Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed. (Super. Ct. No. M-9001).
The opinion of the court was delivered by: Rylaarsdam, J.
CERTIFIED FOR PUBLICATION
In 2000, the Orange County District Attorney filed a petition seeking to have defendant Steven Daniel Force, then a state prison inmate, committed to the State Department of Mental Health (department) under the Sexually Violent Predator Act. (Welf. & Inst. Code, § 6600 et seq.; all further statutory references are to this code unless otherwise indicated; Act.) As a result of numerous continuances, a hearing on the petition did not begin until April 2007. The jury returned a finding that defendant is a sexually violent predator (SVP) as defined in the Act, and the trial court committed him for an indeterminate period pursuant to the amendments to the Act made by Proposition 83, known as The Sexual Predator Punishment and Control Act: Jessica's Law, a voter initiative enacted on November 7, 2006 (Proposition 83).
Defendant contends use of the Act, as amended, resulted in the violation of his state and federal constitutional rights concerning due process, ex post facto laws, and double jeopardy, and violated the principle against retroactive application of laws. He further argues the trial court erred by excluding evidence that would have allowed him to contest his 1985 sexual assault conviction, by amending the burden of proof instruction to eliminate the presumption that he was not a sexually violent predator, and by refusing to disclose juror information to support his motion for a new trial based on juror misconduct. Since all of his claims lack merit, we affirm the judgment.
Defendant, 48 at the time of the hearing, testified he began masturbating in front of young girls when he was 11 years old. He also admitted to numerous incidents where he exposed himself to young girls and women and to masturbating with children nearby. After his last release from custody, defendant made audiotapes discussing child molestation and masturbating with the sound of children playing in the background.
Defendant's first molestation occurred in 1976, while he was still a minor. He grabbed a young girl, forced his penis between her legs, and masturbated while trying to reach into her pants. Defendant admitted molesting three other minors. After a second incident in 1980, where he attempted to have a minor orally copulate him, defendant pleaded guilty to a criminal charge and was hospitalized as a mentally disordered sex offender. The third and fourth admitted molestations involved his wife's cousins who occasionally stayed with them overnight.
In 1985, defendant also pleaded guilty to charges that resulted from his forcing a young girl to orally copulate him. At the SVP hearing, defendant denied committing this offense, claiming he only entered the guilty plea to avoid a potentially longer prison sentence. However, defendant acknowledged he twice admitted the 1985 conviction in 1989 when he entered guilty pleas to a felony indecent exposure charge and the molestations of his wife's cousins.
Defendant admitted not participating in the sex offender program after his return to prison. He claimed a prior attorney advised against doing so, and he objected to the program's requirement that he admit to all of his prior criminal activity, including the 1985 offense. However, defendant did participate in an unofficial program operated by an Episcopal priest.
The prosecution introduced the testimony of two licensed psychologists, Dawn Starr and Gary Zinik, each of whom evaluated defendant several times between 2000 and 2007. Both opined defendant has a diagnosed mental disorder. Starr testified defendant "qualifies for three diagnoses," exhibitionism, voyeurism, and pedophilia with a sexual attraction to pubescent females. Zinik opined defendant "meets the diagnostic criteria for [a] pedophile. . . . [H]e has [an] enduring imprinted sexual interest in young girls."
Starr and Zinik also concluded there was a high risk defendant would engage in sexually violent predatory offenses if released into the community. In part, each witness cited defendant's high score on the Static 99, an actuarial tool that focuses on proven risk factors for reoffending. Zinik also cited defendant's "whole history," including his early onset of committing sex offenses, his aggressiveness in committing them, his attacks on strangers, plus the fact defendant repeatedly committed sex offenses even after being caught and receiving either treatment or punishment.
Defendant presented testimony from two psychologists, the priest who conducted his unofficial prison program, a half-sibling, and an employee from Atascadero State Hospital. Only one of the psychologists evaluated defendant. He concluded defendant was neither a pedophile nor likely to reoffend if released into the community. The other psychologist generally criticized the diagnostic techniques employed by the prosecution's expert witnesses. The priest described defendant as an active and sincere participant in the program. The Atascadero employee testified that, while at that institution, defendant acted "normal" and "did what he was supposed to do." Defendant's half-sister, who is unmarried and has no minor children, offered to allow him to live with her in Alaska if he was released from custody.
"The [Act] . . . permits the involuntary civil commitment . . . of persons who are found . . . beyond a reasonable doubt [citation] to be 'sexually violent predator[s]' [citation]." (People v. Williams (2003) 31 Cal.4th 757, 764; see also Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) A "'commitment proceeding'" under the Act has been defined as "'a special proceeding of a civil nature . . . .'" (People v. Yartz (2005) 37 Cal.4th 529, 536-537.)
Before its 2006 amendments, the Act defined an SVP as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Former § 6600, subd. (a).) Although the 2006 amendments changed the definition to one "convicted of a sexually violent offense against one or more victims" (§ 6600, subd. (a)(1), italics added), the trial court instructed the jury using the former definition.
Before the 2006 amendments, the Act limited a commitment to two years. (Former § 6604.) The state could repeatedly renew the commitment for additional two-year periods by filing a new petition and presenting proof beyond a reasonable doubt the person remained an SVP. (Ibid.) However, the Act also "provide[d] two ways a defendant [could] obtain review of his or her current mental condition to determine if civil confinement is still necessary. Section 6608 permit[ted] a defendant to petition for conditional release to a community treatment program," and "section 6605 . . . call[ed] for an annual review of a defendant's mental status that [might] lead to unconditional release." (People v. Cheek (2001) 25 Cal.4th 894, 898, fn. omitted.)
Both before and after the 2006 amendments, section 6605 required the department to conduct an annual "examination of [an SVP's] mental condition," and allow the committed person to "retain, or if he or she is indigent," to request "the court [to] appoint, a qualified expert or professional person to examine him or her" with "access to all records concerning the person." (§ 6605, subd. (a).) However, the 2006 amendments require the department to annually prepare and file in court a report "in the form of a declaration[,] . . . prepared by a professionally qualified person," to "include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Ibid.)
Formerly, section 6605 required the department to "provide the committed person with an annual written notice of his or her right to petition the court for conditional release under Section 6608" and, if the committed person "[did] not affirmatively waive his or her right to [so] petition," obligated "the court [to] set a show cause hearing to determine whether facts exist that warrant a hearing on whether the person's condition has so changed that he or she would not be a danger to the health and safety of others if discharged." (Former § 6605, subd. (b).) In the event the court found probable cause of a change, it was obligated to set a hearing where the committed person would be "entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding," including imposition of "[t]he burden of proof . . . on the state to prove beyond a reasonable doubt that [his or her] diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (Former § 6605, subds. (c) & (d).)
As amended, section 6605 also declares, "If the Department . . . determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a sexually violent predator, or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge. . . . The court, upon receipt of the petition[,] . . . shall order a show cause hearing," and if it "determines that probable cause exists to believe that the committed person's diagnosed mental disorder has so changed," it must set a hearing carrying all of the procedural protections described above. (§ 6605, subds. (b), (c), & (d).)
Section 6608 remains largely unchanged by the 2006 amendments. It recognizes the right of a "person who has been committed as a sexually violent predator [to] petition the court for conditional release or an unconditional discharge without the recommendation or concurrence of the Director of Mental Health" (§ 6608, subd. (a)), although a hearing on the petition cannot be held until the committed person has been confined for at least one year (§ 6608, subd. (c)).
If the court does not find the petition to be frivolous (§ 6608, subd. (a)), it "shall hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community." In the event "the court . . . determines [he or she] would not be a danger . . . while under supervision and treatment in the community," it "shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (§ 6608, subd. (d).) Even where "the court rules against the committed person at [a] trial for unconditional release from commitment, [it] may place the committed person on outpatient status . . . ." (§ 6608, subd. (g).) If the court places the committed person in a conditional release program, "[a]t the end of one year, [it] shall hold a hearing to determine if the person should be unconditionally released from commitment . . . ." (§ 6608, subd. (d).) Section 6608 further provides that "[i]n any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence." (§ 6608, subd. (i).)
Defendant contends the 2006 amendments replacing the two-year limit on confinement with an indeterminate term plus the shifting of the burdens of proof to him under sections 6605 and 6608 violate his right to due process of law, arguing "a person, once committed, can be held for the rest of his life without any requirement that the state prove that he remains mentally ill and dangerous." We disagree.
"[F]reedom from physical restraint 'has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,' [citation] . . . ." (Kansas v. Hendricks (1997) 521 U.S. 346, 356 [117 S.Ct. 2072, 138 L.Ed.2d 501].) But, as defendant acknowledges, both the United States Supreme Court and the California Supreme Court have recognized "that, consistent with 'substantive' due process requirements, the state may involuntarily commit persons who, as the result of mental impairment, are unable to care for themselves or are dangerous to others," because "[u]nder these circumstances, the state's interest in providing treatment and protecting the public prevails over the individual's interest in being free from compulsory confinement. [Citations.]" (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1151; see also Kansas v. Hendricks, supra, 521 U.S. at p. 358 ["We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality'" because the "added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control"].)
As for the potential length of defendant's commitment, neither Hubbart, which upheld the constitutionality of the original Act, nor Hendricks, which rejected a federal due process challenge to a similar Kansas statutory procedure, relied on the length of a sexually violent predator's commitment as the basis for declaring these laws satisfy substantive due process. In fact, the Kansas law called for commitment of a person found to be a sexually violent predator "until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." (Kan. Stat. Ann. § 59-29a07(a).) Section 2 of Proposition 83, which set forth the ballot initiative's findings and declarations of intent, recognized "California [was] the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments." (Historical and Statutory Notes, 47C West's Ann. Pen. Code, (2008 ed.) foll. § 209, p. 53; Prop. 83, § 2, subd. (k).)
Also, contrary to defendant's suggestion, an indeterminate term will not result in a committed person lingering in confinement for a lifetime. Under the amended statute, the department is not only charged with annually reviewing a committed person's condition, but it must also have a qualified professional prepare a report, in the form of a declaration, and file it with the court that issued the commitment order. (§ 6605, subd. (a).) This report must consider whether the committed person "currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or an unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Ibid.) If the department determines either of the foregoing conditions exists, it must authorize the committed person to file a petition for conditional or unconditional release (§ 6605, subd. (b)), and when the department "has reason to believe that a person committed to it . . . is no longer a sexually violent predator, it shall seek judicial review of the person's commitment pursuant to the procedures set forth in Section 7250 in the superior court from which the commitment was made." (§ 6605, subd. (f).)
Defendant argues the amended Act violates his right to substantive due process because it imposes on a committed person the burden of proof at the initial probable cause hearing under section 6605 and at all of the hearings authorized by section 6608. But his narrow focus on the Act's evidentiary burdens ignores the ameliorating aspects just discussed, including the requirement the department conduct an annual review of a committed person and file and serve a report signed under penalty of perjury by a qualified individual. (§ 6605, subd. (a).) In addition, if the department determines there has been a sufficient change in the person's condition, it must authorize him to petition for conditional release or unconditional discharge. (§ 6605, subd. (b).)
Defendant claims the amended Act imposes on him the burden of establishing probable cause to obtain a full hearing on the petition. Even if true, he concedes the burden so imposed is a rather low one; "a determination of probable cause by a superior court judge under the [Act] entails a decision whether a reasonable person could entertain a strong suspicion that the offender is a[ sexually violent predator]." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 252.) Since the department's annual report must be in the form of a declaration signed under penalty of perjury by one qualified to make findings on a committed person's current mental condition and potential dangerousness, in practically all cases the report alone would probably be sufficient to satisfy a finding in the committed person's favor.
Under section 6608, when the department finds a committed person continues to meet the definition of a sexually violent predator or recommends against granting the person conditional release to a less restrictive placement, the committed person may still petition for release but bears the burden of establishing his or her right to relief by a preponderance of the evidence. (§ 6608, subd. (i).) Case law supports a conclusion ...