In Re Pima County Mental Health Cause No. A20020026

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20020026
No. 2 CA-MH 2015-0001-SP
Filed June 23, 2015
Appeal from the Superior Court in Pima County
No. A20020026
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellee
OPINION
Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.
IN RE PIMA COUNTY MENTAL HEALTH CAUSE NO. A20020026
Opinion of the Court
E S P I N O S A, Judge:
¶1 In this appeal, we consider whether appellant John
Sanchez was properly denied reinstatement of his conditional
release pursuant to A.R.S. § 36-3713(C) following a revocation
hearing. By way of background, in August 2003, a jury found
Sanchez to be a sexually violent person as defined in A.R.S.
§ 36-3701(7) of Arizona's Sexually Violent Persons (SVP) Act, A.R.S.
§§ 36-3701 through 36-3717.1. Pursuant to the jury’s verdict, the trial
court ordered Sanchez committed to the custody of the Arizona
Department of Health Services for placement at the Arizona
Community Protection and Treatment Center (ACPTC). This court
affirmed the jury verdict and commitment order on appeal. In re
Commitment of Sanchez, No. 2 CA-MH 2003-0014-SP (memorandum
decision filed Apr. 6, 2005). In 2009, this court affirmed the trial
court’s denial of Sanchez’s subsequent request for discharge. In re
Detention of Sanchez, No. 2 CA-MH 2009-0003-SP (memorandum
decision filed Oct. 8, 2009).
¶2 Sanchez requested release to less-restrictive alternative
conditions pursuant to §§ 36-3710 and 36-3711, in 2012. The trial
court noted that Sanchez’s “response to sex offender treatment has
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been on a constant upward swing since approximately 2008” and
that his doctors’ reports “have illustrated a positive change over
time.” Citing § 36-3714(A), the court also noted that the state could
“no longer meet its burden of proving beyond a reasonable doubt
that [Sanchez’s] disorder has not changed and that he is likely to
engage in acts of sexual violence if discharged.” See also § 36-
3709(A) (state must prove beyond reasonable doubt that petitioner’s
mental disorder has not changed and petitioner remains danger if
released to less restrictive alternative). But, it determined that
“immediate discharge would not be in the best interests of anyone,
including Sanchez himself.” The court therefore ordered conditional
release to Tucson Counseling and Consulting Services, with specific
conditions of release.
¶3 In July 2014, the trial court revoked the conditional
release after Sanchez had admitted having touched a young girl on
her back and a polygraph examiner had reported indicia of
dishonesty during Sanchez’s testing. The court ordered Sanchez
“returned to Arizona Community Protection and Treatment
Center.” This court granted Sanchez’s special action petition in part,
vacating the court’s decision because it had failed to “conduct a
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Opinion of the Court
hearing in compliance with A.R.S. § 36-3713.” Sanchez v. Fields,
No. 2 CA-SA 2014-0047, ¶ 2 (decision order filed Aug. 8, 2014). In
December 2014, after a multi-day hearing, the court again revoked
Sanchez’s conditional release and committed him to total
confinement.
Discussion
¶4 “Because involuntary treatment proceedings may result
in a serious deprivation of appellant’s liberty interests,” In re
Maricopa Cnty. Superior Court No. MH 2001–001139, 203 Ariz. 351,
¶ 8, 54 P.3d 380, 382 (App. 2002), the applicable statutes must be
strictly followed, In re Maricopa Cnty. Superior Court No. MH 2003–
000058, 207 Ariz. 224, ¶ 12, 84 P.3d 489, 492 (App. 2004). We will
uphold a trial court’s findings of fact in this context unless they are
“clearly erroneous or unsupported by any credible evidence.” In re
Maricopa Cnty. Mental Health Case No. MH 94–00592, 182 Ariz. 440,
443, 897 P.2d 742, 745 (App. 1995).
¶5 Pursuant to § 36-3713(C), a trial court is required, within
five days of notice that the person previously conditionally released
has been detained, to schedule a hearing. To order a return to total
confinement, “[a]t the hearing, the court shall determine if the state
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Opinion of the Court
has proved by a preponderance of the evidence that the person” did
not comply with the conditions of release and that, inter alia, return
to total commitment is appropriate. § 36-3713(C). In making its
determination, “[t]he court may admit hearsay evidence if [it] finds
that the hearsay evidence is otherwise reliable.” Id.
¶6 In a somewhat confusing argument, Sanchez apparently
contends that the evidence was insufficient to prove beyond a
reasonable doubt that he poses a danger to others and that a lower
standard of proof “is improper.” As noted above, the statute
provides a “preponderance of the evidence” standard in this
context. § 36-3713(C). Sanchez’s argument on this point centers on
his assertion that “[t]here was insufficient evidence presented to
prove that [he] continues to qualify as an SVP.” But the hearing here
was not aimed at determining Sanchez’s status as an SVP, see, e.g.,
§§ 36-3707, 36-3709, 36-3714, but rather to determine whether his
release to less restrictive placement should be revoked, see § 36-3713.
¶7 In the context of a hearing on a petition for change of
status filed after an annual review or on a petition for discharge, the
state is required to prove “beyond a reasonable doubt” that the
SVP’s mental disorder is unchanged and he or she remains a danger.
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Opinion of the Court
§§ 36-3709, 36-3714. But when the issue is revocation of a
conditional release, the burden of proof is lower, and the liberty
interests Sanchez cites are not implicated because the state has
already met the greater burden in establishing his continuing status
as an SVP. Thus, his apparent argument that a lower standard of
proof is unconstitutional fails—he has not explained how a
heightened standard is constitutionally required in this context.
And his reliance on cases addressing the deprivation of liberty in the
first instance is misplaced. See, e.g., In re Winship, 397 U.S. 358, 367-
68 (1970) (juveniles entitled to finding of proof beyond reasonable
doubt); In re Gault, 387 U.S. 1, 41, 55-56 (1967) (juveniles entitled to
counsel, confrontation, privilege against self-incrimination); see also
Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (holding Kansas’s SVP
Act “comports with due process” and double jeopardy principles).
The trial court created some uncertainty in regard to the nature of
the proceeding by initially referring to § 36-3714, but the remainder
of the proceedings, outlined above, make clear that the court’s
statement referred to the state’s ability to meet its burden related to
whether Sanchez posed a continued danger to the community such
that total confinement was required.
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Opinion of the Court
¶8 Sanchez next contends that his therapist, Jennifer
Balistreri, was unqualified to determine whether he “continue[d] to
have a mental disorder” because she is not a licensed psychologist or
psychiatrist, which he argues is required by §§ 36-3702 and 36-3708.
But, § 36-3708 does not require testimony from a psychologist or
psychiatrist, but only a “competent professional.” Further, that
section relates to the annual examination of a committed person, not
to revocation of conditional release. Section 36-3713, which relates
to revocation of release, does not require testimony from any
particular type of mental health expert. Nor does § 36-3702, which
provides the requirements for establishing that a person is an SVP in
the first instance, apply in this context.
¶9 Furthermore, although Sanchez asserts that Balestreri’s
testimony was “improper expert testimony,” he fails to develop any
meaningful argument on this point, and any such claim is therefore
waived. See Ariz. R. Civ. App. P. 13(a)(7); Polanco v. Indus. Comm’n,
214 Ariz. 489, n.2, 154 P.3d 391, 393–94 n.2 (App. 2007) (failure to
develop and support argument waives issue on appeal). We
likewise reject his claim that Balestreri presented improper hearsay
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Opinion of the Court
evidence because, as noted above, § 36-3713(C) specifically allows
hearsay evidence.
¶10 Sanchez next asserts his statements made to Balestreri
should have been suppressed because they were involuntary in that
they violated his rights under the Fifth Amendment to the United
States Constitution. As the state points out, however, SVP
proceedings are “strictly civil in nature” and the “privilege against
compulsory self-incrimination does not apply.”1 In re Commitment of
Conn, 207 Ariz. 257, ¶¶ 7-11, 85 P.3d 474, 476-77 (App. 2004).
¶11 Last, Sanchez argues “there is no reliability in the
polygraph” testing. To the extent Sanchez is claiming the results of
the testing should not have been admitted, we note that Sanchez
offered the polygraph report at the hearing, and the state’s
acquiescence essentially constituted a stipulation by the parties to its
admission. Cf. State v. Hoskins, 199 Ariz. 127, ¶ 69, 14 P.3d 997, 1014
(2000), supp. op. , 204 Ariz. 572, 65 P.3d 953 (2003) (references to
1 United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005), on
which Sanchez relies, is inapposite. That case involved a defendant
who was required to submit to polygraph examinations as part of a
treatment program ordered as a condition of probation in a criminal
matter. Id. at 1131.
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polygraph admissible only upon stipulation). Furthermore, the
purpose of the polygraph test here was to monitor Sanchez’s
treatment pursuant to § 36-3710(E) and did not go to the ultimate
issue, as evidenced in Balestreri’s testimony. Moreover, even if there
were any error in the admission of the polygraph results, it was
invited because Sanchez moved to admit the report. See In re
MH2009-002120, 225 Ariz. 284, ¶ 8, 237 P.3d 637, 640 (App. 2010)
(party who leads court to take action may not assign action as error).
Finally, to the extent he argues it undermines the trial court’s factual
findings, we reject this claim because the findings were supported
by substantial evidence. Maricopa Cnty. No. MH 94–00592, 182 Ariz.
at 443, 897 P.2d at 745. Sanchez himself acknowledged at the
hearing that the polygraph results were correct insofar as they
indicated he had not been forthcoming in relation to the incident
about which he was questioned.
Disposition
¶12 For all of the foregoing reasons, the trial court’s order is
affirmed.
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