolkenhauer noted defendant’s
victims ranged widely in age from teenagers to older adults, demonstrating
“some persistent urge.†According to
Dr. Wolkenhauer, although defendant has been incarcerated since 1988 he
continues to suffer from paraphilia NOS because the condition is “chronic and
life-long†and “doesn’t just go away†and defendant had not been treated for
the condition during his incarceration.
In fact, defendant specifically declined sex offender treatment.
Dr. Korpi,
the other prosecution expert, stated the criteria for paraphilia NOS are
(1) a person has fantasies, urges or behaviors concerning sex with
nonconsenting adults for a period of more than six months and (2) the
person’s fantasies, urges or behaviors concerning sex with nonconsenting adults
causes substantial disruption in that person’s life. According to Dr. Korpi, to determine if
a person has paraphilia NOS, “you tend to look at it chronologically[,]
. . . from when they were a baby to where they are now, and look at
how the person develops.†Dr. Korpi
identified critical incidents from defendant’s chronology in support of his diagnosis
of paraphilia NOS. First, as a juvenile,
defendant told a probation officer he “gets increased sexual stimulation in
precarious situations when he has sex with older girlsâ€; defendant had sex with
a nine year old girl when he was 12 years old; defendant engaged in peeping Tom
behavior in junior high school; and defendant engaged in incidents of indecent
exposure. According to Dr. Korpi,
defendant’s behaviors as a juvenile “could be early signs of symptoms of a
sexual disorder.â€
The
next point in defendant’s chronology is September 1969 when defendant was 18
years old and suffered a conviction for assault-to-commit rape of a 20-year old
victim. Korpi thought because defendant
asked for money this may have been a robbery and because defendant ran off when
the victim screamed, “maybe this is a guy who really doesn’t like rape.†Shortly thereafter, in October 1969,
defendant was arrested for assault to commit rape. The fact this arrest occured while defendant
was on bail for the September 1969 offense made Dr. Korpi think for the
first time that “we might have something; that there’s something wrong with
him.†Also, defendant told the
October 1969 victim, “I’ve been watching you for the longest time,â€
indicating stalking, planning, and sexual anticipation. And the fact defendant pulled down his pants
and pulled off the victim’s clothes means he’s now “thinking about rape.†Only six days later, defendant was charged
with indecent exposure and battery after trying to drag a woman into his car,
indicating “there’s some driving force going on here.†Next, Dr. Korpi noted after defendant
pleaded guilty to the above offenses, he told a prison psychiatrist “rape is on
my mind,†admitted he is a mentally disordered sex offender and requested
treatment, suggesting defendant was “looking for explanations why he did thisâ€
and had “genuine concern[s]†about himself.
According
to Dr. Korpi’s diagnosis, the next significant point in defendant’s
chronology is June 1973, after defendant was released from prison. Only eight months later, while still on
parole, defendant was charged with rape of a 15-year-old girl; the girl alleged
defendant gave her a ride, stopped near her home, locked the car, and
threatened her with a crow bar before raping and sodomizing her. However, the district attorney did not press
charges because the victim did not want to prosecute. Dr. Korpi stated he was not “absolutely
sure†if defendant suffered from paraphilia at this point in the chronology,
but he was “getting very close†to that conclusion.
The
next point on the chronology, Dr. Korpi stated, “is where I make my
diagnosis.†Seven months after his
release from prison, and while on parole for the sexual assault of the
15-year-old hitchhiker, defendant raped and sodomized a 20-year-old woman in
the carport area of her apartment block after taking her at knifepoint from the
entrance to her third floor apartment.
Dr. Korpi opined that a pattern to defendant’s sexual crimes had
now emerged, including use of a knife to threaten the victim and anal
rape. Dr. Korpi stated: “Most rapes . . . a guy who goes in
an apartment . . . rapes a woman and leaves. He doesn’t rape and sodomize her. That’s overkill; too much is going on. And he does[] it in a public area, right
behind the darn apartment building where you can get easily caught. This compulsion has taken him over. We now know he’s got the disorder.†He further opined defendant is “clearly
aroused†by his victims’ lack of consent, as evidenced by the fact he maintains
an erection while raping his victims vaginally and anally.
Subsequent
events in defendant’s chronology confirmed Dr. Korpi’s diagnosis of
paraphilia, specifically, after defendant was released from prison in 1980, he
was arrested in 1987 for 40 sex offenses against four different victims. Dr. Korpi testified the fact defendant
did not offend between 1980 and 1987 did not affect his diagnosis of
paraphilia; rather, it merely showed defendant, like an alcoholic, had managed
to control his behavior for a time but ultimately “he could not contain[] the
monster.â€
In
forming his diagnosis Dr. Korpi also considered defendant’s reaction to
his crimes; he opined defendant has a “conscience†and regrets his inability to
control his impulses. In this regard,
Dr. Korpi noted that when defendant went to the hospital as a MDSO in the
70’s, “he wanted treatment and he wanted an explanation.†Later, defendant blamed drugs for his
behavior and his current explanation is that he is controlled by computer chips
implanted in his body that unleash anger, lust and violence. According to Dr. Korpi, this indicates
defendant “has a disorder, that he wishes he doesn’t have, and he can’t control
it and it’s something he’s going to have to deal with.†Dr. Korpi opined defendant currently
suffers from paraphilia because “it’s an orientation . . .
[defendant] likes . . . coercive sex.
It doesn’t go away.†Treatment
may prevent the behavior associated with paraphilia but cannot cure the
affliction itself.
The
evidence presented at trial by the prosecution’s expert witnesses was
“ ‘ “reasonable in nature, credible and of solid value†’
[Citation].†(People v. Mercer (1999) 70 Cal.App.4th 463, 466.) Drs. Wolkenhauer and Korpi based their
diagnoses of paraphilia NOS on defendant’s personal history and a detailed
evaluation of the type, nature and pattern of the offenses constituting
defendant’s long history of sexual assaults and attempted sexual assaults. The key factors identified by Drs. Wolkenhauer
and Korpi in support of their diagnoses included: defendant’s hyper-sexual behavior as a
juvenile; defendant’s choice of forced sex during a time he was married and had
the opportunity of consensual sex; the fact he not only vaginally raped but also
anally raped his victims; his sexual arousal in the face of his victims’
distress and lack of consent; the “persistent urge†or compulsion underlying
his behavior as evidenced by the wide range in the ages of his victims and his
disregard for the risk of detection; and the fact defendant sought treatment as
a MDSO, his admission to having a “problem with lust†and his need to explain
his behavior all show defendant realizes and is aware of his condition. In sum, the testimony rendered by
Drs. Wolkenhauer and Korpi constitutes substantial evidence in support of
the jury’s finding that defendant suffers from paraphilia NOS. (See People
v. Mercer, supra, 70 Cal.App.4th at p. 466 [substantial evidence
standard applies to a challenge to an SVPA commitment on sufficiency of the
evidence grounds].) Accordingly, we
conclude the jury’s finding on that point must be affirmed. (Ibid.
[appellant court must “review the entire record in the light most favorable to
the judgment to determine whether substantial evidence supports the
determination belowâ€].)
Instructions
Defendant
contends that the trial court committed prejudicial error by failing to
instruct the jury, sua sponte, they were required to unanimously agree on the specific mental disorder qualifying him
as an SVP. Defendant bases his
contention on the unanimity rule applicable in criminal proceedings. The unanimity rule provides that “[w]here the
evidence shows that several criminal acts may have been committed and the
defendant is not charged separately with a violation of all those acts, the
trial court is required, sua sponte, to instruct the jurors that they must
unanimously agree beyond a reasonable doubt upon the particular act
constituting the crime. [Citations.] The purpose of this rule is to insure that
all jurors agree beyond a reasonable doubt that one particular act or acts
constitute the crime charged. [Citations.]â€
(People v. Washington (1990)
220 Cal.App.3d 912, 915.)
However,
“[a]n SVP proceeding is civil, not criminal, and the unanimity requirement for
an SVP proceeding is established by statute.
[Citation.] Under the SVPA, the
jury must determine whether the requirements for classification as an SVP have
been established ‘beyond a reasonable doubt’ and the jury’s
(People v. Carlin (2007) 150
Cal.App.4th 322, 347.) Nevertheless,
whereas the jury’s verdict must be unanimous, “[t]here is no statutory
requirement regarding unanimity for each subpart of the SVP determination.†(Id.
at p. 347 [rejecting claims that the trial court erred in failing to
instruct the jurors that they must unanimously agree on which prior convictions
involved substantial sexual conduct and on which acts constituted substantial
sexual conduct]; see also People v.
Fulcher (2006) 136 Cal.App.4th 41, 59 [concluding that because “SVP
proceedings are civil in nature, even though some criminal procedural
protections apply, the rule requiring a unanimity instruction does not apply in
SVP civil commitment proceedings. [Citations]â€].) Accordingly, because the trial court
adequately instructed the jury on each of the elements of defendant’s civil
commitment (see ante fn. 8), the
court did not commit prejudicial error by failing to give a unanimity
instruction sua sponte on the “diagnosed mental disorder†element.
Next,
defendant contends the trial court should have instructed the jury sua sponte
that a true finding defendant is an SVP would result in his indefinite
commitment, rather than the renewable, two-year commitment he would have
received under a prior version of the SVPA.
jury on the consequences of its true finding “may give them the mistaken
impression that a civil commitment is short term and allows for real review in
the future.†This contention is baseless.
“ ‘The
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant
makes a formal request.’ [Citations.]†(
115-116.) At defendant’s SVP trial, the
jury was asked to determine, based on the evidence presented by the parties,
whether defendant is an SVP and, if so, whether he was likely to reoffend if
released into the community. The trial
court properly instructed the jury on the principles of law governing its
resolution of those issues. The duration
of any commitment imposed subsequent to the jury’s findings was irrelevant to
the issues at trial. Accordingly, the
trial court was not required to instruct the jury
an SVP finding.
on Whether Defendant’s Mental Disorder is Treatable
Defendant
contends his commitment under the SVP statute violates due process where, as here,
the evidence failed to establish his mental disorder is treatable. Defendant also argues he will never achieve
mental health as an adjudicated SVP because he is not being provided
appropriate treatment. In particular, he
asserts Coalinga State Hospital, where he is confined, utilizes a five-phase
“cognitive-based therapy†which is an inappropriate treatment modality for a
patient who “is incompetent and delusional.â€
Our
Supreme Court rejected a similar “treatment based†due process challenge to the
SVPA in Hubbart, supra. There, defendant asserted that involuntary
confinement as an SVP violates due process “unless it is coupled with a
statutory guarantee of treatment providing ‘a realistic opportunity to be
cured.’ †(Hubbart, supra, 19 Cal.4th at p. 1164.) “At the outset,†the court rejected the
suggestion “that the Legislature cannot constitutionally provide for the civil
commitment of dangerous mentally impaired sexual predators unless the statutory
scheme guarantees and provides ‘effective’ treatment.†(Ibid.) Indeed, after examining high court precedent
on civil commitment of SVP’s, the court concluded “there is no broad
constitutional right of treatment for persons involuntarily confined as
dangerous and mentally impaired, at least where ‘no acceptable treatment
exists’ or where they cannot be ‘successfully treated for their
afflications.’ †(
contention is foreclosed by Hubbart.
Use of Actuarial Tests in Assessing Risk of Reoffending
Defendant
contends the prosecution experts’ reliance on actuarial tests to assess his
risk of reoffending violates due process,
was “called upon to determine the proper standard of proof in mentally
disordered sex offender proceedings.†(
the requirements of the due process clauses of the California and federal
Constitutions, so drastic an impairment of the liberty and reputation of an
individual must be justified by proof beyond a reasonable doubt.†(Ibid.)
Defendant
acknowledges Burnick, supra,
addresses the issue of the applicable burden of proof, however he claims the
use of actuarial instruments by psychologists in assessing the probability of
an SVP defendant reoffending raises the same concerns of “grievous error[]â€
that led the Burnick court to require
proof beyond a reasonable doubt for mentally disordered sex offender proceedings. This claim has no merit.
Defendant
received all the “sturdy bulwarks of procedure†set forth in
the assistance of counsel, [] the right to retain experts . . . to
perform and examination on his or her behalf, and to have access to all
relevant medical and psychological records and reports.†(Burnick,
supra, 14 Cal.3d at p. 310; § 6603, subd. (a).) Moreover, the jury was instructed the fact
that a petition to declare defendant an SVP has been filed “is not evidence the
petition is true. You must not be biased
against [defendant] just because the petition has been filed and this matter
has been brought to trial. The
Petitioner is required to prove the allegations of the petition are true beyond
a reasonable doubt.†The jury was
further instructed that the standard of proof beyond a reasonable doubt applies
to all the elements required for an SVP determination, including the finding
that “as a result of that diagnosed mental disorder, [defendant] is a danger to
the health and safety of others because it is likely that he will engage in
sexually violent predatory criminal behavior.â€
In sum, the record demonstrates defendant’s SVP proceedings and the
trial court’s instructions thereon fully comported with the requirements of due
process. Aside from his speculation as
to how the jury utilized the opinions provided by the prosecution experts,
opinions based in part on actuarial assessments, defendant has failed to establish
a factual or legal basis for reversal on this ground.
of Mental Health Protocol for Expert Evaluations
Section
6601 governs referral of persons currently incarcerated for SVP evaluation
prior to release from incarceration. It provides in pertinent part: “The State
Department of Mental Health shall evaluate the person in accordance with a
standardized assessment protocol, developed and updated by the State Department
of Mental Health, to determine whether the person is a sexually violent
predator as defined in this article. The standardized assessment protocol shall
require assessment of diagnosable mental disorders, as well as various factors
known to be associated with the risk of reoffense among sex offenders. Risk
factors to be considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental disorder.†(§ 6601, subd. (c).)
As
noted above, defendant filed a pre-trial motion to dismiss the SVP petition on
the grounds that his referral by the Department to the DA was based on
evaluations conducted pursuant to an invalid protocol. The trial court denied the motion, finding
that the 2009 standardized protocol utilized by the Department to evaluate
defendant complied with due process and met the statute’s requirements for a
valid protocol. On appeal, defendant
contends that guidelines devised by the
Department of Mental Health in 2009 do not track the specific requirements
described in Section 6601, and therefore fail to qualify as a “standardized assessment protocol.†We reject defendant’s argument because he
fails to establish prejudice based upon the use of an invalid assessment
protocol.
In
People v. Pompa–Ortiz (1980) 27
Cal.3d 519, 529 (Pompa–Ortiz), the
California Supreme Court held illegalities in criminal preliminary hearings
that are not “jurisdictional in the fundamental sense†are not reversible per
se on an appeal following trial. (
“under the appropriate standard of prejudicial error and shall require reversal
only if defendant can show that he was deprived of a fair trial or otherwise
suffered prejudice as a result of the error at the preliminary
examination.†(Ibid.) Moreover, under
irregularities. At that time, by application for extraordinary writ, the
matter can be expeditiously returned to the magistrate for proceedings free of
the charged defects.†(
p. 529, italics added.) “ ‘In
other words, a defendant who feels he has suffered error at his preliminary
hearing can seek to correct that error by filing a pretrial writ petition. If
he does not, and elects to go to trial, the error at the preliminary hearing
can only lead to reversal of the conviction if the error created actual
prejudice.’ †(People v. Ronje (2009) 179 Cal.App.4th 509, 517 (
technical irregularities in proceedings, and to SVPA proceedings.
[Citations].†(Ronje, supra, 179 Cal.App.4th at p. 517.)
In
this case, assuming arguendo the 2009
protocol is invalid as asserted by defendant, the use of evaluations based on
the protocol did not deprive the trial court of fundamental jurisdiction over
the SVPA commitment petition. (See
p. 518; accord, People v. Medina
(2009) 171 Cal.App.4th 805, 816 [concluding defendant’s argument that court
lacked jurisdiction because section 6601 evaluations were not conducted
pursuant to a valid protocol “is an argument that the court acted in excess of
its jurisdiction, rather than without fundamental jurisdictionâ€].) Moreover, as mandated by Pompa Ortiz, defendant did not seek writ relief after the trial
court denied his motion to dismiss the SVP petition for lack of valid
evaluation protocol. Accordingly, the
judgment may be reversed for use of an inadequate evaluation protocol ground
only upon a showing of prejudice. (
p. 529; Ronje, supra, 179
Cal.App.4th at pp. 517-518; People
v. Hayes, supra, 137 Cal.App.4th at p. 50.)
This
he cannot do. In analyzing the issue of
prejudice it is important to note that defendant does not contend the report
prepared by Dr. Wolknehaur or Dr. Korpi based on the 2009 protocol
was infected by legal error, i.e., “on its face, it reflects an inaccurate
understanding of the statutory criteria governing the evaluation.†(Ghilotti,
supra, 27 Cal.4th at p. 913 [noting defendant may file a pleading
challenging an SVP petition’s validity on grounds that a report is “infected by
legal errorâ€].) We also note defendant
was represented by counsel, presented his own expert witness, cross-examined
the People’s witnesses, and, after a full, public trial, a jury unanimously
found he was an SVP by proof beyond a reasonable doubt. (Cf. People
v. Hayes, supra, 137 Cal.App.4th at p. 47 [defendant failed to
demonstrate that he was prejudiced by trial court’s failure to hold a probable
cause hearing at the outset of the case] and People v. Butler (1998) 68 Cal.App.4th 421, 435 [reversal not
warranted where defendant failed to seek pretrial review of the trial court’s
failure to provide a full probable cause hearing and failed to demonstrate
prejudice thereby because “he was found to be an SVP after a trial at which he
was able to cross-examine the prosecution’s witnesses and call his own
witnessesâ€].) In sum, even assuming the
2009 protocol does not comply with section 6601, as asserted by defendant,
reversal is not warranted because defendant has failed to articulate a basis to
find the protocol used here resulted in prejudice impacting his ability to
obtain a fair trial. (See
p. 529.)
J. Proposition 83
As noted above,
the SVPA was amended in 2006 by Proposition 83, known as Jessica’s Law, to
provide that SVP’s be committed by the court to the Department of Mental Health
(department) for an indefinite period of time rather than the renewable
two-year commitment provided for under existing law. Defendant contends that the post-Proposition
83 SVPA violates his constitutional rights to due process, to be free from ex
post facto application of the law, and to equal protection. We address these claims in turn.
Defendant
contends Proposition 83 violates both his constitutional
right to due process, because it “unconstitutionally imposes on him the
burden to prove by a preponderance of the evidence that he is entitled to
release†after being committed as an SVP, and the federal constitutional
prohibition against ex post facto laws, because it is punitive and was applied
to his conduct prior to its enactment.
As defendant acknowledges, these contentions were considered and
rejected by our Supreme Court in McKee. (See McKee
(2010) 47 Cal.4th 1172, 1191, 1195.) We
are bound by the decisions of our Supreme Court. (See Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we reject defendant’s due process
and ex-post facto claims.
Last,
we turn to defendant’s contention his involuntary SVP commitment violates his
federal constitutional right to equal protection under the law because it
treats him significantly less favorably than similarly situated individuals
civilly committed under other statutes, such as mentally disordered offenders
(MDOs). In McKee, supra, the Supreme Court found SVP’s and MDOs are similarly
situated because, inter alia, both
“ ‘have been found, beyond a reasonable doubt, to suffer from mental
disorders that render them dangerous to others, . . . [a]t the end of
their prison terms, both have been civilly committed to the Department of
Mental Health for treatment of their disorders [and] . . . the
purpose of the MDO Act and the SVPA is the same: to protect the public from dangerous felony
offenders with mental disorders and to provide mental health treatment for their
disorders.’ [Citations.]â€
name="_ftnref13" title="">[13] (McKee,
supra, 47 Cal.4th at p. 1203.)
The court concluded the disparate treatment afforded SVP’s and MDOs
under the law, whereby SVP’s suffer indefinite commitment and carry the burden
of proving they should no longer be committed and MDOs are subjected to
short-term commitment renewable only if the People prove periodically that
continuing commitment is justified beyond a reasonable doubt, “raises a
substantial equal protection question that calls for some justification by the
People.â€
title="">[14] (Ibid.) Accordingly, the court remanded the case to
the trial court “to determine whether the People . . . can
demonstrate the constitutional justification for imposing on SVP’s a greater
burden than is imposed on MDO’s and NGI’s in order to obtain a release from
commitment†and stated the trial court may permit expert testimony on that
issue if appropriate. (
pp. 1208-1209.)
The
remand ordered by the Supreme Court resulted in a 21–day evidentiary hearing
and a subsequent finding by the trial court in McKee that the People met their burden to justify the disparate
treatment of SVP’s. (See
1325, 1330 (McKee II).) Moreover, in our recent opinion,
Cal.App.4th 860 (McNight), we
concluded McKee II was dispositive of
McKnight’s equal protection claim against the SVPA. We noted the Fourth District in
differently situated than MDO’s and NGI’s, and their different treatment under
the Act is necessary to further
| Description | Michael Anthony Siler appeals from an order following a jury trial finding him to be a sexually violent predator (SVP) under the Sexually Violent Predators Act (Welfare & Institutions Code[1] § 6600 et seq. (SVPA)) and committing him to the Department of Mental Health (DMH) for an indeterminate term. Defendant contends: (1) the trial court violated his Sixth Amendment right to counsel by refusing to suspend SVP until it found he had been restored to competency; (2) the trial court erred by instructing the jury on his refusal to testify; (3) the SVPA is void for vagueness; (4) there was insufficient evidence he had a qualifying diagnosed mental disorder; (5) the trial court erred by failing to instruct the jury sua sponte that they were required to unanimously agree on the qualifying diagnosed mental disorder; (6) the trial court erred by failing to instruct the jury sua sponte that an SVP commitment is for an indefinite time period; (7) the use by prosecution experts of actuarial tests in assessing his risk of reoffending violated defendant’s rights to due process; (8) the DMH used an invalid evaluation protocol to subject him to SVP proceedings; (9) amendments to the SVP laws under Proposition 83 (Jessica’s Law) violate his constitutional rights to due process and equal protection. Having considered defendant’s contentions, we conclude none have merit and, accordingly, affirm the judgment. |
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