Carty v. Nelson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY D. CARTY,  No. 03-56766
Petitioner-Appellant,
D.C. No.
v.
 CV-01-00721-IEG/
CRAIG NELSON, Warden; BILL JFS
LOCKYER, Attorney General,
OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
May 3, 2005—Pasadena, California
Filed October 17, 2005
Before: Harry Pregerson, Raymond C. Fisher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Pregerson
14199
14202 CARTY v. NELSON
COUNSEL
Matthew D. Brown, CJA, San Francisco, California (argued);
Christopher R.J. Pace, Cooley Goodward LLP, San Diego,
California (briefed), for the petitioner-appellant.
CARTY v. NELSON 14203
Bradley A. Weinreb, Deputy Attorney General, San Diego,
California, for the respondents-appellees.
OPINION
PREGERSON, Circuit Judge:
In April 1991, California prisoner Jimmy D. Carty
(“Carty”) pled guilty to seven counts of Committing a Lewd
and Lascivious Act Upon a Child Under the Age of 14, in vio-
lation of California Penal Code section 288(a). Carty was sen-
tenced to state prison for a term of sixteen years. Eight years
later — a day before Carty was to be released on parole —
the San Diego County District Attorney filed a civil commit-
ment petition against Carty pursuant to California’s Sexually
Violent Predators Act (“SVP Act”).
Consequently, in June 1999, a civil commitment hearing
was conducted in San Diego Superior Court to determine
whether Carty was a sexually violent predator (“SVP”) who
required civil commitment for a period of two years. After
this hearing, Carty was classified as an SVP likely to engage
in sexually violent criminal behavior against others, and
ordered civilly committed in Atascadero State Hospital.
Carty appealed his June 1999 civil commitment to the Cali-
fornia Court of Appeal and the California Supreme Court.
Both courts ruled against Carty.
In May 2001, near the end of Carty’s first civil commit-
ment term, the San Diego County District Attorney petitioned
for Carty’s re-commitment. The District Attorney was suc-
cessful in re-committing Carty to a second two-year term in
October 2001.
In April 2003, while Carty was serving his second term,
Carty filed a pro se habeas petition under 28 U.S.C. § 2254
14204 CARTY v. NELSON
in federal district court challenging his initial June 1999 civil
commitment. Carty contended that his Sixth Amendment right
to confront witnesses and his Fourteenth Amendment due pro-
cess rights were violated at the June 1999 commitment hear-
ing because the superior court relied on inadmissible hearsay
consisting of victim statements contained in Carty’s probation
report.
In May 2003, while review of Carty’s federal habeas peti-
tion was pending in district court, the San Diego County Dis-
trict Attorney initiated another civil commitment proceeding
in state court to re-commit Carty for a third term. This time,
the District Attorney was unsuccessful in re-committing
Carty. Specifically, in October 2003, a jury found that Carty
should no longer be civilly committed under the SVP Act.
Accordingly, the superior court ordered Carty to be immedi-
ately released from civil commitment.
Shortly before his release from civil commitment, the dis-
trict court denied Carty’s pending habeas petition with preju-
dice. Carty now appeals the district court’s order denying his
habeas petition. We have jurisdiction under 28 U.S.C.
§ 2253(a), and as discussed below, we deem the controversy
live, reach the merits, and affirm.
I. FACTS AND PROCEDURAL HISTORY
A. California’s Sexually Violent Predators Act
California’s SVP Act requires that a prisoner who was pre-
viously convicted of certain enumerated violent sex crimes be
evaluated by the Department of Corrections, the Board of
Prison Terms, and the California Department of Mental
Health six months before being released from prison to deter-
mine whether the prisoner may be a potential SVP. See Cal.
Welf. & Inst. Code § 6601(a)(1). This screening involves
review of the prisoner’s background and criminal record. See
id. § 6601(b). If the Department of Corrections concludes that
CARTY v. NELSON 14205
the prisoner is likely to be an SVP, the prisoner is referred to
the Department of Mental Health for a “full evaluation” to
determine whether the prisoner meets the other criteria in the
SVP Act. See id.
This full evaluation must be conducted in accordance with
a standardized assessment protocol by at least two practicing
psychiatrists or psychologists designated by the Department
of Mental Health. See id. § 6601(c) & (d). The two evaluators
must agree that the prisoner has a mental disorder and is dan-
gerous within the meaning of section 6600 for proceedings to
go forward under the SVP Act.1 See id. § 6601(d). If the two
evaluators agree that the prisoner should be civilly committed
under the SVP Act, the Department of Mental Health will
then transmit a request for a petition for commitment to the
county in which the alleged SVP was convicted. At that time
the Department of Mental Health will also send the county
copies of the psychiatric evaluations prepared by the evalua-
tors and any other supporting documentation. See id.
§ 6601(d), (h), & (i).
“If the county’s designated counsel [either the district attor-
ney or county counsel] concurs with the recommendation, a
petition for commitment shall be filed in the [county’s] supe-
rior court . . . .” Id. § 6601(i). Once the petition for civil com-
mitment is filed in the superior court by the county’s
designated counsel, a superior court judge will then hold a
“probable cause hearing.” Id. § 6602(a). At this hearing, the
prisoner is entitled to assistance of counsel.
1
If the two Department of Mental Health evaluators disagree whether
the statutory criteria are present, “two independent professionals” must be
selected and “further examination” of the alleged SVP must be conducted.
See Cal. Welf. & Inst. Code § 6601(e); see also id. § 6601(f) & (g). “[A]
petition to request commitment . . . shall only be filed if both independent
professionals . . . concur that the person meets the criteria for commitment
. . . .” Id. § 6601(f).
14206 CARTY v. NELSON
The superior court judge will determine at the hearing
whether there is probable cause to believe that the prisoner is
likely to engage in sexually violent, predatory criminal behav-
ior after being released from prison. See id. If the judge deter-
mines there is no probable cause, the judge shall dismiss the
petition for commitment. If, however, the judge determines
that probable cause exists, the judge must order the prisoner
to remain in custody pending a civil commitment trial to
determine whether the prisoner is, by reason of a diagnosed
mental disorder, a danger to the health and safety of others
and likely to engage in acts of sexual violence upon release
from prison.
Despite the fact that the commitment trial is civil in nature,
the prisoner is nonetheless “entitled to a trial by jury, to the
assistance of counsel, to the right to retain experts or profes-
sional persons to perform an examination on his or her behalf,
and to have access to all relevant medical and psychological
records and reports.” Id. § 6603. If the prisoner is indigent,
then she or he is entitled to court-appointed counsel and court-
appointed experts. If the prisoner or county’s designated
counsel do not demand a jury trial, a bench trial will be con-
ducted. Id. § 6603(e). The court or jury shall determine
whether, beyond a reasonable doubt, the prisoner is a sexually
violent predator. Id. § 6604. A unanimous verdict is required
in any jury trial. Id. § 6603(f). “If the court or jury is not satis-
fied beyond a reasonable doubt that the person is a sexually
violent predator, the court shall direct that the person be
released at the conclusion of the term for which he or she was
initially sentenced.” Id. But if the court or jury determines fol-
lowing a trial that the person is a sexually violent predator,
then the prisoner is deemed an SVP and civilly committed for
two years in a facility designated by the California Depart-
ment of Mental Health. See id. § 6604. The SVP is then com-
mitted to the custody of the Department of Mental Health “for
appropriate treatment and confinement in a secure facility
. . . .” Id.
CARTY v. NELSON 14207
An SVP may not be civilly committed for more than two
years unless a new petition for commitment is filed and a sub-
sequent re-commitment is obtained pursuant to the same safe-
guards detailed above. See id. Once every year, the civilly
committed SVP has a right to a “show cause” hearing to
determine whether her or his condition has changed such that
she or he no longer poses a danger to others. See id. § 6605.
If the superior court at the show cause hearing determines that
the SVP’s condition has changed, then another hearing is held
by the court to permit the State to show that the SVP remains
a danger to others. Again, if the prisoner or county’s desig-
nated counsel do not demand a jury trial, a bench trial will be
conducted to determine whether the SVP remains a danger to
others. If the court or jury finds in favor of the civilly commit-
ted SVP, then the person must be released. If, however, the
court or jury finds in favor of the State, the person is re-
committed for two more years. See id. §§ 6605, 6608.
B. Carty’s Underlying Criminal Offenses and
Subsequent Civil Commitment as an SVP
In April 1991, Carty entered into a plea agreement on seven
counts of Committing a Lewd and Lascivious Act Upon a
Child Under the Age of 14, in violation of California Penal
Code section 288(a). Carty admitted that two of the offenses
involved sexual contact against his sons. Carty’s guilty plea
on the remaining five counts was entered pursuant to People
v. West, 91 Cal. Rptr. 385 (1970). This meant that Carty did
not admit the specific details about his conduct on the remain-
ing five counts when he pled guilty. See In re Alvernaz, 8 Cal.
Rptr. 2d 713, 718 (1992) (stating that a plea proffered under
People v. West is a plea of nolo contendere that does not
admit a factual basis for the plea). After Carty entered his
guilty plea, a probation report was prepared. The probation
report relied on and summarized police reports that contained
statements from the victims and their parents. Carty was sen-
tenced to sixteen years in state prison.
14208 CARTY v. NELSON
In April 1999, one day before Carty was to be released on
parole, the San Diego County District Attorney filed a petition
with the San Diego Superior Court to have Carty civilly com-
mitted for a period of two years under the SVP Act. To civilly
commit Carty as an SVP, the District Attorney needed to
prove beyond a reasonable doubt that: (1) Carty had two pred-
icate crimes involving “substantial sexual conduct;”2 (2) Carty
had a mental disorder which made him a danger to others; and
(3) Carty was likely to re-offend on account of his mental dis-
order. See Cal. Welf. & Inst. Code §§ 6600(a)(1), 6604.
On April 30, 1999, Carty appeared before the superior
court and waived his right to a probable cause hearing. The
superior court scheduled another hearing for June 23, 1999,
and ordered Carty to be returned to custody. When Carty
returned to the superior court, he waived his right to a jury
trial.
On June 24, 1999, a civil commitment hearing was held
before Superior Court Judge Norbert Ehrenfreund to deter-
mine whether Carty was an SVP who required civil commit-
ment. No witnesses were called, and the case was decided by
the superior court judge solely on documentary evidence.
Carty’s counsel did not object to admission of the reports pre-
pared by the State’s mental health experts as evidence that
Carty had two predicate crimes involving “substantial sexual
conduct” (the second element) and that Carty had a mental
disorder that made him a danger to others (the third element).
Carty’s counsel, however, contested the admission of the pro-
2
“ ‘Substantial sexual conduct’ means penetration of the vagina or rec-
tum of either the victim or the offender by the penis of the other or by any
foreign object, oral copulation, or masturbation of either the victim or the
offender.” Cal. Welf. & Inst. Code § 6600.1. In this case, all of the “sub-
stantial sexual conduct” involved masturbation. California courts have
determined that “masturbation under the [SVP Act] encompasses any
touching or contact, however slight, of the genital of either the victim or
the offender, with the requisite intent . . . .” People v. Chambless, 88 Cal.
Rptr. 2d 444, 451 (1999).
CARTY v. NELSON 14209
bation report as proof that Carty’s conduct in two of his West
offenses involved “substantial sexual conduct” (the first ele-
ment). Carty objected to the use of the probation report
because he contended that it contained inadmissible hearsay.
Notwithstanding Carty’s objections, the superior court
judge admitted the probation report into evidence. The proba-
tion report provided the crucial evidence for the state court to
conclude that Carty’s acts in two of his West offenses
amounted to “substantial sexual conduct.” On the basis of this
finding, the superior court ruled that Carty was an SVP and
ordered him to be civilly committed for two years. Carty
appealed his two-year civil commitment first to the California
Court of Appeal, and then to the California Supreme Court.
C. Carty’s California Appellate Proceedings
In his appeal to the California Court of Appeal, Carty con-
tended that the superior court judge erred in civilly commit-
ting him as an SVP in June 1999. According to Carty, he
should not have been deemed an SVP because (1) the proba-
tion report used at his initial commitment hearing was based
on multiple levels of hearsay and therefore inadmissible, and
(2) the admission of the probation report at the commitment
hearing violated his Sixth Amendment right to confront the
witnesses against him and his Fourteenth Amendment due
process rights.
The California Court of Appeal rejected Carty’s hearsay
argument on the basis that California Welfare and Institution
Code section 6600(a) is a statutory hearsay exception that per-
mits documentary evidence to be used to prove the details
underlying the commission of an offense that led to a prior con-
viction.3 The court also concluded that because the SVP Act
3
“Conviction of one or more of the crimes enumerated in this section
shall constitute evidence that may support a court or jury determination
that a person is a sexually violent predator, but shall not be the sole basis
14210 CARTY v. NELSON
entails a civil, and not a criminal, proceeding, the Sixth
Amendment right to confront witnesses does not attach.
Finally, the California Court of Appeal held that Carty’s due
process rights were not violated because Carty had the ability
to call witnesses and to challenge the accuracy of the proba-
tion officer’s report. According to the California appellate
court, the civil commitment proceeding did not violate
Carty’s due process rights to confrontation and cross-
examination, and the procedures and safeguards prescribed by
the SVP Act meet due process standards.
After this unfavorable decision, Carty sought review by the
California Supreme Court. On July 19, 2000, the California
Supreme Court summarily denied Carty’s request for review.
Following his failures in the California State Courts, Carty
filed a pro se habeas petition in the United States District
Court for the Southern District of California.
D. Carty’s Federal Habeas Proceedings
On April 23, 2001, while Carty was serving his initial two-
year term imposed by the San Diego Superior Court in June
1999, he filed a pro se federal habeas petition, challenging his
June 1999 civil commitment. Carty argued that the superior
court violated his Sixth Amendment right to confront the wit-
nesses against him and his Fourteenth Amendment due pro-
cess rights by relying on inadmissible hearsay to conclude
that his conduct was “substantial sexual conduct.”
On May 3, 2001, while Carty’s habeas petition was pend-
ing before the district court — but before the two-year term
for the determination. The existence of any prior convictions may be
shown with documentary evidence. The details underlying the commission
of an offense that led to a prior conviction, including a predatory relation-
ship with the victim, may be shown by documentary evidence, including,
but not limited to, preliminary hearing transcripts, trial transcripts, pro-
bation and sentencing reports, and evaluations by the State Department
of Mental Health.” Cal. Welf. & Inst. Code § 6600.1 (emphasis added).
CARTY v. NELSON 14211
of his June 1999 commitment expired — the San Diego
County District Attorney initiated a second civil commitment
proceeding against Carty in superior court. On October 29,
2001, Carty was once again adjudged to be an SVP and
ordered re-committed to a second two-year term.
While Carty was serving his second civil commitment
term, United States Magistrate Judge James F. Stiven filed his
report pursuant to 28 U.S.C. § 636(b)(1) on February 10,
2003, recommending that Carty’s federal habeas petition be
denied. Carty filed objections to the Magistrate Judge’s
Report and Recommendation. On May 23, 2003, the San
Diego County District Attorney initiated a third commitment
proceeding against Carty in San Diego Superior Court before
the second two-year term for Carty’s October 2001 re-
commitment expired.
While the San Diego County District Attorney’s May 2003
re-commitment petition was pending in state court, District
Judge Irma E. Gonzalez conducted a de novo review of
Carty’s objections to the Magistrate Judge’s Report and Rec-
ommendation. On July 31, 2003, the district court filed an
order adopting the Magistrate Judge’s Report and Recommen-
dation and denied Carty’s habeas petition.4 The district court
concluded that habeas relief was not warranted. According to
the district court, the California Court of Appeal’s decision
that Carty was not denied his due process rights when the
superior court relied on his probation report to civilly commit
him was not contrary to or an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court.
On October 24, 2003, after the district court denied Carty’s
4
In its order, the district court also granted a Certificate of Appealability
“as to the claim that during the civil commitment hearing, the state court
improperly considered the facts underlying the five counts to which peti-
tioner pled guilty pursuant to People v. West.”
14212 CARTY v. NELSON
habeas petition, a commitment hearing was held in superior
court on the San Diego County District Attorney’s pending
re-commitment petition. This hearing was to determine
whether Carty should be re-committed for a third two-year
term. Following the hearing, a jury unanimously determined
that Carty was no longer an SVP, and the superior court
ordered Carty unconditionally released from civil commit-
ment the same day.
Although he is no longer civilly committed as an SVP,
Carty, through appointed counsel, now appeals the district
court’s denial of his habeas petition which challenged his ini-
tial civil commitment. Carty argues that had the district court
granted his habeas petition, then his initial civil commitment
(in June 1999) and his second re-commitment (in October
2001) would have been nullified, and as a result, he would not
need to verify his residency and employment every ninety
days, as required by the California SVP Act. See Cal. Penal
Code § 290(a)(1)(E) (“[E]very person who has ever been
adjudicated a sexually violent predator . . . shall, after his or
her release from custody, verify his or her address no less than
once every 90 days and place of employment, including the
name and address of the employer . . . .”).
II. ANALYSIS
A. The Case is Not Moot
[1] Before we consider the merits of Carty’s petition, we
must determine “whether it presents a case or controversy
under Article III of the Constitution.” Jackson v. Cal. Dep’t
of Mental Health, 399 F.3d 1069, 1071 (9th Cir. 2005); see
also Caswell v. Calderon, 363 F.3d 832, 836 (9th Cir. 2004)
(“A case is moot if it does not satisfy the case-or-controversy
requirement of Article III, § 2, of the Constitution.”).
The case-or-controversy requirement demands that,
through all stages of federal judicial proceedings, the
CARTY v. NELSON 14213
parties continue to have a personal stake in the out-
come of the lawsuit. This means that, throughout the
litigation, the plaintiff must have suffered, or be
threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable
judicial decision.
Caswell, 363 F.3d at 836 (citations and quotation marks omit-
ted). Upon release, “some concrete and continuing injury
other than the now-ended incarceration or parole — some
‘collateral consequence’ of the conviction — must exist if the
suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7
(1998). Here, the San Diego County District Attorney con-
tends (1) that Carty has been released from civil commitment
and there is no collateral consequence as a result of his prior
adjudication as an SVP; and (2) that even if there is a collat-
eral consequence, a favorable judicial decision will not pro-
vide Carty with redress. As discussed below, we disagree with
both contentions.
1. Collateral Consequences Exist
As an SVP, Carty must verify his address and place of
employment every ninety days with the California Depart-
ment of Justice. According to the State, this obligation to
merely “verify” residency and employment information every
ninety days under California Penal Code section 290(a)(1)(E)
does not meet the case or controversy requirement of Article
III because this obligation is independent of Carty’s civil
commitment as an SVP. See Cal. Penal Code § 290(a)(1)(A)
(requiring lifetime registration of specified sex offenders). We
disagree.
[2] Carty’s injury is continuing and actual because, as a for-
mer SVP, he is subject to incarceration for up to a year if he
fails to verify his residence and employment record every
ninety days. See Cal. Penal Code § 290(a)(1)(E) & (g)(5).
This amounts to an injury in fact. See Jackson, 399 F.3d at
14214 CARTY v. NELSON
1073 (stating that the continuing effects of commitment may
be significant enough to satisfy the injury in fact requirement
for standing, and a decision invalidating the state court’s order
would remedy those continuing effects). Thus, we conclude
that Carty is suffering a concrete and continuing injury suffi-
cient to satisfy Article III’s case or controversy requirement.
2. Relief is Available
Because Carty is no longer committed under the June 1999
initial civil commitment order that he challenged in his habeas
petition, the State contends that we cannot provide Carty with
any meaningful relief. This is not true.
Carty first argues that our decision in Hubbart v. Knapp,
379 F.3d 773 (9th Cir. 2004), controls as to whether his
appeal is moot. There, the State argued that Hubbart’s claim
that his commitment under the SVP Act violated his constitu-
tional rights was moot because Hubbart petitioned for habeas
relief from his initial term of confinement, which had expired.
We held that Hubbart’s petition was not moot because his
claims were capable of repetition yet evading review. See id.
at 777-78 (noting that a two-year commitment under the SVP
Act is too short a time for the validity of the commitment to
be fully litigated). We stated that an action is capable of repe-
tition yet evading review when: “(1) the challenged action [is]
in its duration too short to be fully litigated prior to cessation
or expiration, and (2) there [is] a reasonable expectation that
the same complaining party [will] be subject to the same
action again.” Id. at 777 (citation and internal quotation marks
omitted). However, in this case, unlike Hubbart, Carty cannot
show that the claim in his habeas petition challenging the
validity of his June 1999 initial civil commitment is capable
of repetition yet evading review: in October 2003, Carty was
released after a jury determined, beyond a reasonable doubt,
that he was no longer an SVP and should not be re-committed
for a third term.
CARTY v. NELSON 14215
Carty next contends that the second re-commitment pro-
ceeding in October 2001 was tainted because the San Diego
County District Attorney was not required to prove “substan-
tial sexual conduct” a second time, but merely relied on the
finding from the June 1999 initial civil commitment hearing.
In essence, Carty argues (1) that the District Attorney could
not have legally moved to re-commit him in October 2001
absent the earlier unconstitutional June 1999 initial civil com-
mitment; and (2) that the District Attorney was not required
to re-prove at the October 2001 hearing that he perpetrated
“substantial sexual conduct” on his child victims. Conse-
quently, Carty states that our court could allow him, if neces-
sary, to seek leave from the district court to amend his April
2001 federal habeas petition to challenge the second re-
commitment in October 2001 on the same grounds as he cur-
rently challenges his initial civil commitment in June 1999.
[3] Carty’s second argument has merit. Although Carty’s
instant appeal challenges only his June 1999 initial civil com-
mitment proceeding, if we conclude that the state court’s find-
ing of “substantial sexual conduct” at the June 1999 hearing
was unconstitutional, then Carty’s October 2001 hearing
would also be unconstitutional. Put another way, if we find
Carty’s due process argument persuasive, we can strike both
the June 1999 civil commitment and the October 2001 re-
commitment, and relieve Carty from the additional reporting
requirements placed on an SVP. Accordingly, Carty’s appeal
is not moot because we could grant him relief.
B. Carty’s Sixth Amendment Right to Confrontation
and Fourteenth Amendment Due Process Rights
Were Not Violated
During Carty’s civil commitment proceedings before the
San Diego Superior Court, the San Diego County District
Attorney used documentary evidence that included hearsay to
prove that Carty engaged in “substantial sexual conduct”
against his child victims. Carty contends that the district court
14216 CARTY v. NELSON
erred in denying him habeas relief because the District Attor-
ney’s use of this documentary evidence violated his constitu-
tional rights. With the demanding standards governing federal
habeas relief under 28 U.S.C. § 2254 in mind, we address the
merits of Carty’s appeal, and conclude that the district court
did not err in denying Carty habeas relief.
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a habeas petition cannot be granted unless
a state court decision was “contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). A state court decision is “contrary to”
Supreme Court precedent if the state court (1) arrived at a
conclusion opposite to that reached by the Supreme Court on
a question of law or (2) confronted facts that are materially
indistinguishable from relevant Supreme Court precedent but
arrived at an opposite conclusion. See Williams v. Taylor, 529
U.S. 362, 405 (2000). An “unreasonable application” of
Supreme Court law occurs when “the state court identifies the
correct governing legal principle . . . but unreasonably applies
that principle to the facts of the prisoner’s case.” Id. at 413;
see also Powell v. Galaza, 328 F.3d 558, 563 (9th Cir. 2003)
(“The state court need not cite or even be aware of the gov-
erning Supreme Court cases, so long as neither the reasoning
nor the result of the state-court decision contradicts them.”)
(internal quotation marks omitted). Subject to these limita-
tions, we review de novo the district court’s denial of a habeas
petition, see Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th
Cir. 2005), looking to the “last reasoned decision” by a state
court, see Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002),
which in this case is the California Court of Appeal’s unpub-
lished opinion.
2. Carty’s Sixth Amendment Rights
Carty points out that in June 1999 the San Diego County
District Attorney used documentary evidence — as permitted
CARTY v. NELSON 14217
by the SVP Act — to prove that he was an SVP who required
civil commitment. Carty then argues that he was deprived of
his Sixth Amendment right to confront his accusers (child vic-
tims) in court, to have them testify under oath, and to cross-
examine them on the documentary evidence that contained
their statements that he had engaged in “substantial sexual
conduct” against them. This argument fails because the com-
mitment proceedings under the SVP Act are civil, not crimi-
nal.
[4] The “fact that a proceeding will result in loss of liberty
does not ipso facto mean that the proceeding is a ‘criminal
prosecution’ for purposes of the Sixth Amendment.” Midden-
dorf v. Henry, 425 U.S. 25, 37 (1976). We recognize that
involuntary civil commitment “constitutes a significant depri-
vation of liberty that requires due process protection.”
Addington v. Texas, 441 U.S. 418, 425 (1979). But the Sixth
Amendment right to confrontation does not attach in civil
commitment proceedings. Cf. United States v. Sahhar, 917
F.2d 1197, 1205-06 (9th Cir. 1990) (“[F]ederal commitment
serves a regulatory, rather than punitive, purpose and section
4246 [permitting civil commitment of mentally incompetent
prisoners due for release] need not incorporate the right to a
jury trial.”). Indeed, “the procedures required for a civil com-
mitment are not nearly as rigorous as those for criminal trials,
or even juvenile proceedings.” Id. at 1206 (internal citations
omitted). We therefore reject Carty’s argument that his Sixth
Amendment rights were violated during his initial civil com-
mitment proceeding in June 1999.
3. Carty’s Fourteenth Amendment Due Process
Rights
As originally enacted, the SVP Act did not permit the use
of documentary evidence. The California State Legislature,
however, modified the SVP Act “after prosecutors com-
plained that they must bring victims back to court to re-
litigate proof of prior convictions.” People v. Otto, 109 Cal.
14218 CARTY v. NELSON
Rptr. 2d 327, 333 (2001) (citation and internal quotation
marks omitted).
Carty argues that his substantive due process rights were
violated when the San Diego County District Attorney used
— as permitted by the SVP Act — documentary evidence to
prove that Carty engaged in “substantial sexual conduct” with
his child victims. Specifically, Carty complains that the supe-
rior court improperly admitted statements from his victims
(ages five through fourteen) as memorialized in his probation
report. In addition, Carty argues he was not given the same
protections as California residents facing general civil com-
mitment proceedings. In short, Carty claims that his constitu-
tional rights were violated when unreliable documentary
evidence was used against him during his civil commitment
proceedings under the SVP Act.
To analyze Carty’s due process challenge, we first look to
Vitek v. Jones, 445 U.S. 480 (1980), where the Supreme Court
decided whether Nebraska violated a prisoner’s due process
rights by transferring him from prison to a state mental hospi-
tal for treatment. The Court held that in order to satisfy due
process, a prisoner facing involuntary commitment to a men-
tal hospital is entitled to: (1) written notice; (2) a hearing at
which the evidence being relied upon for the commitment is
disclosed to the prisoner; (3) an opportunity at the hearing for
the prisoner to be heard in person, to present testimony and
documentary evidence, and to cross-examine witnesses called
by the State; (4) an independent decision-maker; (5) reasoned
findings of fact; (6) legal counsel; and (7) effective and timely
notice of these rights. See id. at 494-97.
[5] Next we look to the Supreme Court’s decision in Kan-
sas v. Hendricks, 521 U.S. 346 (1997), where the Court con-
sidered a substantive due process challenge to the Kansas
SVP Act. See id. at 356. The Court rejected Hendrick’s chal-
lenge and stated that “[w]e have consistently upheld such
involuntary commitment statutes provided the confinement
CARTY v. NELSON 14219
takes place pursuant to proper procedures and evidentiary
standards.” Id. at 357. The Court noted that “[t]he numerous
procedural and evidentiary protections afforded” a potential
SVP did “not transform a civil commitment proceeding into
a criminal prosecution,” but rather demonstrated that the Leg-
islature had “taken great care to confine only a narrow class
of particularly dangerous individuals, and then only after
meeting the strictest procedural standards.” Id. at 364-65. In
the end, the Court held that the Kansas SVP Act comported
with due process requirements and entailed civil and not crim-
inal proceedings for constitutional purposes. Id. at 370-71.
[6] In addition to these decisions, the California Supreme
Court’s opinion in Otto is enlightening. In Otto, the California
Supreme Court concluded that the SVP Act procedures,
including its statutory hearsay exception, did not violate a
defendant’s right to due process. See Otto, 109 Cal. Rptr. 2d
at 334-38. Otto challenged the use of child victim statements
contained in a probation report that were used to establish
“substantial sexual conduct” in his SVP Act civil commitment
proceedings. Like Carty, Otto argued that the victim state-
ments did not possess “sufficient indicia of reliability to sat-
isfy due process.” See id. at 335. The California Supreme
Court disagreed, and noted that although Otto pled no contest,
the factual basis for his plea was contained in the police
reports which detailed the predicate offenses. See id. The Cal-
ifornia Supreme Court also noted that Otto received the pro-
bation report prior to his sentencing on the predicate offenses
and did not challenge its contents when he entered his guilty
plea before the state trial court. See id. at 336-37. Carty, like
Otto, received his probation report prior to being sentenced in
April 1991 for the predicate offenses and did not challenge
the contents of the probation report.
As to Otto’s confrontation claims, the California Supreme
Court noted that Otto did not attempt to call any witnesses of
his own, and that Otto had the opportunity to confront his
child victims at the time the underlying criminal charges were
14220 CARTY v. NELSON
filed, “but instead chose to accept a plea bargain.” Id. at 338.
Similarly, Carty decided in April 1991 to accept a plea bar-
gain as to the seven counts of lewd acts against children
instead of confronting these witnesses at the time the underly-
ing charges were filed.
[7] In light of Vitek, Hendrick, and the persuasive opinion
in Otto, we reject Carty’s current due process challenge.5
First, before being civilly committed under the California
SVP Act, Carty was accorded all of the procedural protections
identified in Vitek during his June 1999 initial civil commit-
ment hearing.
[8] Second, Carty fails to identify any Supreme Court case
which imposes an obligation on the San Diego County Dis-
trict Attorney to proffer only live testimony at civil commit-
ment hearings under the SVP Act. In these hearings, the
superior court needs to find facts relating to the circumstances
of sex offenses which are predominantly committed in pri-
vate. Because of the incentive for defendants to enter into plea
agreements, many of the facts underlying sex offenses are not
determined by a trier of fact in a criminal proceeding. This
means that the main witnesses at a sex offense trial usually
are the victim and the offender. That is why, unlike other civil
commitment proceedings, the SVP Act’s special hearsay
exception “intend[s] to relieve victims of the burden and
trauma of testifying about the details of the crimes.” Otto, 109
Cal. Rptr. 2d at 333. Carty argues that the admission of the
victims’ statements in the probation report was fundamentally
unfair. He wants the government — at the civil commitment
5
Carty argues that section 6600(a)(3) violates the Equal Protection
clause. To succeed in this argument, Carty must demonstrate that section
6600(a)(3) does not survive rational basis review. See, e.g., Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001). Relieving victims
from the onus of testifying in SVP Act civil commitment proceedings
about the trauma they suffered clears the rational basis hurdle. See Otto,
109 Cal. Rptr. 2d at 333. Thus, we conclude that Carty’s Equal Protection
argument fails.
CARTY v. NELSON 14221
proceedings under the SVP Act — to put on its case by bring-
ing in live witnesses instead of using documentary evidence
contained in the probation report so that he can cross-examine
the child victim witnesses. But instead of accepting a plea
bargain eight years earlier, Carty could have gone to trial and
confronted the child victim witnesses. His waiver of a trial
and his failure to challenge the content of the victims’ state-
ments in the probation report at the time of his sentencing
undercuts this argument in light of the reasoning in Otto. Fur-
thermore, the documentary evidence used by the superior
court during Carty’s initial civil commitment hearing in June
1999 possessed sufficient indicia of reliability to meet Cali-
fornia’s statutory hearsay exception. See Cal. Welf. & Inst.
Code § 6600.1 (“The details underlying the commission of an
offense that led to a prior conviction, including a predatory
relationship with the victim, may be shown by documentary
evidence, including, but not limited to, preliminary hearing
transcripts, trial transcripts, probation and sentencing reports,
and evaluations by the State Department of Mental Health.”);
Cf. E.B. v. Verniero, 119 F.3d 1077, 1108-09 (3rd Cir. 1997)
(“The prosecutor may base her case entirely on hearsay, if it
shows indicia of reliability.”). In fact, the superior court gave
Carty the opportunity to challenge the documentary evidence
contained in his probation report at his initial civil commit-
ment hearing in June 1999. Equally important, during Carty’s
June 1999 initial civil commitment hearing, the superior court
carefully evaluated a medical report and all of the victim
statements contained in the probation report, and concluded
that only two of the five acts committed by Carty against the
child victims involved conduct that constituted “substantial
sexual conduct.”
[9] Finally, even looking to the Supreme Court cases on
which Carty relies, he was not denied the necessary safe-
guards required by the Constitution. Particularly, at his initial
civil commitment hearing in June 1999, Carty was repre-
sented by counsel, was given an opportunity to challenge the
evidence used by the District Attorney, waived his right to a
14222 CARTY v. NELSON
trial by a jury, and was adjudged, beyond a reasonable doubt,
as an SVP who required civil commitment. See, e.g., Adding-
ton, 441 U.S. 432-33 (holding that “to meet due process
demands,” the standard of proof for civil commitment pro-
ceedings must be higher than the preponderance-of-the-
evidence standard); Humphrey v. Cady, 405 U.S. 504, 508-14
(1972) (concluding that an evidentiary hearing was warranted
when an individual was committed after his prison sentence
allegedly without a jury trial, without counsel, and without an
opportunity to challenge “the initial determination that his
crime was sexually motivated”); Baxstrom v. Herold, 383
U.S. 107, 111-12 (1966) (“For purposes of granting judicial
review before a jury of the question whether a person is men-
tally ill and in need of institutionalization, there is no conceiv-
able basis for distinguishing the commitment of a person who
is nearing the end of a penal term from all other civil commit-
ments.”).
[10] “Due process calls for an individual determination
before someone is locked away.” Demore v. Kim, 538 U.S.
510, 551 (2003). That is what happened here.
III. CONCLUSION6
[11] The California Court of Appeal’s conclusions that the
admission of documentary evidence during Carty’s June 1999
civil commitment hearing (1) did not render his civil commit-
ment proceedings under the SVP Act fundamentally unfair,
and (2) did not violate his substantive due process rights, was
not contrary to or an unreasonable application of clearly
established federal law, as determined by the Supreme Court.
Accordingly, we AFFIRM the district court’s order denying
Carty’s habeas petition.
6
The State’s August 9, 2004, request for judicial notice of certain state
court documents is granted.