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THE PEOPLE v. LAWRENCE MICHAEL LOWE

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


November 29, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
LAWRENCE MICHAEL LOWE, DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Simons, J.

P. v. Lowe CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Lawrence Michael Lowe (appellant) appeals an order committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)*fn1 He raises numerous claims of error.

BACKGROUND

In 1990, appellant was convicted of committing lewd and lascivious acts against his three-year-old daughter, E.. (Pen. Code, § 288, subd. (a).) The conduct involved his fondling and orally copulating E.'s vagina. In 1992, appellant pled guilty to 14 counts of committing lewd and lascivious acts against nine-year-old fraternal twins, Jessica and Justin, whom he babysat. The conduct involved taking sexually explicit photographs of Jessica, fondling and orally copulating Jessica and fondling Justin.

In 1998, while in prison, appellant was disciplined for misusing equipment at his job assignment. The misconduct involved using computer class equipment to combine photographs of the heads of young minors with photographs of the bodies of adult naked models.

Psychologist Mark Scherrer evaluated appellant and diagnosed him with pedophilia, which Scherrer defined as sexually deviant fantasies, urges or behaviors for at least six months directed at children under the age of 13. Scherrer stated that pedophilia is a chronic, life-long disorder. He opined that appellant's inability to explain his pedophilia suggests a "volitional impairment." Scherrer also opined that appellant is dangerous to others because he is likely to engage in sexually violent predatory behavior if released into the community. Scherrer explained he utilized the Static-99 test to assess appellant's risk of sexually reoffending. Appellant scored a 5 on the test, which placed him in the medium-high range of 10.2 to 23.1 percent risk of sexual reoffense within five years, and an 11.8 to 32.1 percent risk of sexual reoffense within 10 years. Scherrer noted that appellant had not completed a sex offender treatment program. Scherrer also employed the Static-2002 test, which indicated that appellant is in a moderate risk category for sexual reoffense. However, Scherrer did not attach as much significance to the Static-2002 results as to the Static-99 results because of the newness of the Static-2002 test. Noting that appellant had sexually reoffended while on probation for a sex offense, Scherrer opined that appellant could not presently be safely treated in the community.

Scherrer opined that most parolees are unable to pay for the kind of costly intensive sex offender therapy required. Scherrer stated that the Sharper Future program, which appellant had contacted, was a good community-based sex offense treatment program, but Scherrer was concerned that the $1,000 or $1,500 monthly cost of the program would be financially prohibitive for appellant. Scherrer also stated that the letter appellant received from Sharper Future, indicating that the cost of the program would be $40 per week, would only provide one individual session and one group session per week, which would be inadequate treatment for appellant.

Psychologist Robert Owen evaluated appellant and diagnosed him as currently suffering from pedophilia, particularly directed at girls. Owen also opined that appellant was currently unable to control his pedophilia. Based on appellant's history, Static-99 test score of 5, and Static-2002 score, Owen opined there is a significant and substantial risk of appellant's sexual reoffending if released into the community. Finally, he opined that appellant meets the criteria of an SVP.

Owen opined that because appellant had not taken advantage of any community treatment programs before, it was unlikely he would be motivated to voluntarily do so now. Owen said that the outpatient Sharper Future program is a good program, but the severity of appellant's pedophilia would require a much more comprehensive program than a $40 once weekly group therapy program.

Appellant admitted that he is a pedophile and needs to "get into treatment."

Psychologist Jay Adams testified as a defense expert on forensic psychology and risk assessment as it relates to SVP cases. In evaluating appellant, Adams opined that there was not enough evidence to clearly diagnose him with pedophilia. She did not think appellant suffers from a currently diagnosed mental disorder that predisposes him to the commission of future criminal acts. She stated it was significant that appellant did not start sexually offending until he was 33 years old. Adams also noted that appellant does not suffer from antisocial personality disorder or psychopathy. Adams gave appellant a score of 4 on the Static-99 test, placing him in the medium high category, but said the Static-99 test results are one of many factors regarding a defendant's risk of reoffense. Adams opined that appellant does not pose a serious and well-founded risk of reoffense. In reaching this opinion Adams found it significant that appellant is 54 years old. Adams also opined that appellant can be safely and effectively treated in the community based on his age, his interest in treatment and his intensive supervision on parole.

Psychologist Mary Jane Alumbaugh also testified as a defense expert on forensic psychology and SVP evaluations. Alumbaugh diagnosed appellant as currently suffering from pedophilia, but found he does not suffer from an antisocial personality disorder. Alumbaugh testified that appellant currently suffers from a "volitional impairment that's causing him to act out due to his pedophilia." She gave appellant a score of 4 on the Static-99 test, placing him in the medium-high range. However, she opined that appellant was not likely to commit an SVP offense if released to the community. This opinion was based on appellant's age, intense parole supervision, and her belief that he could be helped by therapy. She also opined that appellant could be safely treated in the community.

Anthony Garcia, previously incarcerated, testified he met appellant while they were both in prison and worked together in the prison chapel. Garcia described appellant as a "very good inmate," who was always helping others. Garcia said he would be willing to give appellant $120 or $125 a month if appellant were released.

Reverend Michael Bell met appellant while Bell was working as a prison chaplain. Bell said appellant participated in and became an instructor of an anger management program, was a mentor for the Quest program, and attended all of the Friday night programs led by Bell.

San Mateo County parole agent Kimberly Flores testified in rebuttal that a defendant with a record like appellant's would receive a three-year parole after which he would be released into society with no supervision. Flores explained that paroled sex offenders are mandated to attend a monthly group therapy meeting, and are provided one in-house group treatment session per month. She said 98 percent of high risk sex offenders receive only one group therapy session per month. Outside therapy is available only if the parolee is willing to pay for it.

DISCUSSION

I. Statutory Overview

"The SVPA provides for the involuntary civil commitment of a specified subset of criminal offenders, following completion of their prison terms, who are deemed SVP's. (§ 6600 et seq.) Section 6600, subdivision (a)(1) defines an SVP as 'a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.' " (People v. Calderon (2004) 124 Cal.App.4th 80, 87 (Calderon).) A " '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." (§ 6600, subd. (c).)

The screening is conducted in accord with an assessment protocol developed by the DMH. (People v. Hurtado (2002) 28 Cal.4th 1179, 1183.) If the screening leads to a determination that the person is likely to be an SVP, he or she is referred to the DMH for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b), (c), & (d).) If both evaluators agree the person "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the Department must forward a request for a commitment petition to the county where the offender was convicted. (§ 6601, subds. (d) & (i).) If the county's legal counsel agrees with the recommendation, he or she files a commitment petition in the superior court. (§ 6601, subd. (i).)

The trial court then holds a hearing on the petition to determine whether there is probable cause to believe that if the person is released from custody, he or she "is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) If the court finds probable cause, it orders a trial to determine whether the person is an SVP. (§ 6602, subd. (a).) The person is entitled to a jury trial, the assistance of counsel, the right to retain experts, and access to relevant medical and psychological records and reports. (§ 6603, subd. (a).) Commitment requires a unanimous verdict and proof beyond a reasonable doubt. (§§ 6603, subd. (f), 6604.) If the jury determines the person is an SVP, he or she is committed to the DMH for an indeterminate term for appropriate treatment and confinement in a secure facility. (§ 6604.)

II. The CALCRIM No. 3454 Instruction Given Was Not Inadequate

Appellant contends the court erroneously failed to instruct the jury, sua sponte, that it should consider whether his amenability to treatment raised a reasonable doubt as to whether he was likely to reoffend.

Pursuant to CALCRIM No. 3454, the court instructed the jury: "The petition alleges that [appellant] is [an SVP]. To prove this allegation, the People must prove beyond a reasonable doubt that, one, [appellant] has been convicted of committing a sexually violent offense against one or more victims. [¶] Two, he has a current diagnosed mental disorder. Three, as a result of that diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior. And, four, it is necessary to keep him in custody in a secure facility to ensure the health and safety of others."

The trial court in an SVP proceeding must instruct on the general principles of law that are necessary to the jury's understanding of the case. (People v. Roberge (2003) 29 Cal.4th 979, 988 (Roberge).) Instructional errors are reviewed under the harmless beyond a reasonable doubt standard. (People v. Hurtado, supra, 28 Cal.4th at p. 1194.)

"In determining whether it is 'likely' that the person will reoffend, the question is whether the individual presents a 'serious and well-founded risk' of committing sexually violent criminal acts that will be of a predatory nature if the person is set free in the community. [Citations.]" (People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 194 (George); see also see also Roberge, supra, 29 Cal.4th at pp. 985-988.) "Evidence of the person's amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody." (Roberge, at p. 988, fn. 2.) Stated differently, "[E]vidence of a person's amenability to voluntary treatment" may reflect a reduced risk of reoffense because it suggests the person has "more motivation, ability and opportunity to function lawfully if free in the community despite his mental impairment." (Calderon, supra, 124 Cal.App.4th at p. 89.) Evidence of amenability to voluntary treatment involves evidence of the "alternative of treatment in non-secure settings." (Id. at p. 93.)

In People v. Grassini (2003) 113 Cal.App.4th 765, 777, fn. omitted (Grassini), the court ruled that "the presence of [evidence of amenability to voluntary treatment] creates a sua sponte duty in the trial court to instruct the jury that it is to determine whether custody in a secure facility is necessary to ensure that the individual is not a danger to the health and safety of others." Following Grassini, CALCRIM No. 3454 was amended to include a fourth element that must be proved to establish SVP status if there is evidence of the person's amenability to voluntary treatment, that it is necessary to keep the person " 'in custody in a secure facility' " to ensure the health and safety of the public. (George, supra, 164 Cal.App.4th at pp. 194-195.)

Here, the court did instruct the jury with this fourth element regarding the necessity of custody in a secure facility. Appellant argues that the CALCRIM No. 3454 instruction given "mechanically adopts" Grassini, but "entirely fails to focus the jury's attention on the factor that triggers the need for further instruction." We conclude the instruction tracks Grassini, and sufficiently apprised 2, that "[e]vidence of the person's amenability to voluntary treatment, . . . is relevant to the ultimate determination of whether the person is likely to engage in sexually violent predatory crimes if released from custody." Had appellant wished to amplify the instructions given with a specific instruction expressly stating that evidence of a person's amenability to voluntary treatment may reflect a reduced risk of reoffense, he could have requested such an amplifying instruction. Appellant not only failed to request such an amplifying instruction, he acceded to the instructions given. No instructional error is shown.

III. The CALCRIM No. 3454 Instruction Did Not Improperly Direct the Jury to Consider the Consequences of its Verdict

Appellant next contends that by instructing the jury that it must determine whether it is necessary to keep him in custody in a secure facility to ensure the health and safety of others, the court improperly directed the jury to consider the consequences of its verdict, diminishing the People's burden of proof.

Appellant relies on People v. Rains (1999) 75 Cal.App.4th 1165 (Rains) in support of his claim. In Rains, the prosecutor's experts were permitted to testify that, if the jury found the defendant to be an SVP, he would be committed to a hospital for a two-year period, where he would undergo treatment. On appeal, the court concluded that the consequences of a true finding on the issue of whether a defendant in an SVPA case is an SVP were not relevant to the issues in dispute, but found the error harmless. (Id. at p. 1170.)

Respondent contends that Rains is inapposite because appellant raised the issue of his willingness to seek voluntary treatment and argued that his confinement in a secure facility was not necessary to protect the public. Respondent also argues that the CALCRIM No. 3454 instruction given did not address the actual disposition which would result if the jury found the SVPA petition true. We agree. The instruction given merely told the jury to consider whether custody in a secure facility was necessary to protect the health and safety of others. No instructional error is shown.

IV. The CALCRIM No. 3454 Instruction Does Not Violate Due Process

Pursuant to CALCRIM No. 3454, the court instructed the jury in part: "A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well-founded risk that the person will engage in such conduct if released into the community." Appellant argues, "By directing the jury that it may make a finding of 'likely' based not on probability but rather on the quality of the possible harm and the quality of the evidence, CALCRIM No. 3454 diminishes the burden of proof and denies due process of law."

Appellant acknowledges that, in Roberge, supra, 29 Cal.4th at page 988, the Supreme Court construed the term " 'likely' " in the SVPA to mean "a substantial danger, that is, a serious and well-founded risk," and acknowledges that we are bound by that interpretation (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity)). However, appellant claims that "[a]ccepting that this is what the Legislature intended the statute to mean, . . . the statute and [CALCRIM No. 3454] based upon it are unconstitutional." (Fn. omitted.) He argues that the SVPA "does not require a showing of a probability of harm. . . . All that is required is a risk of harm based on evidence. As such, the California SVP law is not of a kind that affords due process of law."

In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 915-925 (Ghilotti), the Supreme Court considered the word " 'likely' " as used in section 6601, subdivision (d),*fn2 a provision pertaining to an earlier step in the involuntary commitment process than that involved in this case. Ghilotti rejected a due process challenge asserting that a valid involuntary commitment law requires proof that the person is " 'highly likely' " or "more likely than not to reoffend." (Id. at p. 923.) The Ghilotti court stated: "We therefore conclude that the phrase 'likely to engage in acts of sexual violence' . . . , 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.) Ghilotti also stated, "We are not persuaded, however, that a valid involuntary commitment law requires proof that the person is more likely than not to reoffend. As we pointed out in Hubbart [v. Superior Court (1999)] 19 Cal.4th 1138, [1161] '[w]hile due process precludes the involuntary commitment of mentally impaired persons who are not in any sense "dangerous" [citation], the United States Supreme Court has never directly defined the term.' [Citation.] Indeed, we indicated, '[c]ivil commitment statutes have long been upheld where dangerousness is expressed in terms of a "probability," "threat," or similar risk that a person who is presently mentally disturbed will inflict harm upon himself or others in the future if not confined. [Citations.]' [Hubbart, supra, 19 Cal.4th at p. 1163.] [Citation.]" (Ghilotti, at pp. 923-924.)

In Cooley v. Superior Court (2002) 29 Cal.4th 228, 256 (Cooley), the Supreme Court relied on Ghilotti in construing the word "likely" to mean that a potential SVP poses a "serious and well-founded risk" of reoffending in the context of the probable cause finding pursuant to section 6602, subdivision (a). (In re Lemanuel C. (2007) 41 Cal.4th 33, 44.)

In Roberge, supra, 29 Cal.4th at page 988, the Supreme Court analyzed the word "likely" in the context of section 6600, subdivision (a)(1), which sets forth as a condition for an SVP determination that a person "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." It relied on both Ghilotti and Cooley, and construed " 'likely' " in this context to mean "a substantial danger, that is, a serious and well-founded risk," of reoffending. (Roberge, supra, 29 Cal.4th at p. 988, & fn. 2; In re Lemanuel C., supra, 41 Cal.4th at p. 44.) Since the language of CALCRIM No. 3454 follows the language of the SVPA upheld by the Supreme Court numerous times, no instructional error is demonstrated. If appellant's claim is that Roberge was wrongly decided, principles of stare decisis require us to reject the claim. (Auto Equity, supra, 57 Cal.2d at p. 455.)

In addition, the Supreme Court has reiterated that "in a trial to determine whether a person is an SVP, the proof of that status must be beyond a reasonable doubt." (Ghilotti, supra, 27 Cal.4th at pp. 924-925; accord, Roberge, supra, 29 Cal.4th at p. 982.) Thus, we reject appellant's claim that either CALCRIM No. 3454 or the SVPA lessen the burden of proof.

Appellant further argues that the terms "risk," "substantial," "serious," and "well-founded" in CALCRIM No. 3454 are not further defined for the jury and do not place a quantitative limitation on the risk of harm. He asserts that the jury "is effectively instructed that if it is a serious crime that is risked and this risk has a foundation in fact, if it is a real risk, then the element of 'likely' is satisfied." Because these terms have been upheld by the Supreme Court, no error is shown. Had appellant thought it necessary to amplify the CALCRIM No. 3454 instruction with definitions of these terms, he could have requested such an amplifying instruction. His failure to do so waives the claim on appeal.

V. The SVPA Does Not Violate Due Process

Next, appellant contends the SVPA violates due process because its requirement that the subject of the petition be "likely" to engage in acts of sexual violence does not require a greater than [50] percent chance of harm; thus it is not narrowly tailored to a compelling state interest. He argues that for purposes of the final commitment decision, the word " 'likely' " should mean " 'more probable than not.' " As we noted previously, the Supreme Court has repeatedly concluded that its interpretation of "likely" under the SVPA satisfies federal due process concerns. This claim of error is yet another futile attempt to question the Supreme Court's holdings which, by principles of stare decisis, bind us.

VI. The SVPA Is Not Void for Vagueness

Appellant next argues that the SVPA is void for vagueness because it "fails to set minimum standards" as to the term "likely" to reoffend. Once again, we reject the claim. The term "likely" has been approved in statutes which are substantially similar to the SVPA, such as the Kansas sex offender statute reviewed in Kansas v. Hendricks (1997) 521 U.S. 346. In Hubbart, supra, 19 Cal.4th at page 1163, our Supreme Court stated: "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." Since the likelihood standard under the SVPA is not materially different from the statute at issue in Kansas v. Hendricks, supra, 521 U.S. 346, we reject appellant's void for vagueness claim.

VII. Substantial Evidence Supports the Finding That Appellant Is Likely to Sexually Reoffend

Next, appellant contends the evidence was insufficient to establish that he was likely to reoffend if released from custody. We evaluate the entire record in the light most favorable to the judgment and determine if it is supported by substantial evidence. (People v. Mercer (1999) 70 Cal.App.4th 463, 466 (Mercer).) We do not reevaluate the credibility of the witnesses, nor do we reweigh the strengths of their expert opinions; we must draw all reasonable inferences, and resolve all conflicts in the evidence, in favor of the judgment. (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.) While the evidence must be " ' "reasonable in nature, credible and of solid value" ' " (Mercer, at p. 466), we reverse only if no rational trier of fact could have found the essential elements beyond a reasonable doubt (People v. Rowland (1992) 4 Cal.4th 238, 269).

Appellant notes that both Scherrer and Owen found that appellant's test result on the Static-99 test had a risk of reoffense that was not greater than 32.1 percent over the next 10 years. He argues that as a matter of statutory construction and federal due process, this level of risk was insufficient to support a finding that he was likely to reoffend and therefore insufficient to support the jury's verdict. Appellant concedes that the SVPA does not require that the probability of reoffense be greater than 50 percent, but argues that a risk of reoffense of 32.1 percent within 10 years is "below any reasonabl[e] interpretation of the statute. A one-in-three chance is not 'likely.' " Appellant's claim lacks merit.

As recognized by Ghilotti, supra, 27 Cal.4th at page 924, "the state has a compelling protective interest in the confinement and treatment of persons who have already been convicted of violent sex offenses, and who, as the result of current mental disorders that make it difficult or impossible to control their violent sexual impulses, represent a substantial danger of committing similar new crimes [citations], even if that risk cannot be assessed at greater than 50 percent."

The determination of appellant's risk of sexual reoffense was not based solely on his Static-99 score. Three of the four mental health evaluators diagnosed appellant as suffering from pedophilia and appellant himself agreed with that diagnosis. Evidence was presented that pedophilia is a chronic, life-long disorder. Scherrer explained that his opinion regarding appellant's risk of reoffense was based on his clinical opinion together with two risk assessment instruments and other empirical factors. Scherrer employed both the Static-99 and Static-2002 tests. He also based his opinion about the moderately high likelihood of appellant's sexual reoffense on appellant's failure to satisfactorily complete a sex offender treatment program, appellant's sexual reoffense while on community supervision, appellant's difficulty establishing appropriate adult intimate relationships, and his discipline problems in prison. Similarly, Owen based his opinion of appellant's risk of sexual reoffense not only on appellant's Static-99 score, but also on appellant's pedophilia and sexual reoffense while on probation.

Appellant also argues that the prosecution's experts "artificially inflate[d]" his risk of sexual reoffense "by looking indefinitely into the future." Again, we disagree. The SVPA "clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment. The statutory criteria are expressed in the present tense, indicating that each must exist at the time the verdict is rendered. In addition, a person cannot be adjudged an SVP unless he 'currently' suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior, and which 'makes' him dangerous and 'likely' to reoffend. (§ 6600, subd. (a).) [¶] By defining the qualifying mental disorder in this fashion, the statute makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined." (Hubbart, supra, 19 Cal.4th at p. 1162.) The experts made clear that their opinions regarding appellant's likelihood of reoffending were based on his history and current diagnosis. Substantial evidence supports the finding that he is likely to sexually reoffend if released from custody.

VIII. Substantial Evidence Was Presented That Appellant Has Serious Difficulty Controlling His Behavior

As we noted previously, under section 6600, subdivision (c), a determination of SVP status depends on whether the person " ' currently' suffers from a 'diagnosed mental disorder' " which prevents him from controlling his sexually violent behavior and makes him dangerous and likely to reoffend. (Hubbart, supra, 19 Cal.4th at p. 1162; Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1058.) Appellant next argues that, although there was evidence of his pedophilia, the evidence was insufficient to support a finding that he has a serious difficulty controlling his behavior.

In particular, appellant argues there was no evidence of his current symptoms and no recent objective evidence that he has a current serious difficulty in refraining from sexually violent predatory behavior. He also argues that the out-of-court statements relied on by the expert witnesses were not admitted for their truth and represented only interpretations of assumed facts. Therefore, the experts' opinions were insufficient to support a finding of a current mental disorder.

California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (Evid. Code, § 801). Pursuant to Evidence Code section 801, subdivision (a), expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." Evidence Code section 801, subdivision (b) limits expert opinion testimony to an opinion "[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates . . . ." Any material that forms the basis of the expert's opinion must be reliable. (People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley).) So long as this threshold reliability requirement is satisfied, even matters ordinarily inadmissible, such as hearsay, may form the proper basis for an expert's opinion testimony. (Id. at p. 618.) A trial court has discretion " 'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' " (Id. at p.619.)

Experts Scherrer, Owen, and Alumbaugh based their opinions that appellant's current pedophilia caused his volitional impairment on police and parole officers' reports, a DMH SVP screening form, prison records, and their own interviews and evaluations of appellant. These are the types of materials mental health professionals and experts typically rely on in forming their opinions in SVP cases. The opinion testimony of these three experts constitutes substantial evidence that appellant suffers from a diagnosed mental disorder which prevents him from controlling sexually violent behavior.

IX. No Instruction On Volitional Control Was Necessary

Next, appellant contends the court erred in failing to instruct the jury sua sponte that it had to find he had serious difficulty controlling his behavior.

Pursuant to CALCRIM No. 3454, the court instructed the jury in part: "The term diagnosed mental disorder includes congenital or acquired conditions affecting a person's emotional or volitional capacity and predisposing that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others. You must unanimously agree that [appellant] has a 'diagnosed mental disorder.' You are not required to unanimously agree as to which 'congenital or acquired condition' is applicable. . . . [¶] . . . You may not conclude that [appellant] is [an SVP] based solely on his alleged prior convictions without additional evidence that he currently has such a diagnosed mental disorder." (Boldface omitted.)

This issue was resolved against appellant in People v. Williams (2003) 31 Cal.4th 757 (Williams).*fn3 In that case, the jury was not separately and specifically instructed on the need to find serious difficulty in controlling behavior, and the defendant argued a separate " 'control' " instruction was constitutionally required under Kansas v. Crane (2002) 534 U.S. 407. (Williams, at p. 759.) Williams concluded that the SVPA "inherently embraces and conveys the need for a dangerous mental condition characterized by impairment of behavioral control," and "states no category of committable disorder which does not expressly require a dangerous effect on emotional or volitional capacity." (Id. at p. 774.) Thus, it concluded, "a jury instructed in the language of [the SVPA] must necessarily understand the need for serious difficulty in controlling behavior," and no "further lack-of-control instructions or findings are necessary to support a commitment under the SVPA." (Williams, supra, 31 Cal.4th at pp. 774-775, fns. omitted.) Here, the jury was instructed with CALCRIM No. 3454, which tracks the statutory language which Williams concluded was sufficient. We are bound by Williams (Auto Equity, supra, 57 Cal.2d at p. 455), and therefore reject appellant's claim of instructional error.*fn4

X. The Court's Response to the Juror's Question Was Not Erroneous

Next, appellant contends the court erroneously instructed the jury in response to a juror's question regarding the consequences of the jury's verdict.

During defense counsel's direct examination of Alumbaugh, the jury asked, "if [appellant] is found to be [an SVP], what occurs next?" The court responded: "I will instruct you on the law. After we conclude the evidence and we have already gone over the jury instructions yesterday on our spare time, one of those instructions will be that you as the jury cannot consider the consequences of your finding. [¶] And the matter of disposition is for the court to determine in accordance with the law of the state of California. That's going to be the extent of that answer."

Appellant argues the court's response "improperly told the jurors that the judge had discretion to exercise regarding what would happen next," and thereby "diminished the juror's sense of responsibility for their verdict and divert[ed] them from the burden of proof," in violation of the Fourteenth Amendment. He cites section 6604 of the SVPA which provides in part, "If the court or jury determines that the person is [an SVP], the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health." Thus, appellant argues the instruction was erroneous because the court had no discretion to exercise. We disagree.

The court's response did not use the word "discretion" and it cannot be reasonably construed as informing the jury that the court would exercise its discretion as to the consequences of appellant being found an SVP. Instead, it properly informed the jury that it was not to consider the consequences of its SVP finding and that the matter of what would happen next to appellant was a court matter, not a matter for the jury.

XI. The Prosecutor Did Not Commit Misconduct

Appellant next argues that the prosecution's repeated use of the term " 'sexually violent predator' " during trial was inherently prejudicial, depriving him of due process. Appellant concedes he did not raise this issue below, but argues that this court should consider it in any case. Alternatively, he argues defense counsel was ineffective in failing to raise the issue below. He argues, "Because the Legislature has written the term into the law, it is one that is embedded in the instructions, embedded in the testimony of the witnesses, and intoned repeatedly as a bell that rings incessantly from the first moment of trial to the last. It is uttered repeatedly from the start of voir dire to the concluding recitation of the law. It is the subject of the opening statements and closing arguments of counsel. And yet it is unnecessary." He continues, "Even in a trial that necessarily involves facts of sex and of violence, there is no justification for linking these concepts in a slogan, an epithet, 'sexually violent predator.' The justification is even less, when, as in the instant case, the crimes involved an abuse of trust, not force or violence." He concedes that the Legislature drafted the relevant statute, which defines the term "sexually violent predator." Nonetheless, he argues that because the evidence of his current serious difficulty in controlling his sexually violent behavior and the likelihood of his reoffense was minimal, the repeated use of the term "sexually violent predator" was inflammatory and prejudicial.

The Legislature drafted the statutory scheme at issue here (§ 6600 et seq.) and chose the designation "sexually violent predator." That term is expressly defined in section 6600 and the term "sexually violent predator" is used throughout the statutory scheme and the jury instructions which track it. Both counsel necessarily utilized the term "sexually violent predator" throughout trial. Quite simply, appellant's concern regarding the inflammatory nature of the term is best directed to the Legislature. No error is shown.

XI. Due Process, Ex Post Facto, and Double Jeopardy

Appellant next contends the 2006 amendment to the SVPA, which provides for commitment to an indeterminate term, is punitive, and violates the due process, ex post facto, and double jeopardy clauses of the United States Constitution.

Recently, in People v. McKee (2010) 47 Cal.4th 1172 (McKee), the Supreme Court held that the SVPA is non-punitive and rejected due process and ex post facto challenges after concluding a person is committed only for as long as he or she meets the SVP criteria of abnormality and dangerousness. (Id. at pp. 1188-1195.) This court is bound by that holding. (Auto Equity, supra, 57 Cal.2d at p. 455.)

After McKee, it is well settled that an indeterminate SVP commitment is civil in nature, and not punitive. (See McKee, supra, 47 Cal.4th at pp. 1193-1195.) A civil commitment procedure does not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas v. Hendricks, supra, 521 U.S. at p. 369.) Thus, appellant's civil commitment does not violate the double jeopardy clause. (See People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)

XII. Equal Protection

Appellant contends he was denied equal protection because SVP's receive treatment disparate from other similarly situated persons, specifically mentally disordered offenders under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.), and those civilly committed because they were found not guilty by reason of insanity (Pen. Code, § 1026 et seq.).

In considering a similar equal protection challenge, McKee concluded, "the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment." (McKee, supra, 47 Cal.4th at p. 1184.) Accordingly, the Supreme Court remanded the case to the trial court to permit the state the opportunity to demonstrate that its disparate treatment of SVP's is constitutional. (Id. at pp. 1184, 1208-1210.) We will follow the same remand procedure here.*fn5

DISPOSITION

The case is remanded to the trial court for reconsideration of appellant's equal protection claim in light of McKee. The trial court, however, shall suspend further proceedings pending finality of the proceedings on remand in McKee. (McKee, supra, 47 Cal.4th at pp. 1208-1210.) "Finality of the proceedings" in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. The judgment is otherwise affirmed.

We concur. JONES, P.J. NEEDHAM, J.


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