APPEAL from a judgment of the Superior Court of Sacramento County, Patricia C. Esgro, Judge. (Super. Ct. No. 01F02348)
The opinion of the court was delivered by: Mauro , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Richard Kisling appeals from a judgment committing him to the Department of Mental Health (DMH) for an indefinite term following a jury finding that he was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (Act; Welf. & Inst. Code, § 6600 et seq.).*fn2 Kisling contends the trial court failed to properly instruct the jury about a 1998 jury finding that he was not an SVP, and also failed to adequately inquire about potential juror misconduct. In addition, Kisling challenges the Act, asserting violations of due process, the ex post facto clause, cruel and unusual punishment, double jeopardy and equal protection. He further contends that Proposition 83, which amended the Act in 2006, violated the single-subject rule for ballot initiatives.
We reject all of Kisling's contentions except one. In People v. McKee (2010) 47 Cal.4th 1172 (McKee), the California Supreme Court determined that the Act, as amended in 2006, may violate equal protection because SVP's are treated less favorably than mentally disordered offenders (MDO's) and those who have been adjudged not guilty of a crime by reason of insanity (NGI's). The California Supreme Court remanded that case to give the People an opportunity to justify the differential treatment of SVP's. In accordance with McKee, we reverse the judgment and remand this case for further proceedings on Kisling's equal protection claim. On remand, we direct the trial court to suspend further proceedings in this case pending finality of the proceedings in McKee.
On February 9, 2007, the People filed a petition to commit Kisling as an SVP pursuant to sections 6600 et seq. Following a probable cause hearing, Kisling was tried by a jury to determine whether he should be civilly committed as an SVP.
The People presented the expert testimony of two psychologists, Dr. Douglas Korpi and Dr. John Hupka. Korpi and Hupka testified about Kisling's history, including incidents that occurred after 1998 upon which they concluded that Kisling was an SVP as of the time of the 2009 trial. Korpi and Hupka diagnosed Kisling with antisocial personality disorder and the sexual disorder of paraphilia not otherwise specified. According to Korpi, paraphilia and antisocial personality disorder predisposed Kisling to commit a sexually violent offense because Kisling lacked the ability to empathize with his victims and to control his behavior. Hupka likewise testified that Kisling could not control acting out his sexual deviance. Korpi and Hupka opined that Kisling presented a serious and well-founded risk of reoffending in a sexually violent manner.
Kisling presented the expert testimony of Dr. John Podboy, a clinical and forensic psychologist. Podboy opined that Kisling did not have paraphilia. Podboy diagnosed Kisling with antisocial personality disorder, but opined that such condition was "in remission." Podboy opined that the risk that Kisling will reoffend in a sexually violent fashion was low.
Following 19 days of trial, the jury returned a verdict finding that Kisling was an SVP within the meaning of section 6600, subdivision (a). The trial court ordered Kisling committed to DMH for an indeterminate term for treatment and confinement in a secure facility. On December 9, 2009, Kisling filed a motion for new trial. The trial court denied the motion. Kisling appeals from the verdict and all orders and rulings associated with the trial.
Before addressing Kisling's appellate contentions, we provide an overview of the applicable statutes. The Act provides for the civil commitment of SVP's. (§ 6604.) An SVP is a person who (1) has been convicted of a sexually violent offense listed in section 6600, subdivision (b) against one or more victims and (2) has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. (§ 6600, subd. (a)(1).)
As originally enacted in 1995, the Act "provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial [citations], are found beyond a reasonable doubt to be an SVP . . . . [Citations.] A person's commitment could not be extended beyond that two-year term unless a new petition was filed requesting a successive two-year commitment. [Citations.] On filing of a recommitment petition, a new jury trial would be conducted at which the People again had the burden to prove beyond a reasonable doubt that the person was currently an SVP. [Citations.] . . . [¶] As originally enacted, an SVP was defined 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.' [Citation.]" (McKee, supra, 47 Cal.4th at pp. 1185-1186, fns. omitted.)
"On November 7, 2006, California voters passed Proposition 83, entitled 'The Sexual Predator Punishment and Control Act: Jessica's Law' amending the Act effective November 8, 2006. Proposition 83 . . . change[d] the . . . Act by reducing the number of sexually violent offenses that qualify an offender for SVP status from two to one. [Citation.] Proposition 83 also change[d] an SVP commitment from a two-year term to an indefinite commitment." (McKee, supra, 47 Cal.4th at p. 1186.) "Proposition 83 did not change section 6604's requirement that a person's initial commitment as an SVP be proved at trial beyond a reasonable doubt. Under Proposition 83, section 6605 continues to require current examinations of a committed SVP at least once every year. (§ 6605, subd. (a).) However, Proposition 83 added new provisions to section 6605 regarding the DMH's obligations: Pursuant to section 6605, subdivision (a), the DMH now files an annual report in conjunction with its examination of SVP's that 'shall include consideration of whether the committed person currently meets the definition of a[n] [SVP] 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.' Subdivision (b) now provides that '[i]f the [DMH] determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a[n] [SVP], 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.' (§ 6605, subd. (b).) If the state opposes the [director-authorized] petition, then, as under the pre-Proposition 83 statute, it must prove beyond a reasonable doubt that the person still meets the definition of an SVP. [¶] In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file, as was the case with the pre-Proposition 83 Act, a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also unamended by the Act, provides: 'In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence.' (Italics added.) . . . [¶] In short, under Proposition 83, an individual SVP's commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP." (McKee, supra, 47 Cal.4th at pp. 1187-1188.)
Kisling contends the trial court should have instructed the jury that it was bound by a 1998 jury finding that Kisling was not an SVP. Kisling requested the following jury instruction based on Turner v. Superior Court (2003) 105 Cal.App.4th 1046: "You have heard evidence that in November 1998 respondent was found not to be a Sexually Violent Predator. You must accept that finding as true. [¶] In order for you to find that the petition in this case is true, you must find that petitioner has presented evidence, which shows, beyond a reasonable doubt, that since the time of the prior trial there have been material changes in circumstances which support a finding that respondent is now a sexually violent predator." The trial court denied Kisling's requested instruction. Instead, the trial court instructed the jury as follows: "In a 1998 sexually violent predator trial a jury found that [Kisling] was not a sexually violent predator. The People in this trial must present evidence of a change of ...