People v. Jackson CA1/4 ( 2016 )

Filed 6/21/16 P. v. Jackson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A139183
v.
MELVIN LEE JACKSON, (Alameda County
Super. Ct. No. C139531)
Defendant and Appellant.
Melvin Lee Jackson appeals from the trial court order for recommitment to the
Department of State Hospitals1 pursuant to a jury verdict that he is a sexually violent
predator (SVP) within the meaning of the Sexually Violent Predators Act (Welf. & Inst.
Code,2 § 6600 et seq. (SVPA or the Act)). He contends reversal is required due to
numerous evidentiary and instructional errors that deprived him of his due process right
to a fair trial. He also maintains there was insufficient evidence that he is an SVP.
Further, he claims that the SPVA is unconstitutionally vague. Finally, he contends that
the amended SVPA, providing for an indeterminate term of commitment, violates the
equal protection and ex post facto clauses. We affirm the commitment order.
I. BACKGROUND
Appellant was first committed to the custody of the Department of Mental Health
(DMH) on October 16, 1998. We affirmed the order of commitment in an unpublished
1
As of July 2012, the Department of Mental Health became the Department of State
Hospitals. (See Stats. 2012, ch. 24, § 139, p. 1033–1034.)
2
All undesignated statutory references are to the Welfare and Institutions Code.
1
opinion. (People v. Jackson (Feb. 17, 2000, A084974) [Jackson I].) On September 20,
2000, the Alameda County District Attorney petitioned for recommitment pursuant to
section 6604. (People v. Jackson (Aug. 12, 2002, A096066) [Jackson II].) The court
ordered recommitment for an additional two years commencing October 16, 2000.
(Ibid.) This court affirmed the order of the recommitment in an unpublished opinion.
(Ibid.) In July 2002, the Alameda County District Attorney petitioned for recommitment.
Due to trial court delays the recommitment time was about to expire. Consequently, in
August 2004, the district attorney filed a third petition to recommit for the period
October 16, 2004 through October 15, 2006, and moved successfully to consolidate the
two recommitment trials. (People v. Jackson (Sept. 28, 2006, A111971) [Jackson III].)
A jury found appellant to be an SVP and the court ordered his commitment extended to
October 16, 2006. (Ibid.) We affirmed the order of recommitment in an unpublished
opinion. (Ibid.) In a petition filed on August 17, 2006, and amended on August 24,
2007, the Alameda County District Attorney once again petitioned for recommitment.
Due to various delays, continuances, and pretrial proceedings, the matter did not proceed
to trial until May of 2013. Following a three-week trial, the jury found appellant to be an
SVP and the trial court committed appellant to the Department of State Hospitals (DSH)
for an indeterminate term. The instant appeal followed.
II. EVIDENCE AT TRIAL
A. State Case
1. Experts
The prosecution presented expert witness testimony from two psychologists, who
both opined that appellant qualified as an SVP.
a. Dr. Jack Vognsen
Psychologist Jack Vognsen testified that appellant qualified as an SVP. Dr.
Vognsen based his opinion on several factors, including his interview of appellant,
institutional and court record review, results of various risk assessment instruments, as
well as the past evaluations by psychologists Dr. Amy Phoenix and Dr. David Stubbins.
2
As part of his testimony, Dr. Vognsen provided the details of appellant’s criminal
history, including five sexual offenses, three of which qualified as predicate offenses.
That testimony is as follows: On October 12, 1977, appellant entered the home of
Pamela A., threatened her with a knife, choked her, forced her to orally copulate him, and
ejaculated in her mouth. He tried to rape her, but could not achieve an erection. He was
arrested as he was leaving the house. He had been out on parole for only a month and a
half when the offense occurred. Appellant was convicted of burglary and oral copulation
for the offense against Pamela A. and was sentenced to prison.
Appellant was paroled for the offense against Pamela A. on October 15, 1981.
Less than a month later, on November 6 of the same year, appellant entered the home of
Lisa S., confronted her with a knife, tied her up, raped her and forced her to orally
copulate him, and then stole some money from her purse.
On December 9, 1981, appellant pushed his way into Jeannie G.’s home after she
responded to the doorbell, pulled her clothes off, punched her, and pointed something
sharp which he said was a knife into her back. After tying her hands behind her back and
blindfolding her, he forced her to orally copulate him and raped her. This offense was
dismissed as part of a plea bargain.
On January 14, 1982, appellant surprised victim Paula R. when she entered her
house, putting a hand over her face and trying to push her against the floor. After a
struggle, she broke free and ran out the front door. Appellant fled. A knife was later
found on Paula’s bed.
On February 11, 1982, appellant escaped from jail. On February 24, 1982, he
broke into Joanne F.’s home and hid in a closet, jumping out and surprising her when she
returned home. As she struggled, appellant punched her in the face and said, “ ‘Quit
screaming bitch or I’ll kill your baby.’ ”
After tying her hands and blindfolding her, he raped the victim and unsuccessfully
attempted to have anal intercourse with her. Before fleeing, he stole money from her.
Dr. Vognsen opined that the nature of appellant’s offenses indicates that appellant
was “actively seeking a non-consenting” sexual experience when committing his crimes.
3
Dr. Vognsen contrasted appellant’s behavior with a “common rapist” who commits one
or two offenses but “seems to learn something from it, that it’s not all what he thought it
was going to be, and does not do it again.” Dr. Vognsen further explained that appellant
did not feel the “normal inhibitory responses,” such as “a woman’s tears [that] will
desexualize a man, will cause him to lose his erection,” and he also did not gain insight
from his prison incarceration for these offenses.
Dr. Vognsen also testified that appellant had several nonsexual offenses as a
youth, resulting in his commitment to the California Youth Authority on four occasions,
that he also had several rules violations while in prison and at the state hospital.
Dr. Vognsen diagnosed appellant with two mental disorders—paraphilia not
otherwise specified (NOS) and antisocial personality disorder. Dr. Vognsen explained
that although appellant had not acted out sexually in several years, he opined that
appellant’s disorders were current because they were lifelong disorders, and appellant had
been under heavy supervision in prison and at the state hospital, making it difficult for
him to reoffend. Dr. Vognsen said a paraphilia NOS diagnosis requires “indications” of
“fantasies, urges or behaviors towards nonconsenting others” over at least a six-month
period and, in appellant’s case, the evidence spanned four to five years.
Dr. Vognsen noted that appellant began the treatment program at Coalinga State
Hospital (CSH) in 2008, but dropped out and then returned in 2009. Although Dr.
Vognsen noted that the most recent evidence indicates that appellant had been doing well
in that program, he was concerned about the drop-out aspect and appellant’s initial lack
of compliance with program requirements. Dr. Vognsen explained that appellant was
halfway through the third phase of the five phase treatment plan, has done all the
“homework,” but refused any diagnostic testing about whether “he still has . . . fantasies
about rape.” Dr. Vognsen opined that this refusal suggested that appellant was “covering
up something.”
Dr. Vognsen opined that appellant was likely to reoffend in a sexually predatory
manner if released. He based his opinion on two actuarial instruments, the Static-99R
and the Static-2002 Revised (Static 2002R), and two clinical tools, the Sexual Violence
4
Risk 20 and the Structured Risk Assessment Forensic Version, and several dynamic
factors. In Dr. Vognsen’s opinion, appellant had over a 50 percent chance of committing
a new sexual offense within 10 years if released. He further opined that appellant was
not a good candidate for outpatient treatment.
b. Dr. Dawn Starr
Psychologist Dawn Starr testified as a second expert for the People. In her
opinion, appellant qualified as an SVP. Dr. Starr diagnosed appellant with paraphilia
NOS and antisocial personality disorder. Like Dr. Vognsen, she opined that appellant
was likely to reoffend in a sexually violent predatory manner if released based on his
Static-99R and Static-2002R scores. Dr. Starr noted that to his credit, appellant had
begun participating in sex offender treatment. However, his attendance was inconsistent
and he had dropped out twice since enrolling in 2008. He had also refused to participate
in two assessment tests. Appellant told Dr. Starr that one of the tests involved showing
pictures of consensual and nonconsensual acts, and that if they showed slides oriented
toward his crimes, he was concerned that his response would be “predictable.” Dr. Starr
explained that she did not believe appellant would be a good candidate for outpatient
treatment because his attendance and participation even in the hospital was inconsistent;
he picked and chose what he wanted to participate in; his cooperation with supervision
out of custody in the past had been poor; he continued to lack insight into his behavior;
and he himself was concerned about being sexually aroused by deviant material. Dr.
Starr noted that she thought that appellant was “genuinely . . . trying to improve
himself . . . .” However, she added that “he still had this anger and rage that kind of
breaks through and he disproportionately reacts.”
2. Other Psychological Evidence
a. Dr. Tricia Busby
At the time of trial, psychologist Tricia Busby had worked for six years
at CSH as a behavioral specialist. She had a doctoral degree in forensic psychology and
was working toward a clinical psychologist license. At CSH, she conducted assessments
and facilitated group and individual treatment programs, supervised by two licensed staff
5
psychologists. She prepared “diagnostic clarifications,” which comprised the assessment
portion of the Sex Offender Treatment Program (SOTP).
Appellant had participated in some self-report assessments and in two assessment
tools administered by Dr. Busby. Dr. Busby further discussed her results on the
Multiphasic Sex Inventory Two. The 560 questions in that instrument told Busby that
appellant was “minimizing the planning strategies he used to set up his offense behavior
and minimizes the feelings of anticipation and excitement he had leading up to the
offense behavior.” Appellant scored 30 out of 50 as to “antisocial behaviors.”
During cross-examination, Dr. Busby agreed that she has observed appellant
mentoring others, being supportive to peers in group sessions, acting responsibly in his
unit employment position, acting appropriately with female staff, holding a “positive
view” of women, becoming more transparent about the factors leading to his crimes, and
possessing a well-integrated and positive self-concept that includes more tolerance for
differences in others.
b. Dr. Daisy Minter
Psychologist Daisy Minter worked at CSH, where she facilitated three different
treatment groups. In October 2011, along with social worker Adriel Reyes, Dr. Minter
began facilitating a group in which appellant was assigned. Dr. Minter explained that a
treatment group averages nine patients and meets twice weekly. Dr. Minter assigned
“work paper assignments” (behavior chains, autobiographies, decision matrix) to the
patients. She said that appellant delayed doing some of this work but completed it early
in 2012. Dr. Minter further testified that appellant’s initial attendance was inconsistent or
he would get upset and leave the meeting early. She detected a pattern of appellant not
wanting to redirect his comments during the meeting as instructed and, without cursing or
being visibly upset, appellant would walk out. Appellant frequently expressed his
frustration in the group sessions about the new program not having an actual plan and
manual for participants or any clear structure to it, saying, “It didn’t seem like it was
going anywhere.”
6
3. Appellant’s Testimony
The prosecution called appellant as a witness in its case. He admitted to
committing two burglaries in 1971, after being released from California Youth Authority.
The prosecutor asked about a 1973 incident involving a woman named Elfie. Appellant
recalled burglarizing her home and confronting her on the way out the door, resulting in a
struggle on the staircase and her falling down the steps. He denied punching or beating
her, but he could not recall her testimony in this regard.
Appellant admitted to re-offending after his release on parole. His first predicate
crime occurred in 1977 after such a release. He testified that he was living with a
girlfriend when he sexually assaulted Pamela A. He entered Pamela’s house with the
intent to steal, thinking no one was home. When the victim came out of the bedroom and
surprised him, he panicked and grabbed her, telling her to stop screaming. He then
dragged her to the bedroom, tied her hands behind her back, blindfolded her, and forced
her to orally copulate him. Afterward, he was arrested at the scene, and was sentenced to
prison for the crime. Appellant tried to explain his “distorted thinking” at that time, when
he thought “like a criminal” and exercised complete control over his victim. He admitted
to being “turned on . . . to some degree” by the forced act of oral copulation. Appellant
said he received no treatment while incarcerated.
After appellant was paroled in October 1981, he committed a number of burglaries
for which he was not caught. In November 1981, he entered the home of Lisa S. with the
intent to steal. While inside, he heard someone come into the house. The person walked
by the bedroom, and appellant saw that she was female. He grabbed her, threatened her
with a knife he picked up from the kitchen, and moved her to the bedroom, where he tied
her hands behind her back and blindfolded her, and then raped her. Before fleeing, he
also took some money from her drawer.
On December 9, 1981, appellant rang the front doorbell of Jeannie G.’s residence
to see if someone was home before attempting to burglarize it. When the victim
answered, surprising him, he pushed his way in, intending to rob her. He forced the
victim into the kitchen, where he armed himself with a knife. He then took her to the
7
bedroom, where he tied her hands, blindfolded her, and gagged her. After looking around
her house and taking money, he returned to the bedroom and decided to sexually assault
her.3 He forced her to orally copulate him, raped her from behind, and then fled.
Appellant recalled committing additional burglaries in January 1982, but did not
recall the encounter with victim Paula. He did remember escaping from Santa Rita Jail
on February 11, 1982. He committed additional burglaries between then and February
24, 1982, when he assaulted Joanne F. Appellant went to Joanne’s residence, again
planning to burglarize. When he heard someone coming upstairs, he hid in a closet. The
victim opened the closet door, appellant grabbed her, pressed a knife against her, tied her
hands and blindfolded her, and raped her. While attempting to rape her, he accidentally
penetrated her anus and apologized.
Appellant was arrested on March 30, 1982 and sentenced to prison. He was
paroled on September 21, 1994. He violated parole for being out past his curfew, and
was put back in custody from November 1994 to April 1995. In July 1995, he was again
returned to custody for being out past his curfew. While in prison, he incurred 19 rules
violations. In 1996, he was transferred to Atascadero State Hospital (ASH), where he
had an altercation that resulted in him being sent back to prison. He returned to ASH in
1998, but did not participate in the sex offender treatment program because he did not
believe he had a mental disease. Appellant denied that he suffered from paraphilia, but
acknowledged that he suffered from antisocial personality disorder.
In April 2007, appellant was transferred to CSH. He began participating in the sex
offender treatment program there in June 2008, and believed he had reformed himself.
He had completed the work for phase two of the program, but had not completed two
assessment tests. According to appellant, this was not because he refused the testing, but
because the hospital had not scheduled the tests.
3
He could not recall if he threatened to kill her baby. He said, “I don’t believe I
did. I know–like I say, on one of these cases I did that. I don’t know if it was this one or
[another] one. I know I did in one of them.”
8
4. The Victims
The prosecutor called a staff colleague as a reader to recite portions of both prior
court transcripts concerning three predicate convictions and one non-predicate offense, as
well as parts of two police reports. The prosecutor recited the original questions and the
reader replied with the testimony of Pamela A., Joanne F., and Lisa S. Also read was an
excerpt of a police report in the Joanne F. case and the Lisa S. matter. Specifying its
purpose to impeach, the prosecutor read the preliminary hearing testimony involving the
assault on Paula R.
B. Defense
1. Experts
a. Dr. Brian Abbott
Psychologist Brian Abbott testified for the defense. He assessed appellant in
2009, and then again in 2012, for a combined total of five hours. He concluded that
appellant suffered from antisocial personality disorder in the past, but did not suffer from
it currently. Dr. Abbott explained that he did not believe antisocial personality disorder
“in and of itself” could be a qualifying disorder for SVP commitment because such a
disorder predisposes the person to general criminality, not sexual violence.
In Dr. Abbott’s opinion, appellant did not suffer from paraphilia NOS, coercive
disorder in the past or currently. According to Dr. Abbott, there is a controversy in the
field about whether such a diagnosis exists at all, although he, himself, believed it did
exist. However, he added that, even if such a diagnosis exists, it cannot be established by
behavior alone because many repeat rapists rape out of anger towards women and a
desire for power as opposed to arousal by forced sex. Dr. Abbott testified that in order to
diagnose paraphilia NOS, coercive disorder, there must be some indication that the
individual has urges or fantasies related to forcible or nonconsenting sexual behavior.
This can come from self-report, evidence that the person while in the state hospital has
been viewing pornography or reading stories about forced sex, or perhaps evidence that
the person while in the state hospital has been exposing himself to female staff.
9
Dr. Abbott opined that appellant did not qualify for SVP commitment, because he did not
have a current diagnosed mental disorder.
Dr. Abbott explained that he normally ends his evaluation upon finding the
absence of a current diagnosed mental disorder. However, at the request of counsel, he
extended his evaluation to cover the risks of re-offending. Dr. Abbott opted to administer
only the Static-99R to appellant. He explained that while he had used the SVR-20 in the
past, he stopped using it because it was considered a “structural professional judgment
instrument,” and less accurate than other actuarial tools. Using the Static-99R, Dr.
Abbott concluded that appellant, who was nearly 60 years old at the time of testing, had a
low risk of re-offending. Dr. Abbott disagreed with the higher scores reported by
Dr. Vognsen and Dr. Starr. Dr. Abbott critiqued the methodologies employed by Dr.
Vognsen and Dr. Starr.
Dr. Abbott explained that paraphilia NOS is a category in the Diagnostic and
Statistical Manual of Mental Disorders (DSM) but is not itself a DSM diagnosis. He
further stated 95 percent of rapes occur for non-paraphilic reasons. Dr. Abbott opined
that appellant is not among the five percent who commit paraphilic rapes. For example, a
hospitalized paraphilic rapist would likely possess pornography reflecting forced sex;
appellant has never been found with any nor attempting to secure it. Dr. Abbott further
opined that were appellant paraphilic, he also would likely manifest his difficulty in
controlling his urges by exposing himself to female staff as a kind of “substitute” for an
actual rape.
Dr. Abbott testified that, in his opinion, appellant committed the predicate crimes
as a result of his antisocial personality disorder and he exploited opportunities that were
presented during commission of his burglaries. He further explained that a diagnosis of
antisocial personality disorder “better explain[s]” appellant’s criminal history than does a
claim of paraphilic disorder. In any event, Dr. Abbott concluded that appellant does not
currently suffer from antisocial personality disorder or paraphilia NOS.
Dr. Abbott concluded that appellant does not meet the SVP criteria, does not have
a currently diagnosed disorder, and does not pose a serious and well-founded risk of
10
reoffending by sexually violent behavior. His opinion took into account various factors,
including the actuarial score and appellant’s advancing age. Dr. Abbott concluded there
is no evidence of any current condition that causes appellant serious difficulty in
controlling impulses or behavior. Accordingly, he opined that appellant does not pose a
substantial danger within the meaning of the SVPA.
b. Dr. Mary Jane Adams
Psychologist Mary Jane Adams testified that she evaluated appellant in 2007,
2009, and again in November 2012, for a total of approximately six hours; she also
reviewed pertinent institutional documents. Like Dr. Abbott, she believed appellant’s
sexual assaults stemmed from antisocial personality disorder, from which he presently
did not suffer. Dr. Adams opined that paraphilic rapists make up only two to five percent
of all rapists. She did not believe that appellant is or was ever part of this small group of
offenders. She based this opinion, in part, on the lack of evidence that appellant’s sexual
assaults were planned, as opposed to opportunistic. Dr. Adams further opined that,
through much of his life, appellant fit the diagnosis of antisocial personality disorder, but
she explained that over the past five or six years, he’s “aged out,” of this diagnosis;
according to Dr. Adams, this is a “very common phenomenon.” Dr. Adams further
explained that the residual effect of this “burn out” of the disorder is that appellant
occasionally “gets irritated and mouths off,” but he has not been in a physical altercation
for a number of years. She found no current evidence that appellant suffered from
antisocial personality disorder. Indeed, she viewed appellant as beginning to develop a
level of empathy that previously did not exist.
Using the Static-99R, Dr. Adams concluded that appellant was unlikely to
reoffend because he had participated in five years of sex offender specific treatment, his
impulsivity and aggressive behavior had reduced greatly over the years due to his age, he
had developed empathy, and he had diabetes, which reduced his sex drive and ability to
perform.
11
c. Dr. Robert Owen
Psychologist Robert Owen evaluated appellant on behalf of DSH 10 times
between 2002 and 2011, concluding each time that he had a diagnosed mental disorder, to
wit, paraphilia NOS, and was likely to reoffend. In 2012, however, Dr. Owen changed
his opinion because, over the years, paraphilia NOS had become a controversial
diagnosis, and he now believed that it should not be used as a diagnosis qualifying a
person for an SVP commitment. Dr. Owen did diagnose appellant, in the past and
currently, with antisocial personality disorder. However, he explained that appellant’s
criminality resulting from the disorder had waned over time. Dr. Owens further
explained that the disorder does not usually predispose people to commit sexually violent
acts. He did concede that antisocial personality disorder can be used as a qualifying
diagnosis for SVP commitment. Dr. Owen noted that the bulk of the person’s criminal
offenses would have to be sexual in nature so that a clear causative relationship could be
drawn between the personality disorder and the sexual offending; Dr. Owen opined that
appellant’s sexual offenses appeared to be more opportunistic. On cross-examination,
Dr. Owen acknowledged that his 2011 report on appellant stated, “Although paraphilia
has been a controversial diagnosis, in this case with such persistent deviance, multiple
victims and both urges and behaviors, he appears to be one of those few individuals who
qualifies for the diagnosis.” He also opined that appellant would not seek treatment on
his own if released.
d. Dr. Carolyn Murphy
Psychologist Carolyn Murphy was asked by DSH to conduct a “difference of
opinion” evaluation of appellant after the two initial experts failed to agree on whether he
qualified as an SVP. After evaluating numerous records and meeting with appellant, Dr.
Murphy determined that appellant did not currently suffer from a mental disorder that
would predispose him to commit violent sexual crimes. In her opinion, a repeat rapist
could be validly diagnosed as suffering from paraphilia, which could be based on
behavior alone. She had diagnosed it in the past when she found a circumstance
involving physically forceful sex in the absence of significant pattern of other criminal
12
conduct. Dr. Murphy concluded that appellant’s sexual assaults appeared to be part of his
criminal personality rather than the product of paraphilia.
Dr. Murphy opined that appellant was suffering from antisocial personality
disorder during commission of the predicate offenses. She recognized that an argument
could be made that appellant still suffers from antisocial personality disorder, but she
diagnosed him having only a general personality disorder that manifests “antisocial
traits.” Dr. Murphy explained that appellant’s “behavior has slowed down. It’s more
petty rules violations, being argumentative with staff. . . . [A]sserting himself,
inappropriately, but then stepping down. It doesn’t escalate.” She added that there are
“[still some] verbal outbursts [but] that pattern has slowly changed over time. You still
see some verbal outbursts . . . but not nearly the frequency or intensity.” Dr. Murphy
opined that some of this change could be attributed to a “less stressful, more therapeutic”
environment at CSH as opposed to ASH, which she said is “run a bit more like a prison.”
2. Social Workers
a. Adriel Reyes
Social worker Adriel Reyes had worked at CSH since 2008 and was a co-
facilitator in the Sex Offender Treatment Program, since renamed the “Better Lives”
model. He had been in charge of treatment groups for the past four years; one of his co-
facilitators was Dr. Minter. Reyes explained that participants work on autobiographies
and “behavior chains.” Reyes described the state of institutional confusion that followed
the replacement of the five phase treatment program.
Appellant had been in Reyes’ group for three years. He described appellant’s
“rocky start,” during which appellant was brash and loud, showing his unhappiness with
having his old group disbanded. However, he made a rather quick adjustment and was
receptive to his new group. While he and a couple other group members remain “pretty
blunt,” Reyes said appellant is able to “interact well” and he has developed good rapport
with others, to the extent of helping convince another patient to participate in treatment.
Reyes said the “group dynamic” changed after Dr. Minter became a co-facilitator;
he does not share her perspective about appellant monopolizing group participation.
13
Appellant initially was “challenging” when Dr. Minter took over. Though his attendance
has been “sporadic” over the last few months, Reyes said appellant has “come a long
ways” since 2011 and has “caught on a lot faster” with discussions and feedback. Reyes
added that appellant was “able to verbalize a lot more of his coping skills in that group.”
b. Sylvia Garcia
Social worker Sylvia Garcia had worked at CSH since 2009. She had worked with
appellant for three years, seeing him on a daily basis. In her work with appellant, Garcia
has counseled him in developing skill to make better choices and resolve problems.
Appellant interacts appropriately with other patients and most of the time appropriately
with staff as well, excepting the unit supervisor who is a “psych tech.” Garcia
specifically discussed a July 2012 incident in which appellant got upset and threw a
television remote controller against the wall, saying such behavior was atypical. Garcia
has counseled him about improving his relationship with the supervisor, including
avoiding her and walking away when he gets upset rather than engaging in an argument.
III. DISCUSSION
A. Appellant Received a Fair Trial
Appellant claims that various evidentiary and instructional errors violated his right
to due process, as did instances of prosecutorial and judicial misconduct.
1. Alleged Evidentiary Errors
Decisions concerning the admission of evidence at trial are within the province of
the trial judge. (People v. Jones (1998) 17 Cal.4th 279, 305.) “ ‘As a general matter, a
trial court is vested with broad discretion in ruling on the admissibility of evidence. The
court’s ruling will be upset only if there is a clear showing of an abuse of discretion, i.e.,
that the court exceeded the bounds of reason.’ [Citation.]” (People v. Dean (2009) 174
Cal.App.4th 186, 193.) Also, “ ‘[i]t is . . . well settled that the erroneous admission or
exclusion of evidence does not require reversal except where the error or errors caused a
miscarriage of justice. [Citation.] “A ‘miscarriage of justice’ should be declared only
when the court ‘after an examination of the entire cause, including the evidence,’ is of the
‘opinion’ that it is reasonably probable that a result more favorable to the appealing party
14
would have been reached in the absence of the error.” [Citations.]’ [Citations.]” (People
v. Fields (2009) 175 Cal.App.4th 1001, 1018.)
Keeping in mind the general standard of review, we consider each of appellant’s
claims of error.
a. Prior Convictions
Appellant claims the court erred when it admitted the “unnecessary and repetitive
proof” of his prior convictions despite his pre-trial concession that he had three
qualifying predicate offenses and was collaterally estopped from relitigating their
legality.
Preliminarily, the prosecution was entitled to refuse any concession or stipulation
by appellant because the challenged evidence remained probative to the issues before the
jury. (People v. Garceau (1993) 6 Cal.4th 140, 182, abrogated on another ground as
stated in People v. Yeoman (2003) 31 Cal.4th 93, 117 [prosecution cannot be compelled
to accept a stipulation which would “ ‘deprive the state’s case of its persuasiveness and
forcefulness’ ”]; People v. Hall (1980) 28 Cal.3d 143, 152 [“if the facts to which the
defendant has offered to stipulate retain some probative value, then evidence of such facts
may be introduced”], overruled on another ground in People v. Newman (1999) 21
Cal.4th 413, 415.)
The details of the offenses were relevant to prove appellant was convicted of a
sexually violent offense against two or more victims. The jury also had to find that
appellant had a diagnosed mental disorder and that the disorder made him a danger to the
health and safety of others. (See § 6600, subd. (a); CALJIC No. 4.19.) The description
of the predicate convictions provided the jury with some of the basis for diagnosing
appellant with paraphilia NOS and antisocial personality disorder. Moreover, the details
of the offenses were probative of appellant’s risk of recidivism. Both Dr. Vognsen and
Dr. Starr opined that defendant posed a fairly high risk of committing another SVP
offense based, in part, on the facts of the predicate convictions.
In People v. Hubbart (2001) 88 Cal.App.4th 1202, the court resolved a similar
case where it concluded that the trial court had not abused its discretion by admitting
15
detailed evidence of numerous sexual assaults the defendant had committed, over his
objection: “Details about defendant’s past sexually violent conduct were important to the
jury’s determination of these issues. The way that defendant targeted similar victims and
committed the crimes in a similar manner showed his predatory behavior and the risk he
posed if released. Although there was expert testimony on those issues, the details of the
crimes were helpful for the jury’s understanding of the experts’ opinions and diagnoses.
Although the details of the crimes were odious, it was necessary for the jury to learn not
just that defendant had committed numerous sex offenses, but the scope and nature of his
sexually predatory behavior.” (Id. at p. 1234.)
To the extent appellant suggests that allowing the victims’ testimony to be read
into the record was cumulative we are similarly not persuaded. Not only was this
evidence relevant to impeach appellant’s testimony, it represented a relatively minor
portion of the vast array of evidence that was introduced to establish that appellant met
the criteria for qualifying as an SVP.
Finally, appellant takes issue with the admission of evidence regarding the non-
predicate offense involving Paula R. Below, defense counsel objected to this evidence on
the ground that the evaluators had not reviewed Paula R.’s testimony in rendering their
opinions. As with the testimony of the other victims, the prosecutor offered Paula R.’s
testimony for impeachment purposes. This testimony was also relatively brief, and no
more prejudicial than the evidence pertaining to the predicate offenses. Also, there was
little risk of confusion. Thus, applying Evidence Code section 352, we find no abuse of
discretion in admitting this evidence.
Because we reject appellant’s claim of error, we reject his due process claim as
well.
b. Failure to Submit to Testing
Appellant contends the trial court erred in allowing evidence that he refused to
participate in “two diagnostic tests.” Though not identified by name to the jury, the two
tests were a polygraph test and a penile plethysmograph (PPG) test. They were described
as an assessment “that looks at disclosure of sexual behaviors that a person has done in
16
the past” (polygraph) and an assessment that “measure[s] sexual arousal and sexual
interests in a variety of both appropriate and inappropriate or deviant stimuli” (PPG). A
behavioral specialist from CSH testified that these assessments were important because
they provided an objective measure of the person’s current level of deviant sexual
interests and sexual preoccupation, and provided information from which the hospital
could develop a treatment plan for the individual and measure progress in treatment.
Dr. Starr testified that appellant told her that one of the two assessments he refused
involved showing pictures of consensual and nonconsensual acts, and that if they showed
slides oriented toward his crimes, he was concerned that his response would be
“predictable.” In Dr. Starr’s opinion, the statement demonstrated that appellant wanted to
pick and choose what treatment he wanted to participate in, which made it unlikely he
would follow through with voluntary treatment in the community. It also suggested that
appellant himself was concerned that he would still be aroused by sexually deviant
material.
Dr. Vognsen testified that appellant had refused to take “the diagnostic test that
would see whether he still has got fantasies about rape,” which he considered significant
because appellant claimed not to have such fantasies. “If he doesn’t have them,”
questioned Dr. Vognsen, “why not open yourself up to that diagnostic assessment so you
can demonstrate that? He said nah, I don’t want to do that. That seems to me that he’s
covering up something there.” When he took the stand, appellant professed that he did
not refuse to take either assessment test.
Appellant contends the court prejudicially erred in allowing mention that he
refused to take, albeit not by name, the polygraph and PPG. He adds that by “not naming
the ‘tests,’ it gave them a false aura of importance and significance.” We are not
persuaded.
Whether the results of a polygraph or PPG are admissible in an SVP case is
questionable. (People v. Fields, supra, 175 Cal.App.4th 1001, 1017 [noting Evid. Code
prohibits polygraph evidence in criminal proceedings, but “we have found no statutory or
judicially created bar to a party offering polygraph evidence in civil proceedings”];
17
People v. John W. (1986) 185 Cal.App.3d 801, disapproved on other grounds in People v.
Waidla (2000) 22 Cal.4th 690, 717 [trial court did not err in excluding expert opinion that
defendant was not sexually deviant based on PPG results where defendant failed to show
the test was a reliable means of diagnosing sexual deviancy].) Finding the admission of
the challenged evidence to be harmless, we decline to enter the controversy.
First, the evidence that appellant refused to take the diagnostic assessments was
not offered to establish that he was a liar or a sexual deviant. Rather, the experts testified
that the tests were useful in helping address appellant’s treatment needs and in measuring
his progress. This evidence, therefore, was relevant to the issue of whether appellant was
fully participating in treatment. It was also useful in helping the jury assess the weight to
be given to the experts’ opinions.
Second, even without the challenged evidence, there is no reasonable probability
that appellant would have received a more favorable result. (People v. Watson (1956) 46
Cal.2d 818, 836.) Dr. Starr testified that appellant’s diagnoses remained current because
they were chronic, lifelong disorders. She found that he remained dangerous and in need
of custodial treatment based on his scores on actuarial tests, his dropping out of sex
offender treatment twice, his failure to consistently attend treatment even when
participating, his lack of cooperation with authority, the unlikelihood of his seeking
treatment on a voluntary basis if released, his grievance thinking and anger problems, and
his lack of insight into his behavior. Similarly, Dr. Vognsen testified that appellant
remained dangerous because of his actuarial test scores, history of dropping out of sex
offender treatment, inconsistent participation when enrolled in treatment, admitted
continuing sex drive, poor cooperation with supervision, poor anger control, and lack of
mitigating factors such as health concerns. Accordingly, on this record, there is no
reasonable probability the jury would have found that appellant did not qualify as an SVP
absent the evidence that he refused to participate in the two diagnostic tests. We also
conclude that appellant’s right to due process was not violated.
2. Alleged Instructional Errors
Appellant raises several claims of instructional error.
18
“In reviewing any claim of instructional error, we must consider the jury instructions as a
whole, and not judge a single jury instruction in artificial isolation out of the context of
the charge and the entire trial record.” (People v. Dieguez (2001) 89 Cal.App.4th 266,
276.) There is no instructional error if the instructions, as a whole, “are unobjectionable,
even though isolated passages from some of the instructions may be subject to criticism.”
(People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074-1075.)
“A party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has requested
appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991,
1024.) “The trial court is not required to give [a pinpoint instruction that explains or
highlights a defense theory] on its own initiative, and if the instruction as given is
adequate, the trial court is under no obligation to amplify or explain in the absence of a
request that it do so.” (People v. Mayfield (1997) 14 Cal.4th 668, 778, overruled on other
grounds in People v. Scott (2015) 61 Cal.4th 363, 390.) A defendant’s failure to request a
clarifying or amplifying instruction at trial waives a claim on appeal that the instruction
given was ambiguous or incomplete. (Id. at pp. 778-779; People v. Cole (2004) 33
Cal.4th 1158, 1211; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Sanchez (2001)
94 Cal.App.4th 622, 635.)
a. Use of “Admission” Instruction (CALJIC No. 2.71)
At trial, appellant admitted that he had acted criminally and anti-socially in the
past. The trial court instructed the jury with a modified version of CALJIC No. 2.71. As
given, the instruction read: “An admission is a statement made by the respondent which
does not by itself acknowledge his status as a sexually violent predator for which the
respondent is on trial, but which statement tends to prove his status when considered with
the rest of the evidence. [¶] You are the exclusive judges as to whether the respondent
made an admission, and if so, whether that statement is true in whole or in part.”
However, the trial court failed to include language that these admissions must be viewed
with caution.
19
Appellant contends that there was no substantial evidence to support giving this
instruction and, alternatively, even if such evidence existed, the omission of the
cautionary language constituted prejudicial error. We disagree. Appellant’s admission at
trial that he had previously “acted out criminally,” while suffering from anti-social
personality disorder, when viewed with the rest of the evidence, had a tendency to prove
his status as sexual predator. Moreover, appellant’s claim that the trial court was required
to instruct the jury sua sponte to view this evidence with caution is without merit. The
omitted, cautionary language pertains to oral admissions not made in court.4 Indeed, the
California Supreme Court has explained that “the primary purpose of the cautionary
instruction ‘is to assist the jury in determining if the statement was in fact made.’
[Citation.] ” (People v. Stankewitz (1990) 51 Cal.3d 72, 94.) Here, appellant made these
admissions in open court. Accordingly, there is no dispute that appellant, in fact, made
such statements. (People v. Stankewitz, supra, 51 Cal.3d at p. 94 (“[t]he testimony . . .
was uncontradicted; [appellant] adduced no evidence that the statement was not made,
was fabricated, or was inaccurately remembered or reported”].) Moreover, neither
psychologist relied on the appellant’s opinion of his prior criminality in forming their
opinion that he currently met the criteria for an SVP.
b. Failure to Sua Sponte Instruct Regarding Nature of Commitment
Appellant contends the trial court should have instructed the jury sua sponte that a
a determination that he qualified as 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.5 Appellant argues that failing to instruct the jury on the
4
The bracketed language of CALJIC No. 2.71 is as follow: “[Evidence of an oral
admission of [a] [the] defendant not contained in an audio or video recording and not
made in court should be viewed with caution.]”
5
Prior to 2006, a person determined to be an SVP was committed to the custody of
the DMH for a period of two years; to keep an SVP in custody beyond the initial two-
year term, the People were required to file a new petition to extend the commitment and
again prove to a jury beyond a reasonable doubt that defendant is an SVP. (See Bourquez
v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) In 2006, the SVPA was
amended by statute and voters’ initiative (Proposition 83, known as Jessica’s Law) to
20
consequences of its true finding “may give them the mistaken impression that a civil
commitment is short term and allows for future actual judicial review.” 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.]” (People v. Souza (2012) 54 Cal.4th 90, 115.) At appellant’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 sua sponte regarding the consequences of
an SVP finding. We similarly reject appellant’s due process claim.
c. Failure to Give a Sua Sponte Instruction Quantifying the Degree of Risk
Appellant argues reversal is required because the court did not adequately instruct
on “key elements” regarding the risk of reoffense that is necessary to commit a person as
an SVP. He claims the court should have given a sua sponte instruction that more
precisely defined the degree of risk. We reject this contention.
By statute, an SVP must have a “diagnosed mental disorder that makes the person
a danger to the health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) “Likely” has been judicially
construed to mean “ ‘the person presents a substantial danger, that is, a serious and well-
founded risk, that he or she will commit such crimes if free in the community.’ ” (People
v. Roberge (2003) 29 Cal.4th 979, 982, 986.) The risk of reoffense must be greater than a
provide that SVP’s be committed by the court to the DMH for an indefinite period of
time rather than the renewable two-year commitment provided for under existing law.
(Ibid.)
21
“mere possibility,” but need not be “better than even,” i.e., greater than 50 percent. (Id.
at pp. 985-988.) The jury was instructed as much.
Appellant argues that the instructions did not go far enough because they “fail[ed]
to explain the requisite minimum level of risk that the jury must unanimously agree
upon.” Specifically, he contends the jury should have been further instructed regarding
the meaning of “likely,” “danger,” “substantial danger,” and “substantial, serious, well-
founded” risk. He, however, did not request an additional instruction on this point and
has not, in his appellate briefs, suggested clarifying language. “Once the trial court
adequately instructs the jury on the law, it has no duty to give clarifying or amplifying
instructions absent a request.” (People v. Butler (2010) 187 Cal.App.4th 998, 1013.)
Accordingly, we reject appellant’s due process claim.
d. Failure to Specify the Types of Mental Illnesses Qualifying as
Mental Disorders Under the SVPA
Appellant contends the trial court erred by failing to instruct the jury on the types
of mental illnesses that qualify as “mental disorders” under the SVPA. We disagree.
CALJIC No. 4.19 advised the jury that an SVP must have “a diagnosed mental
disorder that makes him a danger to the health and safety of others . . . .” “Diagnosed
mental disorder” was defined as “a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a menace to the health and safety
of others.” These definitions tracked the statutory language of the SVP Act. (See
§ 6600, subds. (a)(1), (c).)
Appellant argues that the instruction was inadequate because it failed to specify
whether antisocial personality disorder or paraphilia NOS “standing alone” were “legally
sufficient disorders.” He further contends that antisocial personality disorder “does not
suffice” and the jury should have been instructed on this point. We disagree.
In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1158 (Hubbart), the
Supreme Court rejected an argument that the SVPA was unconstitutional because it did
not exclude from its purview “antisocial personality disorders or other conditions
22
characterized by an inability to control violent antisocial behavior.” Nothing in the
SVPA or the federal Constitution prohibits a jury from relying on a personality disorder
as a basis for an SVP determination. (Hubbart, at pp. 1158-1161.)
Moreover, the instruction as given was a correct statement of the law and appellant
did not request an additional instruction. As such, the court was not obligated to give a
clarifying instruction. (People v. Butler, supra, 187 Cal.App.4th at p. 1013.) We find no
merit to appellant’s due process claim based on this alleged error.
e. Failure to Give Unanimity Instruction as to Mental Disorder
Appellant 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. Appellant 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.]” (People v. Washington (1990) 220
Cal.App.3d 912, 915.)
The SVPA requires that a jury’s verdict be unanimous, but it does not require
unanimity as to each element necessary to support an SVP finding. (People v. Carlin
(2007) 150 Cal.App.4th 322, 347, People v. Fulcher (2006) 136 Cal.App.4th 41, 59.)
Moreover, “[a]n SVP proceeding is civil, and 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 verdict must be
unanimous. [Citations].” (People v. Carlin, supra, 150 Cal.App.4th at p. 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
23
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,
supra, 136 Cal.App.4th at p. 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]”].) Accordingly, because the trial court adequately instructed the jury on each
of the elements of appellant’s civil commitment, the court did not commit prejudicial
error by failing to give a unanimity instruction sua sponte on the “diagnosed mental
disorder” element. Accordingly, we similarly reject appellant’s due process claim.
3. Alleged Prosecutorial Misconduct
Appellant contends the prosecutor committed misconduct and violated his right to
due process by asking him “indecent and prurient” questions about his prior convictions
for the purpose of humiliating and embarrassing him in front of the jury. Appellant also
claims he was denied a fair trial by the prosecutor’s denigrating questions about Dr.
Abbott’s integrity.
a. Legal Principles
“A witness may not be examined on matters that are irrelevant to the issues in the
case. [Citations.]” (People v. Mayfield, supra, 14 Cal.4th 668, 755.) Moreover,
questions that go “beyond an attempt to elicit facts within [a witness’s] knowledge and
[are] instead designed to engage him in an argument” are improper. (People v. Johnson
(2003) 109 Cal.App.4th 1230, 1236.)
In considering the effect of the prosecutor’s conduct, we are mindful that
“[p]rosecutors . . . are held to an elevated standard of conduct. ‘It is the duty of every
member of the bar to “maintain the respect due to the courts.” (Bus. & Prof. Code,
§ 6068, subd. (b).) A prosecutor is held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the interests,
and in exercising the sovereign power, of the state. [Citation.] As the United States
Supreme Court has explained, the prosecutor represents “a sovereignty whose obligation
24
to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice
shall be done.” [Citation.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 819-820, overruled
on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
“ ‘When a prosecutor’s intemperate behavior is sufficiently egregious that it
infects the trial with such a degree of unfairness as to render the subsequent conviction a
denial of due process, the federal Constitution is violated.’ ” (People v. Jablonski (2006)
37 Cal.4th 774, 835 (Jablonski); see People v. Hill, supra, 17 Cal.4th at p. 819, [pattern
of prosecutorial misconduct so egregious as to infect trial with fundamental unfairness
and make conviction a denial of due process].) “ ‘Prosecutorial misconduct that falls
short of rendering the trial fundamentally unfair may still constitute misconduct under
state law if it involves the use of deceptive or reprehensible methods to persuade the trial
court or the jury.’ [Citation.]” (Jablonski, supra, at p. 835.) “Misconduct that does not
constitute a federal constitutional violation warrants reversal only if it is reasonably
probable the trial outcome was affected. (People v. Watson[, supra,] 46 Cal.2d [at p.]
836; see People v. Holt (1984) 37 Cal.3d 436, 458.)” (People v. Shazier (2014) 60
Cal.4th 109, 127 (Shazier).)
“As a prerequisite for advancing a claim of prosecutorial misconduct, the
defendant is required to have objected to the alleged misconduct and requested an
admonition ‘unless an objection would have been futile or an admonition ineffective.’
[Citation.]” (Jablonski, supra, 37 Cal.4th at p. 835.) “ ‘ “To prevail on a claim of
prosecutorial misconduct based on remarks to the jury,” ’ ” there must appear “ ‘ “a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner.” [Citation.] “Prosecutors have wide latitude to discuss
and draw inferences from the evidence at trial. [Citation.] Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.” ’ [Citation.]” (Ibid.)
b. “Indecent and Prurient” Questions Regarding Offenses
Appellant contends the prosecutor committed prejudicial misconduct by asking
him “indecent and prurient” questions designed to humiliate and embarrass him. We are
25
not persuaded.
Although appellant cites numerous questions posed by the prosecutor that
allegedly constituted misconduct, as the People correctly observe, the defense did not
object to these questions and request an admonition to the jury. Because an objection and
admonition would have cured any harm, the claim of misconduct was forfeited on appeal.
(E.g., People v. Linton (2013) 56 Cal.4th 1146, 1205.)
In any case, even assuming the issue was preserved for appeal, we would find no
prejudicial misconduct as to these questions. The factual circumstances of appellant’s
crimes were crucial to the question of whether he was an SVP, both because they were
qualifying offenses for purposes of section 6600, and because they were part of
appellant’s pattern of committing sexual offenses, to wit: Each assault occurred in the
victim’s home. Appellant blindfolded each victim, threatened each with a knife, and also
made verbal threats. He tied the wrists of one victim and the hands of another, also
hitting and strangling her. The trial court could reasonably conclude that prosecutor’s
questions, while graphic and unpleasant, were properly designed to elicit defendant’s
recollection of the facts in question.
c. Denigration of Defense Expert Witness
Appellant further complains that the prosecutor denigrated Dr. Abbott’s integrity.
During cross-examination, Dr. Abbott testified that he had conducted about 185 SVP
evaluations, in which he completed full evaluations at the request of the defense. He
estimated that about 20 to 25 percent of the time he has declined to conduct evaluations
where, after reading the state’s report, he has agreed that the individual meets the criteria
to be deemed an SVP. Of the 185 SVP evaluations he has conducted, on five or six
occasions, or two to three percent of the time, Dr. Abbott has concurred with the state
experts. The following colloquy then ensued: “Q. And in those five or six times did you
then testify for the state? [¶] A. No. The information is privileged. The state does not
learn of my evaluations in those circumstances. [¶] Q. And so you think that the
evaluations are privileged? [¶] A. Yes. The difference between myself and a state
evaluator [is] it falls under attorney/client privilege. If I conclude that the individual
26
meets the criteria, the defense attorney does not turn my report over to the district
attorney.”
The prosecutor then asked Dr. Abbott whether he possessed a law degree, had ever
been to law school, or had obtained legal training by an objective party. Defense
counsel’s objection that the prosecutor was misstating the law and facts with this line of
questioning was overruled. In any event, the prosecutor ceased this line of questioning.
The next day, defense counsel complained to the court that the prosecutor had committed
misconduct in asking these questions because she sought to lead the jury to believe Dr.
Abbott was biased, when in fact, revealing information about a patient to the prosecutor
would have violated both the attorney-client privilege and the psychotherapist-patient
privilege. “In short,” said defense counsel, “I’m asking that she not do it with any of the
other expert witnesses and that the jury be admonished to disregard the question. That it
was an improper question.”
In response, the prosecutor asserted that SVP proceedings were subject to the rules
of civil discovery, and that if under the civil rules, a request for discovery was made for
any and all evaluations conducted by the defense, an evaluation by a defense expert in
favor of SVP commitment would have to be turned over to the prosecution. The court
denied the motion for an admonition, finding no prosecutorial misconduct, but instructed
the prosecutor not to ask similar questions of other defense experts.
We conclude that, even if the prosecution’s questions were improper, there is no
demonstrable prejudice to appellant. Dr. Abbott’s bias in favor of the defense was
already established prior to the questions about whether he had provided the state with
the five or six evaluations in which he agreed that the individual met the SVP criteria.
First, Dr. Abbott conducted 185 evaluations, all for the defense. Second, he explained
that he would not even take a case if, after reading the state’s evaluation, he believed the
individual meets the criteria of an SVP; he estimated that this occurs 20 to 25 percent of
the time. Third, of the 185 evaluations conducted for the defense, Dr. Abbott had only
agreed with the state evaluators two to three percent of the time. Any questions relating
to privilege and discovery vis-à-vis this small percentage of cases posed little risk of
27
inflaming the jury. On this record, there is no reasonable probability that appellant would
have received a more favorable outcome had the court admonished the jurors that the
questions regarding privilege and discovery should be disregarded. (People v. Watson,
supra, 46 Cal.2d at p. 836.) We similarly find no abridgement of appellant’s right to due
process. “[F]undamental fairness [is] the touchstone of due process.” (Gagnon v.
Scarpelli (1973) 411 U.S. 778, 790.) Any error here was minor, as it did not “ ‘so
infuse[] the trial with unfairness as to deny due process of law.’ ” (Estelle v. McGuire
(1991) 502 U.S. 62, 75.)
4. Alleged Judicial Misconduct or Bias
Appellant contends he was denied a fair trial because the trial court asked defense
experts “pointed, critical question,” while it “soft-pedaled with the state’s experts.” He
also complains that the court made “strange hearsay rulings” with respect to proffered
defense expert testimony. We disagree.
“A court commits misconduct if it persistently makes discourteous and
disparaging remarks so as to discredit the defense or create the impression it is allying
itself with the prosecution. [Citations.]” (People v. Santana (2000) 80 Cal.App.4th
1194, 1206-1207.) “The mere fact that a judge examines a witness at some length does
not establish misconduct . . . .” (People v. Pierce (1970) 11 Cal.App.3d 313, 321.) “[I]t
is not merely the right but the duty of the trial judge to see that the evidence is fully
developed before the trier of fact and to assure that ambiguities and conflicts in the
evidence are resolved insofar as possible.” (People v. Carlucci (1979) 23 Cal.3d 249,
255.) “A trial court has both the discretion and the duty to ask questions of witnesses,
provided this is done in an effort to elicit material facts or to clarify confusing or unclear
testimony.” (People v. Cook (2006) 39 Cal.4th 566, 597; see also Pen. Code, § 1044
[judge has duty to “control all proceedings during the trial . . . with a view to the
expeditious and effective ascertainment of the truth regarding the matters involved”];
Evid. Code, § 775 [court may call witnesses].)
A “ ‘[d]efendant’s failure to object at trial [about alleged judicial misconduct,]
particularly where . . . such action would have permitted the court to clarify any possible
28
misunderstanding resulting from the comments, bars his claim of error on appeal.’
[Citation.] ‘The purpose of the rule requiring timely objection is to give the trial court
the opportunity to cure any error, if possible, by an admonition to the jury.’ [Citation.]”
(People v. Sanders (1995) 11 Cal.4th 475, 531.)
First, appellant did not object to the conduct he now challenges. As such, this
contention is forfeited on appeal. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237.)
In any event, even if we were to conclude appellant’s claims were properly before us,
those claims fail on the merits.
a. Challenged Conduct
(i) Questions Regarding Validity of Criminal History Data
The alleged misconduct arises in the context of the prosecutor’s cross-examination
of defense expert Dr. Abbott, who testified that he relied on a nonpublished study by
Dr. Jesus Padilla that was based on non-public hospital and criminal history records. The
prosecutor questioned Dr. Abbott about the validity of the criminal history in Dr.
Padilla’s study, indicating that it was questionable. The trial court then asked Dr. Abbott
about how Dr. Padilla gained access to the criminal data: “[THE COURT:] How did he
get access to [this information]? He’s a private practitioner? [¶] [THE WITNESS:] No.
He was working at Atascadero State Hospital. [¶] [THE COURT:] How did he gain
access to criminal history records? [¶] [THE WITNESS:] They have a computer at the
hospital and can access it.”
(ii) Leading Questions by Defense Counsel
As further evidence of the trial court’s bias, appellant points to the judge’s
interjection in the following colloquy between defense counsel and Dr. Abbott:
“[MS. GEORGE]: And directing your attention to page three under Roman Numeral IV,
Precommitment Assessment Process, item number D. [¶] What does this protocol say
regarding which test the evaluator is to use? [¶] . . .[¶] [THE WITNESS:] It does not
specify any particular test. [¶] [MS. GEORGE:] Actually, doesn’t it say the evaluator,
according to his or her professional judgment, shall apply tests or instruments along with
other static dynamic risk factors— [¶] [THE COURT:] Miss George, is this
29
impeachment of your own witness, or is this leading or what is this? [¶]
[MS. GEORGE:] It’s leading for the sake of brevity, but I’ll have Doctor Abbott testify
as to what it says. [¶] Doctor Abbott, could you tell us exactly what subsection D says
regarding tests?”
(iii) Hearsay Rulings
As Dr. Abbott proceeded to read from the report, the prosecutor objected on
hearsay grounds, which the court granted and noted that “[i]t will be a continuing
objection.”
Then, as defense counsel sought to clarify that Dr. Abbott had relied in part on the
deposition of Dr. Padilla in another case, the prosecutor again objected on hearsay
grounds: “[MS. LOUIS:] Your Honor, objection to hearsay. And can I have a standing
hearsay objection to this exhibit as well? [¶] [THE COURT:] That will be sustained if
you’re going to be reading parts of the document. [¶] [MS. GEORGE:] I’m not going to
read the document. I’m going to have Doctor Abbott testify to what the document says
since he’s been cross-examined about his reliance on the Padilla documents. [¶] [THE
COURT:] Okay. If you go into those portions that he was cross-examined on. [¶]
[MS. GEORGE:] Thank you. It actually goes to the entire — [¶] [THE COURT:] We’re
not reading the transcript into the record.”
Defense counsel then attempted to ask Dr. Abbott about the expressed purpose of
the Padilla study: “[MS. GEORGE]: And what was his purpose in conducting the study?
[¶] MS. LOUIS: Objection. Hearsay. [¶] THE COURT: Sustained. [¶] MS. GEORGE:
It’s the basis, your Honor, on his reliance on the documents. [¶] THE COURT: It’s
sustained.”
b. Analysis
“The question for us to decide is whether the judge ‘officiously and unnecessarily
usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression that he
[was] allying himself with the prosecution[.]’ [Citation.]” (People v. Clark (1992) 3
Cal.4th 41, 143; see People v. Cummings (1993) 4 Cal.4th 1233, 1305.)
30
In his reply brief, appellant asserts that “the trial judge took off after Dr. Abbott
and disrupted the examination with its hostility to what was being said.”
However, whether a particular question or series of questions by a judge goes too
far is difficult to assess on a cold record because we cannot determine if the tone of any
particular question was other than neutral, and because the transcript does not indicate the
length of pauses by the attorneys in between the answer to one question and the asking of
another. (People v. Raviart (2001) 93 Cal.App.4th 258, 272 [trial court is “ ‘in a better
position than the reviewing court to know when the circumstances warrant or require the
interrogation of witnesses from the bench’ ”].)
And even if this trial judge asked too many questions, that does not mean he lost
his neutrality. Nothing about the content of the questions shows a lack of neutrality.
Although appellant complains about the court’s “strange” hearsay ruling, he neither
provides any legal authority or cogent analysis to support his claim. To meet his burden
on appeal, appellant must do more than point out an error and rest there. In any case, to
the extent the trial court refused to allow defense counsel to ask Dr. Abbott why Dr.
Padilla conducted his study, Dr. Abbott would have based his answer on Dr. Padilla’s
testimony in another case, which was clearly hearsay.
Finally, we observe that the trial court instructed the jury with CALJIC No. 17.30,
which provides: “ I have not intended by anything I have said or done, or by any
questions that I may have asked, or by any ruling I may have made, to intimate or suggest
what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If
anything I have done or said has seemed to so indicate, you will disregard it and form
your own conclusion.” We presume the jury followed this instruction and would
consider the content of the answers to the trial court’s questions and not the fact that the
questions were asked by the trial court in assessing the evidence. (See People v. Cook
(2006) 39 Cal.4th 566, 515–516.) Accordingly, we reject the claim of judicial
misconduct. We similarly find no abridgement of appellant’s right to due process.
31
B. Sufficiency of the Evidence
Appellant contends the evidence is insufficient to support the jury’s finding that he
is an SVP.
“ ‘In reviewing the evidence sufficient to support a commitment under [the
SVPA], “courts apply the same test as for reviewing the sufficiency of the evidence to
support a criminal conviction.” ’ (People v. Carlin (2007) 150 Cal.App.4th 322, 333.)
‘Thus, this court must review the entire record in the light most favorable to the judgment
to determine whether substantial evidence supports the determination below. [Citation.]
To be substantial, the evidence must be “ ‘of ponderable legal significance . . . reasonable
in nature, credible and of solid value.’ ” ’ ( People v. Mercer (1999) 70 Cal.App.4th 463,
466.)” (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088 (McCloud).)
Here, the jury was instructed that, in order to prove that appellant is an SVP, the
People must prove, beyond a reasonable doubt, that he: (1) “has been convicted of a
sexually violent offense against two or more victims,” (2) “has a diagnosed mental
disorder,” and (3) “the disorder makes him . . . a danger to the health and safety of others
in that it is likely that he . . . will engage in sexually violent predatory criminal behavior
unless confined within a secure facility.” (See CALJIC No. 4.19.)
The jury was also instructed that the term “ ‘Diagnosed mental disorder’ includes
a congenital or acquired condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others.” (CALJIC No. 4.19.)
Appellant contends that there is insufficient evidence to support a finding that he
has a “diagnosed mental disorder” because the diagnosis of paraphilia was “invalid” and
the diagnosis of a personality disorder is not a mental disorder sufficient to justify
commitment under the SVPA. We disagree.
1. Paraphilia
Appellant disputes the validity of paraphilia NOS as a sufficient “diagnosed
mental disorder” within the meaning of the SVPA. He further contends that even if this
32
diagnosis was valid, there was insufficient evidence supporting its past or current
application in his case.
Appellant argues, at length, about “the demise of paraphilia NOS.” According to
appellant, a diagnosis of paraphilia NOS “does not suffice for commitment” because
“[n]umerous professions [have] concluded that it is invalid and diagnostically
unreliable.” In support of these contentions, he relies on articles that were not part of the
record below. Accordingly, these materials are not properly before this court. (People v.
Jacinto (2010) 49 Cal.4th 263, 272-273, fn. 5 [appellate court not forum to develop
additional factual record].)
In any event, the fact that not all psychological professionals agree about whether
paraphilia constitutes a mental condition that would justify involuntary civil commitment
does nothing to undermine the sufficiency of the evidence supporting the verdict. (See
Kansas v. Hendricks (1997) 521 U.S. 346, 360, fn. 3 (Hendricks); People v. Flores
(2006) 144 Cal.App.4th 625, 633.) Moreover, that such disagreements exist “do not tie
the State’s hands in setting the bounds of its civil commitment laws. In fact, it is
precisely where such disagreement exists that legislatures have been afforded the widest
latitude in drafting such statutes.” (Hendricks, supra, 521 U.S. at p. 360, fn. 3.)
Consistent with this leeway, the SVPA provides that “[t]he term diagnosed mental
disorder includes conditions . . . 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.” (McCloud, supra, 213
Cal.App. 4th at pp. 1088–1089. See § 6600, subd. (c).)
To the extent appellant challenges the sufficiency of the evidence supporting a
past and present diagnosis, the record belies this claim. Dr. Vognsen explained the basis
of his opinion to the jury as follows: “We have a sexual offense history of him having
been convicted of sexual offenses against three adult women over [a] period of about four
or five years. There [were] also others he was charged [with] offending against, but the
charge was plea bargained out. So we have three victims of very clearly nonconsenting
sexual activities and one that was charged but not convicted. And one where it seems to
33
be he was in the process of wanting to commit a sexual assault on her but she got away
from him. So there’s no charge of any sexual assault against her but a charge of burglary
against her. [¶] So to my way of looking at it, five women who were attacked by him,
clearly for sexual purpose, and I think the fifth one also.”
Dr. Vognsen also considered the facts that appellant was in consensual
relationships during at least some of his offenses, but nevertheless pursued nonconsensual
sex, and that going to prison for his sexual assaults did not deter him from reoffending
shortly after being paroled, demonstrating that he was very strongly driven to commit the
offenses regardless of the consequences. He further testified that appellant’s paraphilia
was current because the disorder was lifelong, though the person could learn to control it
over time with therapy. Dr. Vognsen also discounted the fact that appellant had not raped
recently because he had been in prison or in a heavily supervised hospital environment
for the last several years with little opportunity to reoffend.
Dr. Starr also explained the reasons for her diagnosis of paraphilia. Appellant’s
crimes followed a similar pattern: he found a woman who was home alone, entered her
residence, blindfolded her, threatened her with a knife and verbally, and sexually
assaulted her. She testified that appellant’s explanation that he acted opportunistically in
raping his victims was highly unlikely given the sheer number of times he allegedly
happened to burglarize a woman who was home alone. Indeed, one of his victims offered
him money, and he replied that it was not money he was there for, again demonstrating
that the rape was not opportunistic, but the product of an urge that he planned and carried
out. He reoffended within a short time of being paroled from prison, demonstrating that
he could not control his deviant sexual impulses for nonconsenting sex notwithstanding
the consequences. He also reoffended shortly after escaping from custody, again
demonstrating that his urges overrode his interest in hiding from authorities. In Dr.
Starr’s opinion appellant’s paraphilia was current because paraphilias tend to be chronic
and lifelong, appellant had started but not completed treatment, and appellant had refused
to participate in an assessment based on fear he would react to deviant materials.
34
Although appellant’s experts testified variously that appellant did not suffer from
paraphilia because the disorder could not be diagnosed based on behavior alone
(Dr. Abbott), because his sexual assaults appeared to be opportunistic or the product of
his antisocial personality (Drs. Adams and Murphy), or because paraphilia based on
attraction to nonconsenting sex is an invalid disorder (Dr. Owen), the jury was entitled to
credit the testimony of Drs. Vognsen and Starr, who testified otherwise. (People v.
Flores, supra, 144 Cal.App.4th at p. 633.) Accordingly, appellant’s claim of insufficient
evidence fails.
2. Antisocial Personality Disorder
Appellant next contends antisocial personality disorder standing alone is
insufficient to support a finding that he has a “diagnosed mental disorder” within the
meaning of the SVPA. (§ 6600, subd. (a)(1).) Under the SVPA, a “ ‘[d]iagnosed mental
disorder’ includes a congenital or acquired condition affecting the emotional or volitional
capacity that predisposes the person to the commission of criminal sexual acts in a degree
constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
In appellant’s view, this reference to a disorder that predisposes a person to “criminal
sexual acts” means the qualifying diagnosis must be some form of paraphilia. This does
not mean, however, that the diagnosed mental disorder must be a sexual disorder. For
example, in People v. Burris (2002) 102 Cal.App.4th 1096, 1108-1109, the court
concluded that antisocial personality disorder could qualify as a mental disorder within
the meaning of the SVPA. However, it is not clear whether Burris stands for the
proposition that antisocial personality disorder alone qualifies a defendant for SVP status
because there the defendant also was diagnosed with a paraphilia associated with rape.
We need not enter this debate because here, like in Burris, appellant was dually
diagnosed with paraphilia and antisocial personality.
In sum, it was sufficient for the People to show that appellant suffered from
paraphilia and that his antisocial personality caused him to lose control, become
dangerous to others, and become predisposed to act on his paraphilic interests. There was
substantial evidence supporting the finding that he qualified as an SVP.
35
C. Constitutional Challenges to the SVPA
1. Vagueness
Appellant contends the SVPA is unconstitutionally vague because it fails to define
the “likely” to reoffend standard and fails to define the kind of mental disorder that may
serve as a basis for an SVP finding,
“Due process requires fair notice of what conduct is prohibited. A statute must be
definite enough to provide a standard of conduct for its citizens and guidance for the
police to avoid arbitrary and discriminatory enforcement. [Citations.] ‘Void for
vagueness simply means that criminal responsibility should not attach where one could
not reasonably understand that his contemplated conduct is proscribed.’ [Citation.]
[¶] . . . A statute is not vague if . . . any reasonable and practical construction can be given
to its language. Reasonable certainty is all that is required. [Citations.]” (People v.
Townsend (1998) 62 Cal.App.4th 1390, 1400-1401.) As our Supreme Court has
explained, “a law that is ‘void for vagueness’ not only fails to provide adequate notice to
those who must observe its strictures, but also ‘impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.’ [Citation.]
[¶] . . . [A] claim that a law is unconstitutionally vague can succeed only where the
litigant demonstrates, not that it affects a substantial number of others, but that the law is
vague as to [him] or ‘impermissibly vague in all of its applications.’ [Citations.]”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116.)
a. The “Likely” Risk of Reoffending
Appellant contends that the SVPA is unconstitutionally vague because it fails to
define the term “likely” in quantitative terms. We disagree. 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 (Ghilotti).
36
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 ‘likely ’ to
reoffend if, because of a current mental disorder which 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 appellant’s assertions, Ghilotti’s
clear definition of the phrase “likely to engage in acts of sexual violence” comports with
due process requirements.
The term “likely” has been approved in statutes which are substantially similar to
the SVPA, such as the Kansas law reviewed in Kansas v. Hendricks, supra, 521 U.S. 346.
As noted in Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1163, “The Kansas
scheme applied to sex offenders who suffer from a mental disorder which impairs their
ability to control sexually violent conduct and which ‘ “ ‘makes the person likely’ ” ’ to
engage in sexually violent crimes. [Citation.] The high court approved this statutory
formula even though dangerousness was expressed in terms of a qualifying mental
disorder giving rise to a likelihood of future criminal conduct.” (Ibid.) Because the
likelihood standard under the SVPA for predicting dangerousness is not materially
different from the statutory formula at issue in Hendricks, we reject appellant’s
vagueness challenge.
b. The Term “Mental Disorder”
Appellant next contends the SVPA is unconstitutionally vague because it fails to
define the kind of mental disorder that may serve as a basis for a finding that an offender
is likely to commit a sexually violent crime in the future. Defendant argues that as
formulated, the SVPA would allow any mental disorder, including “eating disorders,
stuttering, sleep terror disorder, separation anxiety, anxiety and phobic disorders
37
generally, kleptomania and pyromania” to serve as a basis for a finding that an offender is
an SVP.
We cannot conclude that the SVPA is unconstitutionally vague as appellant
contends. It defines a diagnosed mental disorder as “a congenital or acquired condition
affecting the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the person a menace to the
health and safety of others.” (§ 6600, subd. (c).) This definition is reasonably certain.
Indeed, our Supreme Court in People v. Williams (2003) 31 Cal.4th 757 (Williams)
described the SVPA’s definition of a diagnosed mental disorder as “clear language.” (Id.
at p. 774.) We see no merit to appellant’s contention that the statute must spell out which
conditions might give rise to this predisposition in order to pass constitutional muster.
The statute spells out standards to allow the trier of fact to determine, with the aid of
expert testimony, whether a defendant meets the standards to qualify as a sexually violent
predator.
We are guided by our Supreme Court’s admonition that “in this nuanced area, the
Legislature is the primary arbiter of how the necessary mental-disorder component of its
civil commitment scheme shall be defined and described.” (Williams, supra, 31 Cal.4th
at p. 774.) As in Williams, “[n]o reason appears to interfere with that legislative
prerogative here.” (Ibid.)
2. Equal Protection Clause
a. SVPA Commitment Scheme
Appellant contends his involuntary SVP commitment violates his federal
constitutional right to equal protection because the SVPA treats him less favorably than
similarly situated individuals committed under other statutes, such as mentally disordered
offenders (MDO’s) and criminal defendants sentenced to life in prison.
The claim of differential treatment focuses on the fact that SVP’s are committed
for an indeterminate term, with the burden placed on them to show they should be
released after being committed, whereas MDO’s are subject to time-limited commitments
38
in which the burden is on the People to prove that a recommitment is justified beyond a
reasonable doubt.
The issues appellant raises have been decided against him by our Supreme Court
in People v. McKee (2010) 47 Cal.4th 1172 (McKee I ), by this court, and by various
other appellate courts (See People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331
(McKee II); People v. McDonald (2013) 214 Cal.App.4th 1367, 1376-1382; People v.
Landau (2013) 214 Cal.App.4th 1, 47-48; People v. McKnight (2012) 212 Cal.App.4th
860, 863-864.) Appellant acknowledges that the appellate decisions uniformly have
adopted and supported the conclusion reached in McKee II. He argues nonetheless that
this court should not accept the conclusions reached in McKee II because the court in
McKee II failed to properly conduct a de novo review, failed to properly apply the strict
scrutiny equal protection analysis, and the facts it relied upon did not justify the disparate
treatment of SVP’s. We disagree with appellant and concur with the court’s reasoning
and holding in McKee II. (People v. McKnight, supra, 212 Cal.App.4th at p. 864.)
Appellant also contends SVP’s are treated unfavorably as compared to criminals
sentenced to life in prison with the possibility of parole. Appellant’s claim fails because
he has not shown SVP’s are similarly situated to that class of criminals. (See McKee I,
supra, 47 Cal.4th at pp. 1202-1203.)
b. SVPA Release Provisions
Relying on McCloud, supra, 213 Cal.App.4th 1076, appellant argues that his case
must be remanded for an evidentiary hearing as to whether the differences between the
release provisions for SVP’s and MDO’s are justifiable.
Under section 6608, if an SVP files a petition for conditional release or
unconditional discharge without the recommendation or concurrence of the Director of
State Hospitals, the court “shall endeavor whenever possible to review the petition and
determine if it is based upon frivolous grounds and, if so, shall deny the petition without a
hearing.” (§ 6608, subd. (a).) In McCloud, supra, 213 Cal.App.4th 1076, the court held
that the defendant’s argument that this provision violates equal protection was not
“wholly without merit” because “[t]here may well be actual disparate treatment of
39
similarly situated persons—and if there is disparate treatment, the state may or may not
be justified in so distinguishing between persons.” (McCloud, at p. 1088.) Accordingly,
the court remanded the case to the trial court “so that both parties may fully brief and
argue [defendant’s] claim that section 6608, subdivision (a), violates the equal protection
clause.” (Ibid.)
The Attorney General argues that whatever the merit of the equal protection claim,
remand is not appropriate in this case because appellant’s appeal is from a decision made
under the SVPA’s initial commitment procedures (§§ 6601–6604), not from a
determination under the postcommitment release procedure set forth in section 6608. We
agree.
It is a “well-settled rule that courts should ‘avoid advisory opinions on abstract
propositions of law. [Citations.]’ ” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549;
People v. Gonzales (1994) 29 Cal.App.4th 1684, 1700.) To prevent advisory opinions,
courts must wait until a case “ ‘has reached, but has not passed, the point that the facts
have sufficiently congealed to permit an intelligent and useful decision to be made.’ ”
(Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171.) Here,
the record does not reflect any action taken by defendant pursuant to section 6608. As
such, we find his equal protection challenge to section 6608 unripe.
3. Ex Post Facto Clause
Appellant acknowledges that McKee I, supra, 47 Cal.4th at pp. 1188-1195,
rejected the ex post facto challenge he presently asserts, and that this court is bound by
McKee I. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The
issues are raised, he states, solely to preserve his right to petition the California Supreme
Court to change its ruling and to preserve his right to seek relief in the federal court.
Therefore, no further discussion is necessary.
IV. DISPOSITION
The commitment order is affirmed.
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_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
41