P. v. Willmes CA6 ( 2013 )

Filed 7/25/13 P. v. Willmes CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H039082
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 211178)
v.
HERBERT ANTHONY WILLMES,
Defendant and Appellant.
I. INTRODUCTION
In 2009, defendant Herbert Anthony Willmes was committed for an indeterminate
term to the State Department of Mental Health (now State Department of State Hospitals;
hereafter the Department) after a jury found him to be a sexually violent predator (SVP)
within the meaning of the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code,
§ 6600 et seq.).1 Willmes appealed from the judgment contending, inter alia, that an
indeterminate term of commitment violates equal protection. This court reversed the
judgment committing Willmes for an indeterminate term and remanded the matter to the
trial court for reconsideration of his equal protection argument in light of People v.
McKee (2010) 47 Cal.4th 1172 (McKee I), and the resolution of proceedings on remand
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
in that case. (People v. Willmes (Nov. 30, 2010, H034656) [nonpub. opn.] (Willmes).)2
This court also ordered that the trial court suspend further proceedings in Willmes’s case
pending finality of the proceedings on remand in McKee I.
After further trial court proceedings were held on remand in McKee I, the
defendant appealed and Division One of the Fourth Appellate District issued its opinion
determining that substantial evidence supports the trial court’s finding that disparate
treatment of SVP’s is warranted. (People v. McKee (2012) 207 Cal.App.4th 1325, 1330-
1331 (McKee II), review denied Oct. 10, 2012, S204503.) On November 9, 2012, after
the California Supreme Court denied review of McKee II, the trial court in the instant
case again ordered Willmes committed to the Department for an indeterminate term
under the SVPA.
In the present appeal, Willmes contends that a commitment for an indeterminate
term under the SVPA violates the equal protection clauses of the federal and state
Constitutions.
As we will discuss, we conclude that Willmes’s equal protection claim lacks merit
for the reasons stated in McKee II. We will therefore affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2007, the People filed a petition to commit Willmes under the SVPA.
Willmes’s qualifying offense involved the 11-year-old daughter of his girlfriend. In
1992, when Willmes was 19, the daughter reported to the police that she and her mother
had been living with Willmes. Willmes took showers with the daughter and washed her
breasts, vaginal area, and buttocks with his hands or a wash cloth for such a long period
of time that it became painful to her; bit her buttocks leaving a mark that would last up to
2
By order of February 20, 2013, this court has taken judicial notice of the opinion
in defendant’s prior appeal, Willmes, supra, H034656. Our summary of the factual and
procedural background includes some information that we have taken from the prior
opinion.
2
a week; inserted his finger in her rectum; yelled at her to stand still or commanded her to
spread her legs to facilitate the contact; threatened to spank her if she did not stay in the
shower; kept her from leaving the shower; and had sexual intercourse in the shower with
the mother while the daughter was present. Willmes was convicted of violating Penal
Code section 288, subdivision (a) as a result of his conduct with the daughter.
In August 2009, a jury found the petition alleging that Willmes was an SVP within
the meaning of section 6600 to be true. The trial court thereafter filed an order
committing Willmes to the Department for appropriate treatment and confinement for an
indeterminate term pursuant to section 6604.
In his prior appeal, Willmes contended, among other things, that an SVP is
similarly situated with a person committed as a mentally disordered offender (MDO;
Pen. Code, § 2960 et seq.) and a person found not guilty of a criminal offense by reason
of insanity (NGI; Pen. Code, § 1026), and that the commitment of an SVP for an
indeterminate term violates equal protection. This court reversed the judgment and
remanded the case to the trial court “for reconsideration of Willmes’s equal protection
argument in light of People v. McKee (2010) 47 Cal.4th 1172, and the resolution of the
proceedings on remand in that case (id. at pp. 1208-1211), including any proceedings in
the Superior Court of San Diego County in which McKee may be consolidated with
related matters.” (Willmes, supra, H034656, at p. 27.) This court further ordered the trial
court to “suspend further proceedings in this case pending finality of the proceedings on
remand in McKee. ‘Finality of the proceedings’ shall include the finality of any
subsequent appeal and any proceedings in the California Supreme Court.” (Willmes,
supra, H034656, at p. 27.)
On November 9, 2012, after the California Supreme Court denied review of
McKee II, the trial court in the instant matter again ordered Willmes committed to the
Department for an indeterminate term under the SVPA. Willmes filed a notice of appeal.
3
III. DISCUSSION
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.”
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
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under the SVPA is now subject to an indeterminate term of involuntary civil
commitment. (People v. Whaley (2008) 160 Cal.App.4th 779, 785-787.)
B. Equal Protection
Willmes contends that a commitment for an indeterminate term under the SVPA
violates the equal protection clauses of the federal and state Constitutions and that the
order committing him for an indeterminate term should be reversed. According to
Willmes, in McKee I the California Supreme Court held that “the commitment scheme
under the amended SVP Act potentially violated equal protection because SVP’s were
treated more harshly than persons involuntarily committed under similar commitment
schemes, such as [MDO’s] and [NGI’s].” Willmes further argues that McKee II, in
which the appellate court found no equal protection violation, is “flawed” in several
respects.
1. McKee I
In McKee I, our Supreme Court determined that SVP’s and MDO’s are similarly
situated for equal protection purposes because they have been involuntarily committed
with the objectives of treatment and protection of the public. (McKee I, supra, 47 Cal.4th
at p. 1203.) The court also determined that SVP’s have “different and less favorable
procedural protections” than MDO’s because “SVP’s under the amended [SVPA] are
given indeterminate commitments and thereafter have the burden to prove they should be
released (unless the [Department] authorizes a petition for release). In contrast, an MDO
is committed for a one-year period and thereafter has the right to be released unless the
People prove beyond a reasonable doubt that he or she should be recommitted for another
year.” (Id. at p. 1202.) The court rejected the appellate court’s finding that “the
legislative findings recited in the [Proposition 83] ballot initiative” were sufficient to
justify the disparate treatment of SVP’s and MDO’s. (Id. at p. 1207.)
The California Supreme Court found that SVP’s and NGI’s are also similarly
situated and “a comparison of the two commitment regimes raises similar equal
5
protection problems . . . .” (McKee I, supra, 47 Cal.4th at p.1207.) Consequently, the
court agreed with the defendant “that, as with MDO’s, the People have not yet carried
their burden of justifying the differences between the SVP and NGI commitment
statutes.” (Ibid.)
However, in McKee I, the California Supreme Court did “not conclude that the
People could not meet its burden of showing the differential treatment of SVP’s is
justified.” (McKee I, supra, 47 Cal.4th at p. 1207.) The court gave the People “an
opportunity to make the appropriate showing on remand,” noting that the People would
have to show that “notwithstanding the similarities between SVP’s and MDO’s, the
former as a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed to
protect society.” (Id. at p. 1208.)
The McKee I court then remanded the case with the following instructions: “We
therefore remand this case to the trial court to determine whether the People, applying the
equal protection principles articulated in [In re Moye (1978) 22 Cal.3d 457 (Moye)] and
related cases discussed in the present opinion, can demonstrate the constitutional
justification for imposing on SVP’s a greater burden than is imposed on MDO’s and
NGI’s in order to obtain release from commitment. The trial court may, if appropriate,
permit expert testimony. [¶] . . . On remand, the government will have an opportunity to
justify Proposition 83’s indefinite commitment provisions, at least as applied to McKee,
and demonstrate that they are based on a reasonable perception of the unique dangers that
SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of California’s
electorate. [¶] Moreover, we emphasize that mere disagreement among experts will not
suffice to overturn the Proposition 83 amendments. The trial court must determine
whether the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based—not whether they are incontrovertible or uncontroversial.
6
The trial court is to determine not whether the statute is wise, but whether it is
constitutional.” (McKee I, supra, 47 Cal.4th at pp. 1208-1211, fns. omitted.)
2. McKee II
On remand in McKee I, “the trial court conducted an evidentiary hearing to
determine whether the People could justify the [SVPA’s] disparate treatment of SVP’s
under the strict scrutiny standard for equal protection claims. At the hearing, the People
presented the testimony of eight witnesses and documentary evidence. The trial court
also allowed McKee to present evidence; he presented the testimony of 11 witnesses and
documentary evidence. The court issued a 35-page statement of decision summarizing
the extensive testimonial and documentary evidence presented at the hearing and finding
the People had met their burden to establish, by a preponderance of the evidence, that the
disparate treatment of SVP’s under the [SVPA] was based on a reasonable perception of
the greater and unique dangers they pose compared to MDO’s and NGI’s.” (McKee II,
supra, 207 Cal.App.4th at p. 1332.)
McKee appealed, and Division One of the Fourth Appellate District affirmed the
trial court’s order. (McKee II, supra, 207 Cal.App.4th at pp. 1330-1331, 1350.) In
McKee II, the appellate court explained that it would “independently determine whether
the People presented substantial, factual evidence to support a reasonable perception that
SVP’s pose a unique and/or greater danger to society than do MDO’s and NGI’s, thereby
justifying the disparate treatment of SVP’s under the [SVPA].” (Id. at p. 1338.)
After performing its independent review of the evidence presented in the 21-day
evidentiary hearing held in the trial court (McKee II, supra, 207 Cal.App.4th at p. 1330),
the McKee II court made several findings. First, with respect to recidivism, the court
determined that the expert witness testimony of three psychologists, as well several
studies and the Static-99 data comparing recidivism rates, was sufficient to show that “the
inherent nature of the SVP’s mental disorder makes recidivism as a class significantly
more likely than recidivism of sex offenders generally, but does not show SVP’s have, in
7
fact, a higher sexual recidivism rate than MDO’s and NGI’s. . . . Regardless of the
shortcomings or inadequacy of the evidence on actual sexual recidivism rates, the Static-
99 evidence . . . supports, by itself, a reasonable inference or perception that SVP’s pose
a higher risk of sexual reoffending than do MDO’s or NGI’s.” (McKee II, supra, at
p. 1342.)
The Static-99 evidence included in the Department’s data showed that the average
Static-99 score for all SVP’s civilly committed since 2006 was 6.19, which placed them
in the “ ‘high’ risk category for sexual reoffense.” (McKee II, supra, 207 Cal.App.4th at
p. 1341.) In contrast, the average Static-99 score for MDO’s at Patton State Hospital
subject to sex offender registration under Penal Code section 290 in 2010 was 3.6,
“placing them in the ‘moderate-low’ risk category for sexual reoffense.” (Ibid.) The
average Static-99 score for all patients discharged from Atascadero State Hospital since
January 1, 2010, and subject to sex offender registration, including MDO’s and NGI’s,
was 4.6, which placed them in the “ ‘moderate-high’ risk category for sexual reoffense.”
(Id. at pp. 1341-1342.)
Second, the McKee II court considered whether the People had “presented
evidence that the victims of sex offenses suffer unique and, in general, greater trauma
than victims of nonsex offenses.” (McKee II, supra, 207 Cal.App.4th at p. 1342.) Based
on the expert witness testimony, the court concluded that “there is substantial evidence to
support a reasonable perception by the electorate, as a legislative body, that the harm
caused by child sexual abuse and adult sexual assault is, in general, a greater harm than
the harm caused by other offenses and is therefore deserving of more protection.” (Id. at
pp. 1343-1344.)
Third, the McKee II court found that there was “substantial evidence to support a
reasonable perception by the electorate that SVP’s have significantly different diagnoses
8
from those of MDO’s and NGI’s,[3] and that their respective treatment plans, compliance,
and success rates are likewise significantly different. That evidence and the evidence on
recidivism . . . , as the trial court found, ‘supports the conclusion that, as a class, SVP’s
are clinically distinct from MDO’s and NGI’s and that those distinctions make SVP’s
more difficult to treat and more likely to commit additional sexual offenses than are
MDO’s and NGI’s.’ In particular, SVP’s are less likely to participate in treatment, less
likely to acknowledge there is anything wrong with them, and more likely to be deceptive
and manipulative. . . . Furthermore, there is substantial evidence to support a reasonable
inference that an indeterminate, rather than a determinate (e.g., two-year), term of civil
commitment supports, rather than detracts from, the treatment plans for SVP’s.”
(McKee II, supra, 207 Cal.App.4th at p. 1347.)
The appellate court therefore concluded in McKee II that “the People on remand
met their burden to present substantial evidence, including medical and scientific
evidence, justifying the amended [SVPA’s] disparate treatment of SVP’s (e.g., by
imposing indeterminate terms of civil commitment and placing on them the burden to
prove they should be released). [Citation.]” (McKee II, supra, 207 Cal.App.4th at
p. 1347.) Accordingly, the trial court’s order rejecting the defendant’s equal protection
claim and affirming his indeterminate commitment under the SVPA was upheld. (Id. at
p. 1350.) The California Supreme Court denied review of McKee II on October 10, 2012,
and therefore the proceedings on remand in McKee I are now final.
3
Dr. David Fennell, a psychiatrist and the chief of forensics at Atascadero State
Hospital, testified that “MDO’s and NGI’s with a sexual predicate offense were not more
likely to commit a new sexual offense (versus another dangerous offense) on release
because their mental disorders made them disorganized and unpredictable. In
comparison, SVP’s are more likely to commit a new sexual offense because of their
diagnoses with pedophilia or other paraphilias.” (McKee II, supra, 207 Cal.App.4th at
p. 1345.)
9
Willmes urges this court to not follow McKee II because the decision is “flawed in
three respects.” The first error, according to Willmes, is that the McKee II court failed to
properly conduct a de novo review of all of the evidence presented by parties because the
court ignored McKee’s evidence and accepted the People’s evidence as accurate.
Second, Willmes argues that the McKee II court misapplied the strict scrutiny test,
because under that test, the People had the burden of showing that SVP’s are actually
more dangerous as class, and therefore it was insufficient to show that that the legislature
or voters could reasonably believe that SVP’s were more dangerous as a class. Third,
Willmes asserts that when the strict scrutiny test is properly applied, the evidence
presented by the People was not sufficient to show that the disparate treatment of SVP’s
is justified.
The People contend that the California Supreme Court’s decision in McKee I and
subsequent stay orders “demonstrate its intention that state courts, upon finality of
McKee [I], treat the factual and legal conclusions on the equal protection claim in
McKee II as binding, unless and until a higher court directs otherwise.”
We are not convinced by Willmes’s argument that McKee II was wrongly decided
and should not be followed.
First, we disagree with Willmes’s claim that the McKee II court applied a
deferential standard of review rather than an independent standard of review. Willmes
acknowledges that the appellate court stated that it was conducting a de novo review
(McKee II, supra, 207 Cal.App.4th at p. 1338), but he points out that the appellate court
also stated that it was determining “whether the People presented substantial evidence to
support a reasonable inference or perception that the Act’s disparate treatment of SVP’s
is necessary to further compelling state interests. [Citations.]” (Id. at p. 1339.) Having
reviewed the opinion, we believe the McKee II court’s description of its review is
consistent with an independent, de novo review of the evidence, as well as with the
Supreme Court’s opinion and directions in McKee I. We also note that the First District
10
Court of Appeal rejected a similar challenge to McKee II, stating that the “claim that the
appellate court failed to independently review the trial court’s determination is frivolous.”
(People v. McKnight (2012) 212 Cal.App.4th 860, 864.)
Second, we reject Willmes’s claim that in McKee II the People had the burden of
showing that SVP’s are actually more dangerous as class, and that the McKee II court
applied a rational basis test rather than a strict scrutiny test in reviewing the evidence
presented at the hearing. The McKee II court clearly understood that the strict scrutiny
test required the government to “show both a compelling state interest justifying the
disparate treatment and that the disparate treatment is necessary to further that
compelling state interest. [Citations.]” (McKee II, supra, 207 Cal.App.4th at p. 1349.)
Further, specific to the case before it, the McKee II court referred to the issue as “whether
the People presented substantial evidence to support a reasonable inference or perception
that the Act’s disparate treatment of SVP’s is necessary to further compelling state
interests. [Citations.]” (Id. at p. 1339.) The appellate court’s use of the phrase
“reasonable inference or perception” (ibid.) reflects the California Supreme Court’s
remand instructions in McKee I. In McKee I, the California Supreme Court stated, “[T]he
government has not yet shown that the special treatment of SVP’s is validly based on the
degree of danger reasonably perceived as to that group, nor whether it arises from any
medical or scientific evidence. On remand, the government will have an opportunity to
justify Proposition 83’s indefinite commitment provisions . . . and demonstrate that they
are based on a reasonable perception of the unique dangers that SVP’s pose rather than
a special stigma that SVP’s may bear in the eyes of California’s electorate. [¶] . . . The
trial court must determine whether the legislative distinctions in classes of persons
subject to civil commitment are reasonable and factually based—not whether they are
incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at pp. 1210-1211,
italics added, fn. omitted.) Thus, in applying the strict scrutiny test, McKee II followed
the language set forth in McKee I.
11
In purportedly misapplying the strict scrutiny test, Willmes also contends that the
McKee II court improperly “rejected the need for the government” to “show that the
disparate treatment of SVP’s constituted the least restrictive means possible.” We are
not persuaded by Willmes’s contention. The McKee I court, quoting from Moye, supra,
22 Cal.3d at page 465, articulated the strict scrutiny test as follows: “ ‘the state must
establish both that it has a “compelling interest” which justifies the challenged procedure
and that the distinctions drawn by the procedure are necessary to further that interest.’ ”
(McKee I, supra, 47 Cal.4th at pp. 1197-1198.) In remanding the case in McKee I, the
California Supreme Court instructed the trial court to “apply[] the equal protection
principles articulated in Moye and related cases discussed in the [McKee I] opinion”
(McKee I, supra, at p. 1208), and to determine whether, after a trial, the People had
shown that imposing on SVP’s greater burdens to obtain release from commitment is
necessary to promote the state’s compelling interests in public safety and humane
treatment of the mentally ill (id. at pp. 1207-1211). Given the evidence presented in
McKee II – that the vast majority of SVP’s are diagnosed with pedophilia or other
paraphilias, that a paraphilia ordinarily persists throughout a patient’s lifetime, that
treatment is not focused on medication, and that most SVP’s do not participate in
treatment (McKee II, supra, 207 Cal.App.4th at pp. 1344-1345) – we have no basis for
concluding that an indeterminate term is not necessary to further the compelling state
interest in providing treatment to SVP’s and protecting the public or that there is any less
burdensome alternative to effectuate those interests.
Third, we are not persuaded by Willmes’s contention that the evidence presented
by the People in McKee II was insufficient to show that SVP’s were more dangerous than
MDO’s and NGI’s and thus that harsher treatment was necessary.
For example, Willmes claims that the McKee II court “acknowledged that the
government had failed to show that SVP’s had a higher sexual recidivism rate than
MDO’s or NGI’s, but nevertheless concluded that the evidence ‘supports, by itself, a
12
reasonable inference or perception that SVP’s pose a higher risk of sexual reoffending
than do MDO’s or NGI’s.’ (McKee II, supra, [207 Cal.App.4th at] p. 1342, emphasis in
original.)” In reaching this inference, McKee II relied on evidence that the scores on the
Static-99 test, which assesses the risk that a sex offender will commit new sex offenses,
was higher for SVP’s than for non-SVP sex offenders. (McKee II, supra, at pp. 1340-
1342.) The California Supreme Court in McKee I suggested that evidence concerning a
greater risk of recidivism by SVP’s was one type of evidence that the People might
present to show that “notwithstanding the similarities between SVP’s and MDO’s, the
former as a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed to
protect society.” (McKee I, supra, 47 Cal.4th at p. 1208.) McKee II thus followed
McKee I.
Willmes also claims that McKee II reached its conclusion that victims of sexual
abuse suffer greater trauma without any evidence regarding the trauma caused by non-sex
offenses. We disagree. The evidence relied on by the McKee II court included testimony
that “[s]exual trauma differs qualitatively from other traumas because of its intrusiveness
and long-lasting effects,” and that “[d]ysfunction, disassociation and avoidance problems
after sexual trauma are unique to sexual abuse and are not seen in victims of physical or
other types of abuse.” (McKee II, supra, 207 Cal.App.4th at pp. 1342, 1343.)
Willmes further claims that the evidence concerning differences in diagnoses,
treatment, compliance, and success rates between SVP’s and MDO’s or NGI’s did not
support the conclusion in McKee II that harsher treatment of SVP’s was necessary. We
are not persuaded by Willmes’s argument. To the extent conflicting evidence was
introduced at the trial, the People’s burden was to show that “the legislative distinctions
in classes of persons subject to civil commitment are reasonable and factually based—not
[that] they are incontrovertible or uncontroversial.” (McKee I, supra, 47 Cal.4th at
pp. 1210-1211; accord, McKee II, supra, 207 Cal.App.4th at p. 1348.)
13
Lastly, Willmes asserts that “there were three separate but related elements that
were under attack in McKee’s equal protection challenge,” that is, the indeterminate term
of commitment, the elimination of the right to a jury trial periodically, and the shifting of
the burden of proof. Willmes argues that “[t]he evidence presented in McKee II did not
address the latter two issues.” This argument is without merit. Following independent
review of the evidence, McKee II concluded that “the People on remand met their burden
to present substantial evidence, including medical and scientific evidence, justifying the
[SVPA’s] disparate treatment of SVP’s (e.g., by imposing indeterminate terms of civil
commitment and placing on them the burden to prove they should be released),” and that
“the disparate treatment of SVP’s under the Act is reasonable and factually based and
was adequately justified by the People at the evidentiary hearing on remand.” (McKee II,
supra, 207 Cal.App.4th at pp. 1347, 1348.)
Having concluded for the reasons stated above that none of Willmes’s contentions
on appeal have merit, we will affirm the judgment.
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IV. DISPOSITION
The judgment is affirmed.
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MÁRQUEZ, J.
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