P. v. Langhorne
Filed 7/23/13 P. v. Langhorne CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
WILLIAM LANGHORNE,
Defendant and
Appellant.
H037208
(Santa Clara
County
Super. Ct. No. 192118)
Defendant
William Langhorne appeals from an order involuntarily committing him for an
indeterminate term to the custody of the State Department of Mental Health (now
State Department of State Hospitals; hereafter the Department) after a jury
found him to be a sexually violent
predator (SVP) within the meaning of the Sexually Violent Predator Act
(SVPA). (Welf. & Inst. Code, § 6600
et seq.)
title="">[1]
On appeal,
Langhorne contends: (1) the trial court
erred by failing to remove a juror for cause; (2) he was entitled to more than
six peremptory challenges; (3) the trial court erred by denying his pretrial
motion for new evaluators, evaluations, and a new probable cause hearing; (4)
there was insufficient evidence he had tried to control his behavior but
failed; (5) an indeterminate term of
commitment violates due process, equal protection, ex post facto and double
jeopardy provisions of the state and federal Constitutions. We will affirm the judgment.
Background
A. Brief Overview of the SVPA
The SVPA
provides for the involuntary civil commitment,
for treatment and confinement, of an individual who is found by a unanimous
jury verdict (§ 6603, subds. (e) & (f)), and beyond a reasonable doubt
(§ 6604), to be a “sexually violent predator†(ibid.). The definition of an SVP is set forth in
section 6600, subdivision (a)(1) as follows:
“ ‘Sexually violent predator’ means a person who has been convicted of a
sexually violent offense against one or more victims and who has a diagnosed
mental disorder that makes the person a danger to the health and safety of
others in that it is likely that he or she will engage in sexually violent
criminal behavior.â€
The SVPA
was amended twice in 2006. Prior to
those amendments, an individual determined to be an SVP was committed to the
custody of the Department for a two-year term.
The individual’s term of commitment could be extended for additional
two-year periods. (Former § 6604, as
amended by Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by
Stats. 2000, ch. 420, § 4.)
On September 20, 2006, the Governor
signed into law Senate Bill 1128, which amended the SVPA effective
immediately. (Stats. 2006, ch. 337, §
62.) Among other changes, the amended
SVPA provided for an indeterminate term of commitment, and the references to
two-year commitment terms and extended commitments in sections 6604 and 6604.1
were eliminated. (Stats. 2006, ch. 337,
§§ 55, 56.)
Less than
two months later, voters approved Proposition 83, which amended the SVPA
effective November 8, 2006. (See Cal.
Const., art. II, § 10, subd. (a).) Like
Senate Bill 1128, Proposition 83 amended the SVPA to provide that an SVP’S
commitment term is “indeterminate.†(§
6604; see § 6604.1.) Proposition 83 also
eliminated all references to a two-year term of commitment and most references
to an extended commitment in sections 6604 and 6604.1. Thus, a person found to be an SVP under the
SVPA is now subject to an indeterminate term of involuntary civil
commitment. (People v. Whaley
(2008) 160 Cal.App.4th 779, 785-787 (Whaley).)
B. Procedural Background
We
summarized some of the procedural background of Langhorne’s case in
Cal.App.4th 225 (Langhorne). In Langhorne,
this court explained that “[o]ur summary of the pertinent procedural
background†included information from the prior opinion in People v.
Langhorne (Aug. 14, 2008, H031887) [nonpub. opn.], of which this court took
judicial notice. (Langhorne, supra, at p. 229.)
The prior summary provided as follows:
“In 1986,
Langhorne was convicted of 10 counts of lewd and lascivious conduct upon a
child under 14 years of age (Pen. Code, § 288, subd. (a)), four counts of oral
copulation with another person under 16 years of age (Pen. Code, § 288a, subd.
(b)(2)), and two counts of oral copulation with another person under 18 years
of age (Pen. Code, § 288a, subd. (b)(1)).
(People v. Langhorne, supra, H031887.)
“Langhorne
was initially committed as a sexually violent predator in 1997. He was thereafter recommitted for additional
two-year terms, with the most recent two-year term extending to November 14,
2007.
“On June 8,
2007, before the expiration of the most recent two-year commitment period, the
People filed a ‘motion to retroactively apply an indeterminate term to
respondent’ under the 2006 amendments to the SVPA. (§§ 6604, 6604.1, subd. (a).) The trial court granted the motion on July
27, 2007, and ordered Langhorne to be committed to the custody of the
[Department] for an indeterminate term as a sexually violent predator. Langhorne appealed. . . . (People v. Langhorne, supra, H031887.)†(Langhorne, supra, 179 Cal.App.4th at pp. 229-230.)
While
Langhorne’s appeal in People v.
Langhorne, supra, H031887, was pending, this court filed Whaley, supra,
160 Cal.App.4th 779, in which this court held that “an indeterminate term of
commitment imposed pursuant to section 6604.1 may not be imposed
retroactively.†(Id. at p.
784.) This court explained that before
an indeterminate term of commitment may be imposed, “a person already committed
as a sexually violent predator before the amendments to sections 6604 and
6604.1 in 2006 is entitled to an extension proceeding at which there would be a
new determination of the person’s status as a sexually violent predator.†(Id. at p. 803.)
“On March
5, 2008, two days after Whaley, supra, 160 Cal.App.4th 779, was filed,
the People requested updated evaluations from the [Department].†(Langhorne, supra, 179 Cal.App.4th at p. 232.)
Evaluations were performed by Robert M. Owen, Ph.D. and Jack Vognsen,
Ph.D. Both evaluators concluded that
Langhorne met the criteria for commitment as an SVP.
On June 6,
2008, while Langhorne’s appeal in People
v. Langhorne, supra, H031887, was still pending, the People filed a
petition to extend Langhorne’s commitment from the date his prior two-year term
expired to “ ‘the term prescribed by law.’ â€
(Langhorne, supra,
179 Cal.App.4th at p. 232
On August 14, 2008, this court issued an unpublished opinion in
reversing the order imposing a retroactive indeterminate term of commitment.
On October
10, 2008, Langhorne filed a motion to dismiss the pending petition to extend
his commitment. He argued that this
court had reversed the order committing him to an indeterminate term and that
the pending petition to extend his commitment had been filed after his “ ‘last
lawful’ †two-year commitment term had expired, leaving the trial court
without jurisdiction to proceed on the petition to extend his commitment. (Langhorne,
supra, 179 Cal.App.4th at p. 232.)
After the
trial court denied Langhorne’s motion to dismiss, he filed a petition for writ
of mandate and/or prohibition in this court.
(Langhorne, supra, 179
Cal.App.4th at p. 234.) This court
denied the petition in a published opinion issued on November 16, 2009,
concluding that “substantial evidence supports the trial court’s finding that
the People made a good faith mistake of law when they brought the motions to
automatically convert [Langhorne’s] most recent two-year commitment term[] to
[an] indeterminate term[], which resulted in [Langhorne’s] unlawful
custody.†(Id. at p. 239.)
Meanwhile,
on November 4, 2009, the trial court held a probable cause hearing, at which
both evaluators testified. The
prosecution submitted the 2008 evaluations as well as updated evaluations that
had been prepared in September of 2009.
At the end of the hearing, the trial court found probable cause to
believe that appellant had been convicted of a qualifying sexually violent
offense against at least one victim, he had a diagnosable mental disorder, and
the disorder made it likely that he will engage in predatory sexually violent
conduct if released.
On August
27, 2010, Langhorne filed a motion requesting new evaluations, conducted by new
and impartial evaluators, and a new probable cause hearing. (See In re Ronje (2009) 179
Cal.App.4th 509 (Ronje).)
name="_ftnref2" title="">[2] By order filed January 26, 2011,
the trial court denied Langhorne’s motion.
On July 15,
2011, Langhorne filed a written objection to the indeterminate term provision
of the SVPA. He alleged that imposition
of an indeterminate term would violate the constitutional guarantees of due
process and equal protection, and that it would violate the constitutional
prohibitions against ex post facto laws
and double jeopardy. The trial court
found the motion premature and indicated that the issue would be addressed if
the SVP petition was found true.
After a
jury trial, Langhorne was found to be an SVP.
On July 29, 2011, the trial court committed him to the Department for an
indeterminate term, and it denied his objections to the indeterminate term of
commitment.
title="">[4]
C. Evidence at Trial
At trial,
the disputed issues included whether Langhorne suffered from a “currently diagnosed mental disorderâ€
and whether it was “likely†that he would “engage in sexually violent criminal
behavior†if released. (§ 6600, subd.
(a)(3).) The defense took the position
that Langhorne had never suffered from pedophilia, because there was no
evidence that his victims were prepubescent.
Alternatively, the defense attempted to show that any such disorder was
in remission. The defense further argued
that while in prison and in the custody of the Department, Langhorne had not
exhibited any behaviors indicating he posed a current threat to reoffend.
1. Prosecution Case
The
prosecution presented three witnesses:
the two evaluators (Drs. Owen and Vognsen) and Langhorne himself.
a. Robert Owen, Ph.D.
Dr. Owen, a licensed clinical
psychologist, testified about Langhorne’s predicate offenses. The predicate offenses included molestation
of 17 victims over a ten-year period, ending upon his arrest in 1986. Langhorne was age 55 at the time of trial,
but between the ages of 20 and 30 at the time of the predicate offenses.
Langhorne had met most of the boys
through his positions as an assistant scout master with the Boy Scouts and a
soccer coach. Most of the boys were age
12 when the molestations began, although at least one was age 11. Langhorne’s acts of molestation included
touching or fondling the boys’ genitalia, orally copulating them, requiring
them to orally copulate him, encouraging them to look at pornography, and
encouraging them to masturbate.
Dr. Owen diagnosed Langhorne with
pedophilia. He testified that the Diagnostic
and Statistical Manual of Mental Disorders (DSM-IV) contains two criteria for a
diagnosis of pedophilia: (1) evidence
that the person has had a period of at least six months with recurring
fantasies, urges or behaviors directed towards a prepubescent child; and (2)
evidence that the person has acted on those sexual urges. The DSM-IV defines a prepubescent child as
“generally age 13 years or younger.â€
Dr. Owen explained that Langhorne
exhibited “hebephilic tendencies†and defined hebephilia as an attraction to
boys aged 13 to 16. However, he did not
diagnose Langhorne with hebephilia, since it was not a disorder listed in the
DSM-IV.
Langhorne had been molested as a
child. He had no long-term adult
relationships. He had a one-year
relationship with a woman during the time he was committing some of the
molestations, and he had a one-year relationship with a cellmate while in
prison. Langhorne claimed to have a
current sexual interest in adults (both male and female), but Dr. Owen believed
Langhorne was being deceptive.
Dr. Owen acknowledged that, through
treatment, a pedophile can learn to manage his impulses so that he will not
reoffend. Langhorne had engaged in some
treatment while in Department custody, but he had dropped out by the time of
Dr. Owen’s March 2011 interview.
Dr. Owen did not believe that
Langhorne’s pedophilia was in remission.
Rather, due to his custodial status, “It’s just the opportunity isn’t
there.†The mere fact that 25 years
had passed since Langhorne’s offenses did not make the pedophilia go away. Within the last six years, in fact, Langhorne
had reported that he needed to walk away when he saw children on television.
Dr. Owen assessed Langhorne’s risk
of reoffense on various actuarial instruments.
On the Static 99-R, Langhorne scored a two, putting him at a
“low-moderate†risk of reoffense. On the
SRA-FV, Langhorne scored in the “moderate-high†category. On the MNSOST, Langhorne scored in the “high
risk†category.
Overall, Dr. Owen believed Langhorne
presented a “substantial and well-founded risk†of reoffense. This opinion was based on the fact that his
sexual deviance lasted for a decade, the fact that he had multiple victims and
repeated acts, and the extent to which his life was focused on the sexually
deviant activities.
b. Jack Vognsen, Ph.D.
Dr. Vognsen, a psychologist, gave
Langhorne a primary diagnosis of pedophilia, but also felt Langhorne had
hebephilia. Dr. Vognsen found it hard to
believe that Langhorne’s attraction to boys had stopped. Although while in prison Langhorne had a
relationship with an adult male, this did not mean that he no longer had
pedophilic interests.
According to Dr. Vognsen,
Langhorne’s lack of volitional control was shown by the fact that he had
continued to molest boys for a long time, while knowing the acts were illegal
and that the boys objected. Although
there was no current evidence regarding Langhorne’s lack of self-control, “It
would be hard to get that type of evidence,†due to Langhorne’s custodial
status.
Dr. Vognsen testified that treatment
programs like the one offered at Coalinga State Hospital had cut reoffense by
up to 30 percent. The other classes
Langhorne had taken were not as effective.
c. Langhorne
Langhorne admitted that he had
molested at least 17 boys from 1979 until his arrest in 1986. In addition to molesting them, he would show
them pornography. He knew that his acts
were illegal and wrong, but he did not believe he was harming the boys. He felt that he was helping and teaching
them.
Langhorne denied that any of the
boys were prepubescent, except possibly one, who he had merely groped over his
clothing. According to Langhorne,
younger boys did not interest him because their genitals were not developed. In addition, they were not available to go
places with him, such as to see movies.
Langhorne claimed he stopped
participating in treatment because he did not think some of the social workers
were “very competent.†He also did not
like being critiqued for his answers. He
had recently begun taking classes, including a sexual compulsivity class and a
class called Breaking Barriers, which taught him how to make good
decisions. He knew that “[r]ecovery is a
lifelong work.â€
Langhorne claimed he was no longer
attracted to boys. He sometimes saw them
in visiting rooms but felt no attraction.
He was able to look away when provocative images of boys were displayed
on television. He acknowledged that
eliminating his risk of reoffense would take work and that loneliness was one
of his triggers. If released, Langhorne
planned to move to Georgia to live with his father and step-mother. He would continue participating in group
treatment.
2. Defense Case
a. Brian Abbott, Ph.D.
Dr. Abbott, a licensed clinical
social worker and forensic psychologist, did not believe Langhorne suffered
from pedophilia at the time of trial. He
also believed it was unlikely that Langhorne had suffered from pedophilia in
the past, since the evidence was not clear as to whether the boys were
prepubescent. If Langhorne did suffer
from pedophilia in the past, it was in remission by the time of trial.
Dr. Abbott believed that Langhorne
had only adult homosexual interests and that Langhorne had shown an ability to
maintain adult relationships by the time of trial. Thus, even if hebephilia or paraphilia NOS
(not otherwise specified) were valid diagnoses, Langhorne also did not
currently have either of those conditions.
Dr. Abbott believed the molestations
occurred not out of a “paraphilic motivation†but because Langhorne had a “maladaptive
way of dealing with psychological problems and social problems.â€
Addressing the question whether
Langhorne’s volitional control was impaired, Dr. Abbott pointed out that
Langhorne had not tried but failed to control his urges. He did note that Langhorne had declined child
pornography when it was offered to him.
Dr. Abbott did not believe there was a substantial risk that
Langhorne would reoffend.
b. James Park, Ph.D.
Dr. Park, a licensed psychologist,
likewise did not believe that Langhorne fit the SVP criteria.
Dr. Park explained that although the
DSM-IV defines pedophilia by using the age of 13 as a cut-off, it should really
say “prepubescent,†since the age of onset for puberty has been in
decline. Children aged 11 and 12 can be
in puberty. If the boys Langhorne
molested were pubescent, pedophilia would have been an incorrect
diagnosis. Dr. Park himself diagnosed
Langhorne with pedophilia in full remission.
Dr. Park did not believe there was
evidence that Langhorne lacked volitional control at the time of the offenses
or at the time of trial. Instead,
Langhorne had merely been compulsive.
Dr. Park found it significant that
Langhorne had never been found in possession of any child pornography while in
custody and that on one occasion, Langhorne had refused to take child
pornography that had been offered to him.
Dr. Park did not believe that
Langhorne needed to complete all of the phases of treatment offered through the
Department. Dr. Park believed that, at
the time of trial, Langhorne understood the wrongfulness of his prior
acts. He also had exhibited significant
life changes, including the ability to develop an intimate, continued
relationship with an adult.
c. Lay Witnesses
David
Savoy, a senior psychiatric technician at Coalinga State Hospital, had worked
on Langhorne’s unit for three years. At
the time of trial, Langhorne was participating in several groups, although he
had not been participating in phase two of SVP treatment. He found it “amazing†that Langhorne had
never been found with any contraband, including child pornography, during the
random searches conducted by Department staff.
Langhorne’s
father testified that he would allow Langhorne to live with him if Langhorne
was released.
Discussion
A. Denial of “For Cause†Challenge
to Juror No. 1
Prospective
Juror No. 18 was seated as Juror No. 1 for Langhorne’s trial. Langhorne contends the trial court erred by
failing to remove Juror No. 1 for cause, thereby violating his constitutional
rights to due process and a fair trial.
Langhorne contends that Juror No. 1 should have been removed after he
revealed, on voir dire, that he had been molested as a child and stated that
appellant reminded him of that part of his past.
1. Proceedings Below
In his
questionnaire, Juror No. 1 reported that he was 60 years old, single, and had
no children. He was employed as a
project manager. In response to the
written questions, Juror No. 1 reported that his stepfather had molested him,
that no arrest had been made, that no criminal proceedings had been instituted,
and that he had not seen any mental health professional for treatment in
conjunction with the molestation.
Juror No. 1
was called into the jury box on July 19, 2011, just after Langhorne had
exhausted his six peremptory challenges.
The trial court asked whether Juror No. 1 could think of any reason why
he could not be a fair and impartial juror in this matter. Juror No. 1 replied, “I cannot.†He indicated there was nothing specific he
wanted to discuss.
The trial
court noted that Juror No. 1 had not filled out the questionnaire completely –
he had not answered the last three questions and had not signed it.
here.†The trial court gave Juror No. 1
time to complete the questionnaire, then resumed questioning him.
The trial
court noted that Juror No. 1 had reported that he or someone he knew had been
the victim of a sexual assault or molestation, and it asked if “that is in any
way going to influence your decision-making in this case.†Juror No. 1 replied, “I don’t believe it
will.†The trial court asked, “You can
push that to the side?†Juror No. 1
answered, “Yes.†The trial court asked,
“It’s not going to resurrect its ugly head in terms of what you are told or
your experiences that’s not part of this?â€
Juror No. 1 stated, “I believe I would have it under control.†Juror No. 1 confirmed he would be
objective. In answering further
questions from the trial court, Juror No. 1 confirmed he had “[n]o spillovers,â€
“[n]o axes to grind,†“[n]o hidden agendas,†and “[n]o vendettas.†Juror No. 1 also confirmed he understood
the burden of proof was beyond a reasonable doubt, that the SVPA petition was
presumed to be not true, and that the people had to “prove the case beyond a
reasonable doubt about all three elements.â€
Trial
counsel then asked Juror No. 1 a series of questions. Juror No. 1 explained that he had been
molested between the ages of eight and 17 and that the molestation had gone on
for “a long period of time.†Trial counsel
noted that the jury was “going to hear evidence about prior offenses†and asked
how that would impact Juror No. 1’s “ability to resolve this issue.†Juror No. 1 replied, “I think it’s going to,
obviously, enter my mind.†He continued,
“However, I keep hearing the judge, and I feel in my heart that I can push
aside the issues that were brought up in my childhood. It’s been long ago enough that it is not an
issue with me now. I will be honest and
tell you that – and this is probably a deal breaker – but just looking at him
brings back memories for me. Okay. And so it’s starting to resurrect certain
things that happened so many years ago.
So I think I have trouble pushing that off to one side.â€
Trial
counsel asked for clarification. Juror
No. 1 explained, “What I am saying is, the feelings that I had when I was a
child somehow he reminds me of those feelings.â€
He further explained, “His presence reminds me of the events that took
place.†Trial counsel asked, “And is
that going to impact on your ability to be fair and impartial?†Juror No. 1 responded, “I would like to think
not.†He continued, “I would like to
think I could push those aside and I believe I can.†He later added, “The feelings may get
resurrected. I don’t know if they will
or not. I’d like to think I could keep
them under control.â€
Trial
counsel concluded his voir dire by asking, “Do you think you can be fair and
impartial to both sides at this time given those events and the appearance of
[Langhorne]?†Juror No. 1 replied, “I think
I can.â€
The
prosecution declined to question Juror No. 1, and the jury was sworn.
The
following day, July 20, 2011, trial counsel requested to put some “matters from
the jury selection process . . . on the record.†He then explained that the previous day, he
had “approached at the sidebar†and requested additional peremptory
challenges. The trial court confirmed
that it had denied that request. Trial
counsel reiterated his request for additional peremptory challenges, and the
trial court again denied it.
Trial
counsel then stated that he “also had wanted to preserve one challenge
regarding cause,†regarding Juror No. 1.
He specified, “We questioned [Juror No. 1] for cause yesterday, and it
is our request to have him removed as a juror . . . for cause. The reason is that [Juror No. 1] indicated
that he has been a victim of child molest himself that lasted, I think,
approximately nine years from about age 8 to age 17 by his stepfather. While [Juror No. 1] indicated that he can put
that aside and try to be fair, he also indicated that while he was looking at
my client[,] my client’s physical appearance was causing some of his previous
memories or emotions to surface because of the way he looked. And given that information, your honor, it
appears to be clear that he is not going to be impartial and fair in this
process, notwithstanding his comments on that issue, and I would ask that he be
removed for cause.â€
The
prosecution submitted the matter without argument. The trial court ruled as follows: “Okay.
Well, in any event, bottom line is I believe him. I watched both his verbal responses as well
as his non-verbal responses. I’m quite
confident that he would be a fair and impartial juror. [¶]
What you say is true, but he also indicated that he would . . . in
essence, set aside his personal emotions and be objective in evaluating the
case. And, frankly, I believe him. [¶] So
that request is rejected.â€
2. Analysis
“Assessing
the qualifications of jurors challenged for cause is a matter falling within
the broad discretion of the trial court.
[Citation.]†(People v. Weaver
(2001) 26 Cal.4th 876, 910 (Weaver).) “In according deference on appeal to trial
court rulings on motions to exclude for cause, appellate courts recognize that
a trial judge who observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s tone of voice,
apparent level of confidence, and demeanor), gleans valuable information that
simply does not appear on the record.
[Citation.]†(People v.
Stewart (2004) 33 Cal.4th 425, 451.)
“ ‘[T]he manner of the juror while testifying is oftentimes more
indicative of the real character of his [or her] opinion than his [or her]
words. That is seen below, but cannot
always be spread upon the record. Care
should, therefore, be taken in the reviewing court not to reverse the ruling
below upon such a question of fact, except in a clear case.’ †(Wainwright v. Witt (1985) 469 U.S.
412, 428, fn. 9 (Wainwright).)
“A trial
court should sustain a challenge for cause when a juror’s views would ‘prevent
or substantially impair’ the performance of the juror’s duties in accordance
with the court’s instructions and the juror’s oath. [Citations.]â€
(People v. McDermott (2002) 28 Cal.4th 946, 981-982 (McDermott).) “On appeal, we will uphold a trial court’s
ruling on a challenge for cause by either party ‘if it is fairly supported by
the record, accepting as binding the trial court’s determination as to the
prospective juror’s true state of mind when the prospective juror has made
statements that are conflicting or ambiguous.’ [Citations.]†(Id. at p. 982.)
Langhorne’s
primary argument is that Juror No. 1 should have been removed from the jury due
to the implied bias stemming from his past experience as a victim of child
molestation. (See Code of Civ. Proc., §
225, subd. (b)(1) [jurors may be challenged for cause based on general
disqualification, implied bias, or actual bias].)
“Implied
bias†is “a presumption of bias that could not be overcome by a finding that
[the juror] could be fair and impartial.
Under California law, a juror may be excused for ‘implied bias’ only for
one of the reasons listed in Code of Civil Procedure section 229, ‘and for
no other.’ (Code Civ. Proc. §
229.)†(People v. Ledesma (2006)
39 Cal.4th 641, 669-670 (Ledesma).)
The fact that a juror has been the victim of a crime similar to the one
charged is not listed in Code of Civil Procedure section 229 as a ground for
implied bias.
title="">[6] The
statute does specify that a juror may be excused for implied bias if he or she
has “a state of mind . . . evincing enmity against, or bias towards, either
party†(Code of Civ. Proc., § 229, subd. (f)), although that has
traditionally been the definition of actual
bias. (See former Pen. Code, § 1073
[defining “actual bias†as “the existence of a state of mind on the part of the
juror in reference to the case, or to either of the parties, which will prevent
him from acting with entire impartiality and without prejudice to the substantial
rights of either partyâ€].)
Langhorne argues that bias should have been
implied in this case because Juror No. 1 had been molested as a child and
Langhorne was alleged to be an SVP based, in part, upon his commission of child
molestation crimes. However, Langhorne
fails to cite any cases holding that a juror must always be excused for
implied bias if the juror was the victim of a crime similar to the one
charged. As we will explain, case law is
clear that each case must be considered on its facts.
The
California Supreme Court has noted that under federal case law, “bias may be
implied or presumed from the ‘potential for substantial emotional involvement’
inherent in certain relationships.
[Citations.]†(
who worked in the jail system where the defendant was housed].) Under federal case law, a juror’s bias is
implied only in “rare†and “extreme situations.†(Fields
v. Brown (9th Cir. 2007) 503 F.3d 755, 768, 770 (Fields); see also Gonzales v.
Thomas (10th Cir. 1996) 99 F.3d 978, 987 (Gonzales).)
As
Langhorne points out, cases have recognized that “[t]he probability of bias is
substantial when a juror has been victimized by the same type of crime.†(People
v. Diaz (1984) 152 Cal.App.3d 926, 939 (Diaz).) “As a result of such a similar experience,
bias may be conscious and the juror may attempt to persuade the other jurors
defendant is guilty regardless of the evidence.
More likely, however, the prior experience may cause unconscious
bias. Only individuals of strong
character would not be affected in some way by their previous, identical
experience. Subconsciously, the juror
may tend to favor the prosecution because of emotional and psychological bonds
perceived to exist with the defendant’s victim.
Indeed, the juror may sincerely try to be impartial, and yet be unable
to do so. [Citation.]†(Ibid.)
However,
the Ninth Circuit has cautioned against “ ‘formulating categories of
relationships which bar jurors from serving in certain types of trial.’ †(Fields,
supra, 503 F.3d at p.
772.) In Fields, the Ninth Circuit refused to categorically imply bias to a
juror whose close relative had been the victim of a crime similar to the
charged offense. (Id. at p. 774, fn. omitted [“Being the spouse of a rape victim is
not, in and of itself, such an ‘extreme’ or ‘extraordinary’ situation that it
should automatically disqualify one from serving on a jury in a case that
involves rape.â€].) The
determination of implied bias will depend on all of the circumstances of a
particular case. It noted that in most
cases where it had held that jurors should have been excused for cause because
their relatives had been victims of similar crimes, the jurors had concealed
information on voir dire or given equivocal responses to questions about their
ability to remain impartial. (See
and cases cited.
title="">[7])
The federal
courts have also refused to categorically imply bias to a juror who had been the victim of a crime similar to the charged
offense. In Gonzales, supra, 99 F.3d 978, the Tenth Circuit refused to hold
that “juror bias must be presumed in a rape trial if the juror has been a rape
victim.†(Id. at p. 989.) “To hold
that no rape victim could ever be an impartial juror in a rape trial would, we
think, insult not only all rape victims but also our entire jury system, which
is built upon the assumption that jurors will honestly try ‘to live up to the
sanctity of [their] oath.’ [Citation.]â€
(Id. at pp. 989-990.)
As in
should be made on a case-by-case basis.
A court considering whether to remove a juror for implied bias should
focus “on the particular juror’s experience,†by looking at “how the experience
affected the juror and what similarities exist between the juror’s experience
and the case at trial.†(
In
superficial similarities†between the juror’s experience and the charged
offense – in both situations, the victim knew the rapist, had engaged in
consensual social activity with him, and had consumed alcohol with him. (Gonzales,
supra, 99 F.3d at p. 990.) However, there were also some significant
differences. First, the victim of the
charged offense had been knocked unconscious, whereas the juror had not been
subjected to similar violence. Second,
the juror had not sought any counseling and indicated that “the rape did not
have a detrimental life-changing impact on her life.†(Ibid.) Third, because the juror had never reported
her rape, she “never underwent the experience of being the accuser in a case
where the alleged rapist was claiming she consented to sexual intercourse.†(Id.
at p. 991.) Moreover, the juror’s rape
had occurred about 25 years earlier, and the passage of time weighed against a
finding of implied bias. (
Our Supreme
Court has likewise made it clear that a juror need not always be removed for
implied bias simply because he or she has been the victim of a crime similar to
the one charged. In People v. Farnam (2002) 28 Cal.4th 107 (Farnam), the defendant faced a robbery special circumstance. Although four jurors had been robbed during
the trial, the trial court did not err by failing to remove the jurors, because
each of them had “expressed an understanding that the purse snatching had no
relation to the crimes allegedly involving defendant, and each indicated that
she could be fair.†(
statement that ‘still things come into your mind of what happened to you and
you can only try to visualize what happened to the other person,’ †the
trial court could find, based on the circumstances and the juror’s demeanor,
that she had not “formed emotional and psychological bonds with the victim such
that she would be unable to remain objective during defendant’s trial.†(Ibid.)
Under the
cases reviewed above, it is clear that the trial court was not required to
grant Langhorne’s challenge for cause to Juror No. 1 simply because Juror No. 1
had been the victim of child molestation.
Further, as we shall explain, Juror No. 1’s particular circumstances did
not require the trial court to imply or presume he would be biased. (See Gonzales,
supra, 99 F.3d at p. 990.)
First,
Juror No. 1’s experiences had occurred over 40 years earlier, diminishing the
potential for bias. (See
compare Burton v. Johnson (10th Cir.
1991) 948 F.2d 1150, 1159 [in prosecution for spousal abuse, bias was implied
where “the juror, at the time of trial, was living in an abusive situation,
fearing her husband’s violent temper even at the time she was testifying in
chambersâ€].)
Second, the
circumstances of Juror No. 1’s molestation were different from the molestations
committed by Langhorne. Juror No. 1 was
molested by his stepfather, whereas Langhorne had molested boys he met through
the Boy Scouts and youth soccer. Any
“superficial similarities†between Juror No. 1’s experience and Langhorne’s
offenses are insufficient to disqualify Juror No. 1 as a matter of law. (Gonzales,
supra, 99 F.3d at p. 990.)
Third, and
significantly, Langhorne was not on trial for the child molestation offenses,
but for a determination of whether he had a currently diagnosed mental disorder
and was currently dangerous. It was
clear Langhorne had already been found guilty and punished for the underlying
offenses. None of the victims testified
at Langhorne’s SVP trial. Thus, there
was no danger that Juror No. 1 would “form[] emotional and psychological bonds
with the victim such that []he would be unable to remain objective during
defendant’s trial.†(
142.) Further, like the juror in
counseling, and his testimony indicated that the molestations “did not have a
detrimental life-changing impact on [his] life.†(Gonzales,
supra, 99 F.3d at p. 990.)
Finally,
Juror No. 1 was forthcoming about his past experience, providing an opportunity
for “follow-up†about whether he could be impartial. (Fields,
supra, 503 F.3d at p. 774; compare Diaz,
supra, 152 Cal.App.3d at p. 938 [juror’s concealment of fact that she had
been the victim of a similar offense precluded any inquiry about the incident
on voir dire].)
As the
safeguard†against actual bias is voir dire, and in most cases, juror bias will
be identified through “truthful disclosure of information during voir
dire.†(Fields, supra, 503 F.3d at p. 772.) Here, because Juror No. 1
revealed his past experience during voir dire, the trial court was able to
evaluate Juror No. 1’s sincerity and credibility regarding his potential
bias. Importantly, we confront a cold
record, whereas the trial court observed Juror No. 1’s tone of voice and
demeanor. After listening to Juror No.
1’s ambiguous and conflicting responses and observing his manner, the trial
court determined that Juror No. 8 would be able to “ ‘faithfully and
impartially apply the law.’ †(Weaver, supra, 26 Cal.4th at p.
910.) Substantial evidence supports this
determination: Juror No. 1 stated that
he did not believe that his prior experiences were going to influence his decision-making,
that he could “push that to the side,†that he believed he “would have it under
control,†and that he would be
objective. Although Juror No. 1 also
acknowledged that his past experiences would enter his mind and that looking at
Langhorne brought back memories, he reaffirmed that he believed he could “push
those aside.â€
In sum, the
transcript of voir dire does not show a “ ‘clear case’ †of bias. (Wainwright, supra, 469 U.S. at p.
428, fn. 9.) Therefore, we defer to the
trial court’s determination that Juror No. 1 was not biased. (McDermott, supra, 28 Cal.4th at pp.
981-982.) We conclude the trial court
did not abuse its discretion in denying Langhorne’s “for cause†challenge to
Juror No. 1. (Weaver, supra, 26
Cal.4th at p. 910.)
B. Number of Peremptory
Challenges
Langhorne
asserts that he was denied a fair trial because the trial court denied his
request for 20 peremptory challenges and only allowed him six peremptory
challenges.
1. Background
As noted
above, Langhorne requested additional peremptory challenges during jury selection. Trial counsel explained that the basis for
the request was “that [Langhorne] is subject to an indeterminate term of
commitment in the state hospital, and like any criminal defendant in perhaps a
three-strikes or a homicide case, he essentially has an exposure to life in
custody.†Trial counsel argued that the
additional peremptory challenges were “appropriate to protect his rights to due
process, effective assistance of counsel, and impartial jury, and a right to a
fair trial under the 6th and 14th amendments of the U.S. Constitution as well
as the California Constitution article I sections 7 and 15.â€
2. Analysis
In general,
a defendant in a criminal case is entitled to 10 peremptory challenges. (Code
Civ. Proc., § 231, subd. (a).) If the
charged offense is punishable with death or life in prison, the number of
peremptory challenges to which the defendant is entitled is increased to
20. (Ibid.) In civil cases, and in criminal cases where
the offense is punishable with a maximum term of imprisonment of 90 days or
less, each party generally is entitled to six peremptory challenges. (Id.,
subds. (b) & (c).)
In
519 (Calhoun), the court concluded
“that a proceeding under the SVPA is a special proceeding of a civil nature,
and therefore pursuant to subdivision (c) of section 231, defendant was
entitled to six peremptory challenges.â€
(Id. at p. 527; cf. People
v. Stanley (1995) 10 Cal.4th 764, 807-808 [proceeding to determine mental
competence to stand trial for a capital crime is civil in nature and defendant
is entitled to six peremptory challenges].)
The Calhoun court relied in
part on this court’s decision in People
v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, where this court
concluded that because a commitment under the SVPA is a special proceeding of a
civil nature, civil discovery under the Code of Civil Procedure is generally
available in SVPA proceedings. (Id.
at p. 988 [discussing former Code of Civil Procedure section 2016 et seq.]; see
Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1166 (
commitment scheme covering persons who are to be viewed, ‘not as criminals, but
as sick persons’ â€].) The
arguments that additional peremptory challenges were required in SVP cases
under principles of due process and equal protection. (Calhoun,
supra, at pp. 528-530.)
Langhorne argues that “in light of the
amendments to the SVP law providing for an indeterminate term of commitment,
the conclusion in Calhoun is
inapt,†particularly with respect to the equal protection analysis. (See Calhoun,
supra, 118 Cal.App.4th at p. 529 [“a person facing a commitment
proceeding under the SVPA is simply not ‘similarly situated’ to a person facing
criminal prosecutionâ€].)
We do not
agree. As we shall explain with respect
to Langhorne’s ex post facto and double jeopardy claims, the amended SVPA is
not punitive in nature; it remains “a nonpenal ‘civil commitment scheme
designed to protect the public from harm.’ [Citation.]†(Hubbart, supra, 19 Cal.4th at p.
1172, quoting Kansas v. Hendricks (1997) 521 U.S. 346,
361 (Hendricks).) “After Proposition 83, it is still the case
that an individual may not be held in civil commitment when he or she no longer
meets the requisites of such commitment.
An SVP may be held, as the United States Supreme Court stated under
similar circumstances, ‘as long as he is both mentally ill and dangerous, but
no longer.’ [Citation.]†(McKee
I, supra, 47 Cal.4th at p. 1193.)
“[E]ven with indefinite commitment and alterations in the burden and
standard of proof, the commitment authorized by the [amended SVPA] is not
excessive and is designed to last only as long as that person meets the
definition of an SVP.†(
As “the
Proposition 83 amendments do not make the [SVPA] punitive†(
they do not require us to reject the conclusion reached in Calhoun. Accordingly,
Langhorne’s request for 20 peremptory challenges was properly denied by the
trial court.
Langhorne
also contends that the trial court should have given him at least one
additional peremptory challenge so that he could use it to remove Juror No.
1. “To support a claim that he is
constitutionally entitled to more peremptory challenges than are provided by
statute, a defendant must establish ‘at the very least that in the absence of
such additional challenges he is reasonably likely to receive an unfair trial
before a partial jury.’
[Citations.]†(
671.) We have already concluded that the
trial court did not err by failing to excuse Juror No. 1 on the basis of actual
or implied bias. Thus, Langhorne’s claim
that he should have been given an additional peremptory challenge “necessarily
fails as well.†(People v. Lewis (2008) 43 Cal.4th 415, 495.)
C. Denial of Pretrial Motion
for New Evaluators, Evaluations, and Probable Cause Hearing
Langhorne
contends the trial court erred by denying his pretrial request for new
evaluators, new evaluations, and a new probable cause hearing. He contends the error violated his state and
federal rights to due process.
1. Background
On June 6,
2008, the People filed a petition to extend Langhorne’s commitment. (Langhorne, supra, 179 Cal.App.4th at p. 232; see former § 6604 [Stats. 2000, ch.
420, § 3, eff. Sept. 13, 2000].) The
petition was supported by evaluations of Langhorne performed in March 2008 by
Drs. Owen and Vognsen, who concurred that defendant met the criteria for
commitment as an SVP. (See § 6601.)
In August
2008, California’s Office of Administrative Law (OAL) determined that certain
provisions in the 2007 version of the Clinical Evaluator Handbook and
Standardized Assessment Protocol should have been adopted pursuant to the APA
and therefore constituted an invalid “underground regulation.†(Ronje,
supra, 179 Cal.App.4th at p. 515.)
The OAL determination did not “address the assessment protocol’s
accuracy or reliability in determining whether the person is an SVP as defined
in the SVPA.†(Id. at p. 520.)
In February
2009, the Department promulgated emergency regulations containing SVP evaluator
requirements, in compliance with the APA.
(See Cal. Code Regs., tit. 9, § 4005.) In September of 2009, Drs. Owen and Vognsen
prepared updated evaluations based on the 2009 protocol; they again concurred
that defendant met the criteria for commitment as an SVP. At the November 4, 2009 probable cause
hearing, the prosecution submitted the updated evaluations, and Drs. Owen and
Vognsen both testified.
On November
19, 2009, the Fourth District filed Ronje,
supra, 179 Cal.App.4th 509, upholding
the OAL’s determination that the prior assessment protocol was an invalid
underground regulation. (
court held that the error was not “ ‘jurisdictional in the fundamental
sense,’ †and thus that dismissal was not required. (Id.
at p. 517, quoting People v. Pompa-Ortiz
(1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).) Because Ronje was “making a pretrial
challenge to the evaluations†via a petition for writ of habeas corpus, he was
not required to show actual prejudice to obtain relief. (Ronje,
supra, at p. 518.) Instead, the appropriate
remedy was “to remand the matter to the trial court with directions to (1)
order new evaluations of Ronje using a valid assessment protocol, and (2)
conduct another probable cause hearing under section 6602, subdivision (a)
based on those evaluations.†(
In August
2010, Langhorne filed a motion for new
evaluations, conducted by new evaluators, and a new probable cause hearing,
based on Ronje, supra, 179
Cal.App.4th 509. The People opposed the
request. The People asserted that the
probable cause hearing cured any Ronje
error, that Ronje did not require new
evaluations in every case, that the updated evaluations satisfied
bias affecting the updated evaluations, and that evaluations under section 6601
(initial) and section 6603 (updated) are equivalent.
The trial
court conducted a hearing on the motion on December 29, 2010, took the matter
under submission, and issued its decision denying the motion on January 26,
2011.
an invalid assessment protocol has been cured by subsequent judicial
proceedings.†The court further found
that “[a]ny procedural or substantive challenge to the preliminary
administrative determinations based on the assessment protocol is now untimely,
for those determinations have been superseded by the court’s probable cause
findings.†The court also concluded that
neither Ronje nor
new evaluations or a new probable cause hearing.
2. Analysis
Section
6601, subdivision (c), requires the Department to develop and update a
“standardized assessment protocol†(protocol).
The protocol must “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.†(Ibid.) Involuntary
commitment proceedings under the SVPA are initiated only after two professional
mental health evaluators, designated by the Director of State Hospitals, agree
that an individual potentially subject to the SVPA meets the criteria for being
a SVP based upon the protocol.
(§ 6601, subds. (c)-(f), (h); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894,
903-904, 909.)
“The
purpose of this evaluation is not to identify SVP’s but, rather, to screen out
those who are not SVP’s. ‘The
Legislature has imposed procedural safeguards to prevent meritless petitions
from reaching trial. “[T]he requirement
for evaluations is not one affecting disposition of the merits; rather, it is a
collateral procedural condition plainly designed to ensure that SVP proceedings
are initiated only when there is a substantial factual basis for doing so.â€
’ [Citation.] The legal determination that a particular
person is an SVP is made during the subsequent
the screening process. [Citation.]†(People
v. Medina (2009) 171 Cal.App.4th 805, 814 (Medina).)
Nothing in
is entitled to new evaluators, new evaluations, and a new probable cause
hearing. In Ronje, new evaluations and a new probable cause hearing were
appropriate because Ronje had never been evaluated pursuant to a valid
protocol. As that court explained, new
evaluations and a new probable cause hearing based on those new evaluations would
“cure the underlying error.†(
In the present case, updated evaluations of Langhorne were subsequently
prepared by both evaluators using the valid 2009 protocol, and they were
submitted at the probable cause hearing.
Further, in
Ronje, the matter was a pretrial
challenge, which affected the remedy and showing necessary for relief. The Fourth District explained that when
evaluations are conducted pursuant to an invalid assessment protocol, “ ‘[t]he
right to relief without any showing of prejudice will be limited to pretrial
challenges of irregularities.’ †(
Once a defendant proceeds to trial, reversal will be predicated on a
showing that “ ‘the error created actual prejudice.’ †(Ibid.;
cf. Medina, supra, 171 Cal.App.4th at p. 820 [to satisfy prejudice prong of
ineffective assistance claim, defendant was required to show that with new
evaluations, “he would have been screened out or otherwise would have been
found not to be an SVPâ€].)
In the
present case, Langhorne has not shown any actual prejudice stemming from the
fact that the initial recommitment evaluations were conducted pursuant to the
invalid 2007 protocol. We first note
that there was nothing inherently wrong about the 2007 protocol other than
the fact it was not properly promulgated, and that the 2009 protocol
contains relatively limited requirements for SVP assessments. (See Cal. Code Regs., tit. 9,
§ 4005.) More importantly, updated
evaluations of Langhorne were subsequently prepared by both evaluators using
the valid 2009 protocol. Since both
evaluators prepared updated evaluations using the 2009 protocol, any errors in
the 2008 evaluations were cured.
(See Ronje,
Further,
the trial court found probable cause to believe Langhorne was a SVP after
hearing testimony and considering the updated evaluations. Langhorne fails to show how the outcome of
the probable cause hearing would have been different if the initial evaluations
had been conducted pursuant to a valid protocol. Moreover, the jury found Langhorne was an SVP
after a trial, and “[t]here is no indication in this record†that the initial
evaluations, conducted pursuant to the 2007 protocol, “affected [Langhorne’s]
trial.†(Pompa-Ortiz, supra, 27 Cal.3d at p. 530.) In short, Langhorne is not entitled to any
relief based on Ronje.
D. Evidence Langhorne “Tried
and Failed to Control His Behaviorâ€
Langhorne
contends there is insufficient evidence to support his commitment because there
was no substantial evidence that he tried and failed to control his behavior.
He contends that without such evidence, the commitment violates due process.
The United
States Supreme Court held in Hendricks, supra, 521 U.S. 346, that the
definition of “mental abnormality†in the Kansas Sexually Violent Predator Act
satisfied substantive due process requirements.
(Id. at pp. 356-360.) The
court reasoned that the Kansas statutory scheme “requires a finding of future
dangerousness, and then links that finding to the existence of a ‘mental
abnormality’ or ‘personality disorder’ that makes it difficult, if not
impossible, for the person to control his dangerous behavior. [Citation.]â€
(Id. at p. 358.) The court
concluded that the requirement in the Kansas statutory scheme “of a ‘mental
abnormality’ or ‘personality disorder’ is consistent with the requirements
of . . . other statutes that [it has] upheld in that it narrows the class
of persons eligible for confinement to those who are unable to control their
dangerousness.†(Id. at p. 358.)
In Kansas
v. Crane (2002) 534 U.S. 407 (Crane), the United States Supreme
Court again considered the Kansas Sexually Violent Predator Act and explained
that Hendricks, supra, 521 U.S. 346, did not set forth a
“requirement of total or complete lack of control.†(Crane, supra, at p. 411.) The Crane court reasoned: “an absolutist approach is unworkable. [Citations.]
Moreover, most severely ill people–even those commonly termed ‘psychopaths’–retain
some ability to control their behavior. [Citations.] Insistence upon absolute lack of control
would risk barring the civil commitment of highly dangerous persons suffering
severe mental abnormalities.†(Id.
at pp. 411-412.)
The Crane
court emphasized, however, that the federal constitution did not permit
commitment under the Kansas statute “without any lack-of-control
determination†being made. (Crane,
supra, 534 U.S. at p. 412.) As to
the requisite amount of lack of control, the Crane court explained that
“in cases where lack of control is at issue, ‘inability to control behavior’
will not be demonstrable with mathematical precision. It is enough to say that there must be proof
of serious difficulty in controlling behavior.
And this, when viewed in light of such features of the case as the
nature of the psychiatric diagnosis, and the severity of the mental abnormality
itself, must be sufficient to distinguish the dangerous sexual offender whose
serious mental illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted in an ordinary
criminal case. [Citations.]†(Id. at p. 413.)
In People
v. Williams (2003) 31 Cal.4th 757 (Williams), the California Supreme
Court addressed whether a separate jury instruction regarding the issue of control
was constitutionally required after Crane, supra, 534 U.S. 407, in order
to commit an individual under California’s SVPA. At trial, the defendant had sought, but was
refused, an instruction that “ ‘the diagnosed mental disorder must render the
person unable to control his dangerous behavior.’ †(Williams, supra, at p. 763.) On appeal, the Williams defendant asserted that his commitment was invalid because
the language of the SVPA did not include “the federal constitutional
requirement of proof of a mental disorder that causes ‘serious difficulty in
controlling behavior’ [citation], and the jury was not specifically instructed
on the need to find such impairment of control.†(Id. at p. 764.) The California Supreme Court disagreed. The court explained that “[b]y its express
terms, the SVPA limits persons eligible for commitment to those few who have
already been convicted of violent sexual offenses . . . (§ 6600, subd. (a)(1)),
and who have ‘diagnosed mental disorder[s]’ (ibid.) ‘affecting the emotional
or volitional capacity’ (id., subd. (c)) that ‘predispose[ ] [them] to
the commission of criminal sexual acts in a degree constituting [them]
menace[s] to the health and safety of others’ (ibid.), such that they
are ‘likely [to] engage in sexually violent criminal behavior’ (id.,
subd. (a)(1)). This language inherently
encompasses and conveys to a fact finder the requirement of a mental disorder
that causes se
| Description | Defendant William Langhorne appeals from an order involuntarily committing him for an indeterminate term to the custody of the State Department of Mental Health (now State Department of State Hospitals; hereafter the Department) after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1] On appeal, Langhorne contends: (1) the trial court erred by failing to remove a juror for cause; (2) he was entitled to more than six peremptory challenges; (3) the trial court erred by denying his pretrial motion for new evaluators, evaluations, and a new probable cause hearing; (4) there was insufficient evidence he had tried to control his behavior but failed; (5) an indeterminate term of commitment violates due process, equal protection, ex post facto and double jeopardy provisions of the state and federal Constitutions. We will affirm the judgment. |
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