Opinion
A146973
01-19-2018
THE PEOPLE, Plaintiff and Respondent, v. BYRON ISAIAH MCCLOUD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VC31353)
This appeal takes as its predicate the differing statutory procedures by which a person may seek release from confinement after being adjudicated a Sexually Violent Predator (SVP), or a Mentally Disordered Offender (MDO), or Not Guilty by reason of Insanity (NGI). The dispositive issue is whether substantial evidence supports the conclusion that a compelling state interest justifies the disparate treatment, and thus the more onerous procedures for SVPs do not violate the guarantee of the equal protection of the law. It does, so we affirm.
BACKGROUND
In 2011, defendant was committed to the former Department of Mental Health (DMH) in accordance with the Sexually Violent Predator Act (SVPA). He appealed the commitment order to this court. The opening of our prior opinion summarized the nature of the dispute and our response:
"McCloud contends that two provisions of the SVPA violate his due process and equal protection rights under the United States Constitution: (1) that commitments are for an indeterminate term, rather than for a fixed term, with the burden placed on the committee, if the DMH opposes release, to show that he or she is no longer a sexually violent predator (SVP) and (2) that when a committee petitions for release and the trial court determines that the petition is frivolous, the trial court may dismiss the petition without a hearing. Additionally, McCloud maintains that the jury's determination that he is an SVP was not supported by sufficient evidence.
"We conclude that McCloud's due process claims are foreclosed by People v. McKee (2010) 47 Cal.4th 1172 (McKee I). We concur with the finding of the court in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) (review den. Oct. 10, 2012, S204503), that the SVPA's provisions for indeterminate commitments and burden of proof do not violate a committee's right to equal protection. We conclude that substantial evidence supported the jury's determination that McCloud is an SVP. Accordingly, we affirm the order of the trial court committing McCloud to the custody of the DMH.
"However, McCloud's remaining issue on appeal, that the SVPA's provision allowing dismissal of a frivolous petition for release without a hearing violates his right to equal protection, is not meritless on its face. We remand to the trial court for further proceedings regarding that issue." (People v. McCloud (2013) 213 Cal.App.4th 1076, 1079 (McCloud I).)
Following issuance of our remittitur, the trial court (Hon. E. Bradley Nelson) conducted those further proceedings. Over the course of four days, he heard witnesses from both sides, received extensive briefing, and heard lengthy argument. Judge Nelson then filed a comprehensive 12-page "Statement of Decision Re: Equal Protection Challenge to Welfare and Institutions Code Section 6608(a)."
The challenged statute provides: "A person who has been committed as a sexually violent predator shall be permitted to petition the court for conditional release with or without the recommendation or concurrence of the Director of State Hospitals. If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the court shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing. The person petitioning for conditional release under this subdivision shall be entitled to assistance of counsel in all hearings under this section. The person petitioning for conditional release shall serve a copy of the petition on the State Department of State Hospitals at the time the petition is filed with the court." (Welf. & Inst. Code, § 6608, subd. (a) (section 6608(a)).)
Judge Nelson's "Findings and Conclusion" read as follows:
"The express frivolous dismissal provision in section 6608(a) is reasonable and factually based. It passes constitutional muster under either strict scrutiny or the less stringent rational basis standard. Allowing frivolous petitions to not only be filed, but to proceed to a hearing notwithstanding that they are totally and completely without merit, will undermine the indeterminate commitment of SVPs, and may well impede their chance of being successfully treated and ultimately released. Necessary treatment, which is difficult enough to get most SVPs engaged in and committed to, will be unnecessarily interrupted. Such petitions themselves may well become a distraction from the rigors or requirements of treatment. Release petitions accompanied by a supporting medical evaluation or other evidence that the SVP is engaged and making progress in treatment are less likely to be deemed frivolous, as are petitions that allege facts, as opposed to mere conclusions, showing some evidence that the petitioner may be eligible for conditional release. The legislative body's inference or perception that a specifically enumerated safeguard against the filing of frivolous release petitions by committed SVPs is necessary to further the state's compelling interests in public safety and the humane treatment of SVPs is reasonable, factually based and adequately justified. [Section] 6608(a) does not violate equal protection."
This ruling effectively denied defendant's "Petition for Conditional or Unconditional Release," and thus constitutes an appealable order. (See People v. Herrera (1998) 66 Cal.App.4th 1149, 1152, disapproved on a different point in People v. Cheek (2001) 25 Cal.4th 894, 903.)
DISCUSSION
Refining The Issue
In his opening brief, defendant frames his contentions as follows: "I. This Court Must Conduct Independent De Novo Review of the Trial Court's Decision"; "II. The Trial Court Abused its Discretion by Applying the Wrong Legal Standard to its Decision Making Process"; "III. The Trial Court Erroneously Took Judicial Notice of the Facts in . . . McKee II"; "IV. The Frivolous Dismissal Provisions of Welfare and Institutions Code Section 6608, Subdivision (a) Do not Pass Muster Under a Strict Scrutiny Equal Protection Analysis"; and "V. The Frivolousness Review Process Imposes a Significant Burden on Persons Committed as SVPs Such that the Process Cannot be Found to be of Relatively Little Importance."
In general, the briefs of defendant and the Attorney General show they are fully conversant with the legal background, so there is no strong reason to explicate or dissect McKee I, McKee II, and McCloud I, in order to set the analytical stage. It suffices to state our initial conclusions:
(1) McKee I was interpreted in McKee II as establishing that strict scrutiny was the appropriate test (McKee II, supra, 207 Cal.App.4th 1325, 1335, 1348), and that "[t]herefore . . . the government must show both a compelling state interest justifying the disparate treatment and that the disparate treatment is necessary to further that compelling state interest," but not use of the least restrictive means. (Id. at pp. 1348-1349.)
(2) McKee II further established that appellate review was independent but not de novo: "we conclude the People on remand met their burden to present substantial evidence, including medical and scientific evidence, justifying the [SVPA's] disparate treatment"; "in independently reviewing the record for that substantial evidence, our power begins and ends with the determination whether there is substantial evidence, contradicted or uncontradicted, to support the legislative determination, and when two or more inferences can reasonably be deduced from the evidence, we are without power to substitute our deductions for those of the legislative body." (McKee II, supra, 207 Cal.App.4th 1325, 1347-1348.) And, to reiterate, the substantial evidence in this context is not necessarily testimony from a witness in Judge Nelson's courtroom—it only has to be reasonable inferences derived from substantial evidence in the record. (Id. at pp. 1338-1339.)
(3) Without question "[t]he state has a compelling state interest in protecting society from dangerous persons and in its treatment of those confined due to mental illness." (People v. Landau (2013) 214 Cal.App.4th 1, 46), citing McKee I, at pp. 1203-1204; accord, McKee II, at pp. 1331, 1347, 1349.)
(4) The record does not establish that Judge Nelson took judicial notice as claimed by defendant. Quite the contrary—he denied the prosecution's request to do so, agreeing with defendant that it was not a proper subject of judicial notice. In any event, the claimed misuse occurred in 11 "issues" that Judge Nelson "believe[d] have already been laid to rest by the combination of McKee I and McKee II, and the California Supreme Court's denial of review in McKee II." Those "issues" would not be dispositive (if they were, Judge Nelson would not have needed the evidentiary hearing) to our independent review. In addition, there was some undeniable overlap and repetition in that, as Judge Nelson noted, "at least two [of the four witnesses] had previously testified at the evidentiary hearing held by the trial court, on remand" in McKee II, and one "essentially repeated the testimony summarized in McKee II." The alleged judicial notice would therefore be simply cumulative to the actual testimony and other evidence received by Judge Nelson. In light of these circumstances, the claimed error would not qualify as prejudicial. (Cal. Const., art. VI, § 13.)
(5) However, McKee II involved a number of issues of fact that have already been conclusively established as supported by substantial evidence. To wit: "[W]e conclude the People on remand met their burden to present substantial evidence, including medical and scientific evidence, justifying the amended Act's disparate treatment of SVP's (e.g., by . . . placing on them the burden to prove they should be released). (McKee, supra, 47 Cal.4th at p. 1207.) The People have shown that, 'notwithstanding the similarities between SVP's and MDO's [and NGI's], the former as a class bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society.' (Id. at p. 1208.) The People have shown 'that the inherent nature of the SVP's mental disorder makes recidivism as a class significantly more likely[;] . . . that SVP's pose a greater risk [and unique dangers] to a particularly vulnerable class of victims, such as children'; and that SVP's have diagnostic and treatment differences from MDO's and NGI's, thereby supporting a reasonable perception by the electorate that passed Proposition 83 that the disparate treatment of SVP's under the amended Act is necessary to further the state's compelling interests in public safety and humanely treating the mentally disordered. (47 Cal.4th at p. 1208.)" (McKee II, supra, 207 Cal.App.4th 1325, 1347.)
Finally, (6) Judge Nelson did not apply "the wrong legal standards" as defendant claims. The specifics are that Judge Nelson "did not decide what was true and whether the government had met its burden of proving by a preponderance of the evidence—only that substantial evidence existed to support the government's position. The substantial evidence test is for appellate review, not trial court fact finding." Seizing upon Judge Nelson's use of the phrase "substantial evidence," defendant ignores the three pages in the Statement of Decision where Judge Nelson discusses each of the four witnesses' testimony under the heading "Evidentiary Hearing". There is absolutely nothing in the record suggesting that Judge Nelson abdicated or neglected his function to weigh the testimony and evidence. He merely borrowed a term used extensively in McKee II. (McKee II, supra, 207 Cal.App.4th 1325, 1138 ["We independently determine whether the People presented substantial, factual evidence"], 1339 ["we must determine whether the People presented substantial evidence"], 1343 ["we, like the trial court, conclude there is substantial evidence"], 1347 ["we conclude the People on remand met their burden to present substantial evidence . . . justifying the . . . Act's disparate treatment"].)
Moreover, even if the claimed error did occur, it would have no adverse impact on the ability of this court to conduct an independent review of the record to determine whether there is substantial evidence to support Judge Nelson's "Findings and Conclusion". (Cf. People v. Landau, supra, 214 Cal.App.4th at pp. 47-48 ["We reject defendant's contention that the McKee II court misapplied the standard of review. It reviewed the evidence de novo. 'We believe we are in as good a position as the trial court to decide whether the evidence presented by the People during the remand hearing satisfied their burden to justify the disparate treatment of SVP's under the [SVPA].' (McKee II, supra, 207 Cal.App.4th at p. 1338, fn. 3.) The appellate court agreed with the trial court that the People produced substantial evidence to justify the disparate treatment. (Id. at pp. 1330-1331.)"].) Thus, again, the claimed error would be harmless. (Cal. Const., art. VI, § 13.)
Resolving the Issue
We note that a number of reported decisions have rejected general equal protection challenges to the SVPA procedures, including placing the burden on the person committed to prove that he or she should be released, and several of these decisions, commencing with Division Three of this District, have interpreted the post-McKee I remand as intended by the Supreme Court to effect a global resolution of the equal protection issue. (People v. McKnight (2012) 212 Cal.App.4th 860, 863-864 ["It is plain that McKee II is not to be restricted to Mr. McKee alone . . . , but rather its holding applies to the class of SVP's as a whole "]; accord, People v. McDonald (2013) 214 Cal.App.4th 1367, 1378 ["In McKee I, supra, 47 Cal.4th at page 1208, the Supreme Court explained the People's burden on remand would be to prove that SVP's 'as a class'—and not McKee as an individual—'bear a substantially greater risk to society.' As an example of how the People might satisfy this burden, the court stated the People may demonstrate 'the inherent nature of the SVP's mental disorder makes recidivism as a class significantly more likely.' (Ibid. italics added.) The Supreme Court's emphasis on classwide proof . . . demonstrates to us the Supreme Court intended the equal protection challenge to the Amended SVPA be resolved on a classwide basis in a single case."]; People v. Kisling (2014) 223 Cal.App.4th 544, 548 ["we agree the Supreme Court intended for the remanded proceedings in McKee I to be, as a matter of law, dispositive in all cases on the issue of whether the disparate treatment between SVP's and MDO's/NGI's was justifiable"]; cf. People v. Field (2016) 1 Cal.App.5th 174, 189 [summarily rejecting argument "the SVPA violates equal protection because the burden of proof is placed on SVP's when they seek release from civil confinement"]; People v. Gray (2014) 229 Cal.App.4th 285, 291 ["Every published opinion to consider the issue has concluded the . . . SVPA passes constitutional muster under the strict scrutiny test"].)
With this in mind, what defendant mistakenly sees as Judge Nelson improperly taking judicial notice assumes an entirely different complexion. Instead of accepting allegedly improper hearsay factual determinations made at the McKee remand, Judge Nelson was acknowledging binding legal determinations (i.e., the 11 "issues . . . that . . . have already been laid to rest by the combination of McKee I and McKee II, and the California Supreme Court's denial of review in McKee II"). The very limited issue before him was what this court had determined was an exception to the classwide, statewide, conclusive nature of the McKee proceedings. That issue concerned the distinction in section 6608(a) between frivolous and non-frivolous petitions submitted by SVPs.
The Supreme Court made it clear that a petition for release would qualify as frivolous if it " 'indisputably has no merit.' " (McKee I, supra, 47 Cal.4th at p. 1192.) If a petition is not frivolous, it may not be summarily denied, but must be addressed at an evidentiary hearing. (See Welf. & Inst. Code, § 6608, subd. (c); People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1069-1070; People v. Olsen (2014) 229 Cal.App.4th 981, 993-994.) The issue we put before Judge Nelson was in effect a sub-issue of what the Supreme Court ordered in McKee I: "We . . . remand this case to the trial court to determine whether the People . . . can demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment. The trial court may, if appropriate, permit testimony." (McKee I, supra, at 1208-1209, fns. omitted.) After allowing expert testimony from both sides, Judge Nelson determined that the People had satisfied this burden. The only remaining issue for us is whether our independent review of the record establishes that substantial evidence supports Judge Nelson's determination. It does.
Our review of the record shows there is more than ample substantial evidence to support the following recitals by Judge Nelson:
Dr. Amy Phenix, called by the prosecution, "is a licensed clinical psychologist who has performed hundreds of MDO and SVP evaluations, has qualified to testify as an expert witness in dozens of MDO and SVP hearings, and who has previously worked for California's Department of Mental Health and the Department of State Hospitals. Among other things, she testified as follows: Unlike MDOs few SVPs have major mental illnesses which are generally treatable with medications. Almost all SVPs have a paraphilia of one type or another. These are incurable but manageable. Most SVPs also suffer from Antisocial-Personality Disorder or features which make them impulsive and disorganized. Most SVPs require a minimum of four to eight years of inpatient treatment, are seldom treatable with medications and are treatment resistant. In fact, most say 'No' to treatment."
Dr. Allen Abrams, called by defendant, "is a licensed psychiatrist (and lawyer) with expertise in SVP, MDO and NGI cases, although he has never worked in a facility where either SVPs or NGIs have been treated or committed. He opined that, other than 'fixated pedophiles' the root causes of sexual offenses were substance abuse and/or basic criminality. However, with respect to fixated pedophiles, he testified that there were few proven treatments for them, as a group they pre-plan their crimes, are very calculating, and are known to groom their victims, and that they continue to pose an elevated risk level to society well past age 40. He admitted that SVPs, as a class of civil committees, have low treatment compliance. They 'quickly' learn that their statements about their thoughts and conduct are not confidential and that admitting the need for hospitalization and treatment is used to justify hospitalizations that they do not believe they should be subjected to. In contrast, MDOs typically understand that their release is conditioned upon going to treatment, so they go. In other words, unlike MDOs, SVPs often refuse to engage in treatment or conceal their true thoughts or conduct to try and avoid hospitalization. Dr. Abrams also opined that allowing SVPs to be removed from their treatment facility for purposes of having a hearing on a petition for release, whether frivolous or not, would not negatively impact their treatment. However, given his testimony (and others') about the low treatment compliance of SVPs and their tendency to conceal or hide their true feelings and thoughts about their need for treatment, that opinion is simply not credible. Finally, Dr. Abrams opined that it is/was a 'good idea' for the legislative body to have tried to limit frivolous release petitions in W&I § 6008(a) and admitted that release petitions accompanied by a supporting doctor's evaluation were less likely to be frivolous. He commended the states that require a doctor's certificate of merit to accompany a medical malpractice lawsuit in order to prevent frivolous lawsuits."
"Dr. Anthony Urquiza [for the People], who like Dr. Abrams testified in the McKee I remand hearing" "essentially repeated the testimony summarized in McKee II . . . about the unique and pervasive nature of the trauma suffered by child sexual abuse victims, their increased likelihood of being re-victimized, the long term effects of their victimization on their development, and its profound impact on their ability to fashion and maintain meaningful and healthy relationships with other adults."
Dr. Christopher Fisher, called by defendant, "is a clinical and forensic psychologist with experience treating and evaluating sex offenders, MDOs and NGIs. Through opinion testimony and exhibits (Defendant's/respondent's Exh. A) he disputed assertions that SVPs had higher recidivism rates than MDOs or NGIs. However, he admitted that very few SVPs had yet been released into the community so that their actual recidivism rates could be measured. He opined that if a SVP does not acknowledge or engage in treatment, that treatment is less likely to be successful, and that sex offenders generally require at least two years of engaged treatment, both in groups and individually, to be successful. In contrast many MDOs and NGIs can be successfully treated in a shorter period of time with medications."
The crucial point was addressed by Judge Nelson as follows: "In the evidentiary hearings before this court, the reasonableness and necessity of placing a limit like the frivolous dismissal limit on a committed SVP's right to petition was expressly identified and justified (e.g., Dr. Abrams)." That alone is substantial evidence supporting a reasonable inference that is sufficient to permit section 6608(a) to survive defendant's equal protection challenge. (Evid. Code, § 411; McKee II, supra, 207 Cal.App.4th 1325, 1337-1338, 1347-1348.) So is Dr. Phenix's testimony about the desirability of not interrupting treatment.
DISPOSITION
The order is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.