Opinion
A131853
02-13-2013
THE PEOPLE, Plaintiff and Respondent, v. ATOA ATUALEVAO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County
Super. Ct. No. 142942)
INTRODUCTION
Atoa Atualevao raped four women. After serving his last prison sentence, he was evaluated for involuntary treatment and commitment as a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600 et seq., known as the Sexually Violent Predator Act, or SVPA. In 2011, a jury found true the allegation that Atualevao is an SVP and the court committed him to a state hospital for an indeterminate term. On appeal, Atualevao challenges the evidence as insufficient to sustain the jury's finding, and the jury instructions as violative of his constitutional rights. He also raises constitutional challenges to the use of the term "sexually violent predator" and to the imposition of an indeterminate term under the amended SVPA. We reject Atualevao's contentions and affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
Statement of the Case
In 2002, the Alameda County District Attorney's Office filed a petition to involuntarily commit Atualevao to a state mental hospital for a period of two years as an SVP within the meaning of section 6600 et seq. In 2006, the district attorney filed an amended petition to involuntarily commit Atualevao as an SVP for an indeterminate term under the statute. Following a mistrial in 2010, trial on the amended petition recommenced in February 2011. On March 25, 2011, a jury found the petition true and the court committed Atualevao to the Department of Mental Health for an indeterminate term. Atualevao timely appeals.
Statement of Facts
Predicate Offenses
In November 1978, Atualevao raped Barbara L. In December 1978, Atualevao raped Barbara B. Atualevao was initially sentenced to probation for both crimes, but after he violated his probation he was sentenced to prison for six years four months.
In March 1986, Atualevao raped Denise L. In November 1987, Atualevao raped Denise S. He was sentenced to 11 years in state prison for the rape of Denise L. Atualevao was released on parole in 1993, violated parole, was returned to prison for four months, and was re-released on parole in May 1994.
In August 1994, Atualevao robbed his employer at knife point. In September 1995, he was sentenced to prison for 13 years. Prior to his impending release in May 2002, Atualevao was evaluated for treatment as an SVP and was sent to Atascadero State Hospital.
Doctors Dana Putnam and Dawn Starr, both forensic psychologists, evaluated Atualevao for treatment as an SVP. Dr. Putnam first evaluated Atualevao in 2002, and had written seven updated reports on him since then to ensure his findings remained current. Dr. Putnam wrote updated evaluations of Atualevao on (1) August 12, 2002; (2) March 18, 2005; (3) November 3, 2006; (4) June 18, 2007; (5) December 22, 2008; (6) June 26, 2009; and (7) November 30, 2010. He wrote an addendum to the 2009 report on October 20, 2009. Dr. Putnam interviewed Atualevao for four hours on April 29, 2002. He also interviewed Atualevao in 2006, 2008, 2009, and 2010. He also reviewed documents related to the rapes and hospital records to identify changes in risk assessment or diagnosis over time.
Diagnosable Mental Disorder
Dr. Putnam opined that Atualevao currently has a diagnosable mental disorder within the meaning of section 6600. That diagnosis is paraphilia not otherwise specified (NOS). Nonconsensual sexual activity with women is the basis of the paraphilia. Dr. Putnam also provisionally diagnosed Atualevao with antisocial personality disorder (because he had no information about Atualevao's conduct before the age of 15) and alcohol dependence in a controlled setting. Atualevao also scored over the threshold for psychopathy on the Hare PCL-R test. This is significant in that individuals who score high on psychopathy have an increased risk for sexual recidivism.
A diagnosis of paraphilia NOS with nonconsenting adults means that the individual is aroused by the nonconsent of the victims, and it is considered rare. In Dr. Putnam's opinion, this diagnosis affected Atualevao's volitional capacity in that the behavior continued despite the risk to himself and his victims, despite arrest, probation, and prison, and despite the negative effect on his wife, his child, and his ability to hold a job. All this indicated a problem with volitional capacity.
Dr. Putnam's subsequent evaluations of Atualevao did not change his opinions about his diagnoses. For example, in 2005, Atualevao was having significant difficulties following rules and maintaining appropriate boundaries in the hospital setting. He did not participate in the active phase of the sex offender treatment that was being offered. In 2006, Dr. Putnam discovered that Atualevao was having a romantic relationship with a hospital police officer at Atascadero. She had been removed from her position. Inasmuch as it was clearly forbidden for patients to have such relationships with staff members, and that engaging in such behavior was likely to result in negative consequences for the staff person and him, this was another indication of Atualevao's antisocial tendencies at work. In addition, Atualevao had a "generally negative response to offered sex offender treatment" and his behavior was described as "often quite confrontational, negative, and sometimes outright violent."
In 2008, Atualevao still did not see anything wrong with writing to the rape victims. At this time, he admitted the 1978 rapes, but blamed them on his drinking. He did not admit the 1986 or 1987 rapes. Atualevao admitted that that he masturbated once or twice a month, although he had previously denied masturbating. This was significant in that it demonstrated that Atualevao continued to have sexual interest and arousal, and that he lied. At this time, Atualevao advised Dr. Putnam for the first time that he had been molested as a child. In 2009, Atualevao in general did not participate in sexual offender treatment.
In 2010, Atualevao became agitated, argumentative and violent over a dispute about a tennis racket; he punched a bulletin board, breaking the Plexiglas. This showed that he was still energetic despite aging, and that he had not mellowed much. In 2010, he also obtained oxycontin from a peer, and admitted a romantic relationship lasting one to two years with another female staff member. And, learning that his brother had been abusive to his niece, Atualevao reported that he was going to beat up his brother, indicating that "he still would be very willing to resort to physical violence as a way of problem solving." He also finally admitted all of the rapes, although he never agreed with the versions of what happened reflected in the police reports or victims' statements.
Substantial Risk of Sexual Reoffense
Dr. Putnam was also of the opinion that there is a serious, well-founded, and substantial risk that Atualevao will commit sexually violent, predatory acts in the future. Dr. Putman noted that Atualevao's alcohol dependence and antisocial characteristics that are part of his psychopathy "work[] together with his paraphilia in such a way that it results in the commission of . . . criminal sexual acts." The alcohol consumption fuels disinhibition, meaning that a person "will engage in behaviors [he] otherwise might not engage in but have a desire to engage in." Atualevao's psychopathy, including his antisocial traits, "related to him being willing to commit these kinds of offenses or being insensitive to the victims and the willingness to engage in illegal behavior and impulsivity."
Between 2002 and 2010, Dr. Putnam also administered several updated versions of actuarial risk instruments designed to quantify the type of risk posed by Atualevao for sexually reoffending. He administered the Static-99 in connection with his first evaluation of Atualevao. At that time, Atualevao tested at high risk of reoffense. Dr. Putnam did a risk reassessment in 2005. He noted some reduction of risk due to Atualevao's age (now 50) and considered whether there was a "possibility of him engaging in treatment in the community." He concluded "there was not sufficient basis to believe that voluntary treatment in the community was likely or that it would significantly reduce the possibility of future sexual offending."
Dr. Putnam reassessed the risk in 2006 using two new tests, the Sex Offender Risk Appraisal Guide (SORAG), and the Minnesota Sex Offender Screening Tool Revised (MnSOST-R). He was still of the opinion that Atualevao was likely to engage in sexually violent predatory criminal behavior as a result of his diagnosed mental disorder. In December 2008, Dr. Putnam added a new tool, the Static-2002, to reassess the risk. His opinion of Atualevao's risk did not change. In 2009, Dr. Putnam readministered the MnSOST-R, Static-99 and Static-2002. There was no change in his opinion.
In November 2009, Dr. Putnam fine-tuned his assessment of Atualevao to incorporate recent changes in the Static-99R, Static-2002R, MnSOST-R and the SORAG. In this most recent assessment, Atualevao scored an eight on the Static-99R, placing him in the high risk category to reoffend, and correlating with a rate of reoffense of 37.2 percent over five years, and a rate of 46.3 percent over 10 years. On the Static-2002R, Atualevao scored a seven, in the moderately high risk category, with a 25.2 rate of reoffense in five years and a 35.8 rate in 10 years. Over time, from Dr. Putnam's first evaluation to his most recent evaluation, his assessment of Atualevao's risk to reoffend had changed. Dr. Putnam now saw Atualevao "as being at a somewhat lower risk for re-offense than I initially did, but his risk for re-offense still is moderate to high, but it's not as high as it was when I [first] officially evaluated him. [¶] . . . [¶] . . . [M]y opinion still remains that he is a serious and well-founded risk of sexual re-offense." As for amenability to treatment, Dr. Putnam did not believe that Atualevao is amenable to voluntary treatment "in that he does not express that he believes he has a current disorder related to his sexual behavior. He does not believe he's in need of treatment. He does not currently participate in treatment."
Dr. Dawn Starr shared Dr. Putnam's opinions. Dr. Starr diagnosed Atualevao with paraphilia NOS with a focus on nonconsenting sex and alcohol dependence, as well as personality disorder NOS with antisocial and narcissistic features. All the diagnoses were for current conditions. Dr. Starr also opined that that Atualevao was likely to reoffend in a sexually violent manner as a result of his diagnosed disorder. She gave Atualevao a score of six in the Static-99R, which placed him in the high risk category and correlated with a rate of reoffense of 31 percent over five years and 41.9 percent over 10 years.
Atualevao's Testimony
Atualevao was called as a witness by the district attorney. He does not believe he has a mental disorder that makes him an SVP. "All I know is I'm not an SVP. I know myself. . . . [¶] . . . [¶] You know, I rape people. . . . I'm a criminal. That's what it was. Criminal. Those are the things I did in the past. A crime. You know, I was a thug. [¶] And I don't have a mental disorder, you know. I didn't have to commit the crimes I did in the past. No, I don't have a mental disorder." He did not participate in the phased treatment program for SVP's at Atascadero. The program is not going to help him, because he does not have a mental disorder. He did attend Alcoholics Anonymous meetings.
Atualevao admitted sending a number of love letters to Denise S. from prison. In prior testimony, Atualevao admitted that on March 10, 1990, he wrote and mailed nearly identical love letters to both Denise L. and Denise S. At trial, after first denying that he ever wrote to Denise L., Atualevao eventually acknowledged that he believed he sent letters to Denise L. as well, but he did not remember doing so.
According to Atualevao, his relationship with a female police officer assigned to Atascadero was platonic, although they were basically girlfriend and boyfriend, and she left her husband and children for him. The relationship began when he commented favorably on her perfume and continued after she resigned and he was transferred to Coalinga. It ended in 2008 or 2009, when "[a]nother clinical social worker fall [sic]in love with me." However, in prior testimony given on December 3, 2009, Atualevao claimed the relationship with the police officer was still ongoing.
Atualevao had weekly, one-hour individual therapy sessions related to his molestation as a child with the social worker who was his girlfriend. She asked him to be her boyfriend. After thinking about it, he decided "[s]he wanted me so I went for it." Also, he was afraid she would put something bad in his chart, and he was concerned she might lose her job. The relationship was discovered from phone calls between them that were recorded while he was at Santa Rita Jail. This relationship, too, was platonic.
Atualevao's Experts
Doctors Jay Adams, Ph.D., and Alan Abrams, M.D., testified for Atualevao. Neither doctor found anything in the rapes themselves that showed Atualevao was specifically aroused by the nonconsent of his victims. Neither doctor believed that Atualevao suffered from a current mental disorder that predisposed him to engage in sexually violent behavior. Neither doctor believed Atualevao was in need of sex offender treatment. According to both doctors, Atualevao did not pose a serious and well-founded risk of reoffense if released from custody.
DISCUSSION
Sufficiency of the Evidence
Atualevao contends there was insufficient "recent objective evidence" and "current psychological symptoms" to support the jury's implied findings that Atualevao (1) suffers from a qualifying current mental disorder that (2) renders him likely to reoffend. He also argues the offenses were too remote to show a current mental disorder, and his recent conduct "does not show current symptoms or recent objective evidence of a serious difficulty in refraining from sexually violent predatory acts."
Atualevao challenges the sufficiency of the evidence in proceedings under the SVPA. We apply the familiar standard applicable in criminal cases. "[T]his court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ' "of ponderable legal significance . . . reasonable in nature, credible and of solid value." ' " (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) "In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." (People v. Poe (1999) 74 Cal.App.4th 826, 830.) We do not reassess the credibility of experts or reweigh the relative strength of their conclusions. (Id. at p. 831.) We reverse if, and 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.)
In our view, Atualevao's reliance on People v. Buffington (1999) 74 Cal.App.4th 1149 (Buffington)is misplaced. In Buffington, the defendant argued "that the SVPA's evidentiary requirements for determining who is suffering from a mental disorder and who is likely to reoffend are unconstitutional because they are lower than other civil commitment schemes. Buffington argue[d] that the SVPA does not require 'any recent objective basis for a finding that an inmate is likely to reoffend.' No current psychological symptoms are needed and no recent overt act is required, Buffington assert[ed]." (Id. at p. 1159.) Rejecting that contention, the Court of Appeal observed that "[c]ontrary to Buffington's claim, 'current psychological symptoms are needed' to establish that a person is an SVP [under the SVPA]." (Id. at p. 1161) The SVPA requires " 'recent objective indicia of the defendant's condition' and a 'recent objective basis for a finding that an inmate is likely to reoffend.' " (Ibid.)
Nothing in Buffington's analysis suggests expert testimony is insufficient to establish the requisite recent objective indicia of the defendant's condition, or current psychological symptoms. On the contrary, it found that the requirement of recent objective indicia of the defendant's condition was satisfied by the SVPA's "comprehensive administrative process for screening and evaluation, requiring professional assessments of various diagnoses and specified risk factors; it then subjects these assessments to a thorough judicial process, including a trial under the standard of proof beyond a reasonable doubt." (Buffington, supra, 74 Cal.App.4th at p. 1161; see also People v. Poe, supra, 74 Cal.App.4th at p. 833 [the SVPA requires a recent objective basis for commitment in the form of two experts credited by the trier of fact that the person presently suffers from a mental disorder which predisposes him to commit further sexually violent predatory crimes].)
We also reject Atualevao's contention that "all of the evidence of sexual violence by Mr. Atualevao is stale and insufficient to support an inference that he suffers from a current serious difficulty in refraining from such acts." Doctors Putnam and Starr did not rely solely on Atualevao's qualifying offenses for their opinions that Atualevao suffered from paraphilia and other mental disorders which rendered him likely to reoffend in a sexually violent manner. The doctors explained their reasons for arriving at these opinions, referencing not only Atualevao's prior sexual crimes but his behavior in the hospital over time, up to and including his most recent conduct, as well as the results of actuarial analysis. It was for the jury to decide whether the experts' stated bases for their opinions - including actuarial calculations, hospital record review, and observations of and interactions with Atualevao - credibly substantiated their opinions. Inasmuch as Atualevao has been in the secure setting of a state prison or hospital since his last offense, the jury could reasonably infer from the doctors' testimony that Atualevao has been constrained from acting out in a sexually violent predatory manner, yet he still suffers currently from a chronic disorder. The experts' testimony provides substantial evidence supporting the jury's finding that Atualevao is an SVP.
Use of Term "Sexually Violent Predator" During Trial
Atualevao argues "[t]he repeated use of the inflammatory term 'sexually violent predator' before the jury was a denial of due process." He specifically blames the Legislature for this constitutional violation. 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. It even appears in capital letters on the verdict form. And yet it is unnecessary." He explains: "Sex and violence are the two most primal of concepts, occupying the lower brain functions and exploited in the media for their hypnotic and emotional impact. 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.' " He adds: "There is no reason why the jury could not be instructed in the language of [section 6600, subdivision (e)] without reference at all to the term 'predatory.' There is no reason why the arguments of counsel and the testimony of witnesses could not be framed in the terms of the definition with no reference to the term 'predator.' [¶] Similarly, the term '6600' may be used at any time when the term 'sexually violent predator' is used to designate a person subject to commitment under [section 6600]."
Although Atualevao analogizes the use of sexually violent predator terminology to instances of prosecutorial misconduct, he appears to acknowledge that, in this case, the prosecutor is not at fault. "[I]t is the hand of the Legislature that has injected this misconduct into the trial. But the effect on the fairness of the proceeding, the damage to the due process rights of the person against whom the forces of the state have been deployed in trial is not less, but more when the source of the misconduct is the drafters of laws."
Atualevao is correct that the Legislature, as the drafter of the law to which Atualevao's conduct and mental disorder make him subject, specifically defines the terms "sexually violent predator," "sexually violent offense," and "predatory." (§ 6600, subds. (a)(1), (b) & (e).) And, as he correctly points out, the trial necessarily raised the subject of his acts of sex and violence. We conclude there was no error for the parties, the court, or the witnesses to use the statutorily defined terms "sexually violent predator," "sexually violent offense," or "predatory," and variations thereof to describe him or his conduct. We conclude defendant has not demonstrated the type of error, or the kind of prejudice, a court is empowered to remedy by reversal of the judgment. In our view, Atualevao's arguments would be better addressed to the Legislature, which created the nomenclature to which he objects.
Asserted Instructional Errors
Next, Atualevao contends the jury instructions were prejudicially erroneous in two respects. First, he argues that CALCRIM No. 3454 "inherently reverses the burden of proof" by asking the jury "to determine whether the health and safety of others had been 'ensured.' " Second, he argues that CALCRIM No. 3454 reduces the prosecution's burden of proof by asking the jury to determine if the risk of reoffense is "well-founded." Before turning to the merits of Atualevao's contentions, we set forth the legal principles which govern our analysis. First, "[w]e conduct independent review of issues pertaining to instructions." (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) Next, we determine the correctness of the challenged instruction "in the context of the instructions as a whole and the entire record," and not " ' "in artificial isolation." ' " (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1155.) Finally, "[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
As the court below instructed, CALCRIM No. 3454 provides in relevant part: "The petition alleges that [Atualevao] is a 'sexually violent predator.' [¶] To prove this allegation, the People must prove beyond a reasonable doubt that: [¶] 1. He has been convicted of committing sexually violent offenses against one or more victims; [¶] 2. He has a diagnosed mental disorder; [¶] 3. As a result of that diagnosed mental disorder, he is a danger to the health and the safety of others because it is likely that he will engage in sexually violent predatory criminal behavior; [¶] AND [¶] 4. It is necessary to keep him in custody in a secure facility to ensure the health and safety of others." (Italics added.)
The instruction tracks the language of the statute. Section 6600 defines a sexually violent predator as someone "who has been convicted of a sexually violent offense against one 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." (§ 6600, subd. (a)(1), italics added.) It defines a diagnosed mental disorder as a "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), italics added.)
Atualevao correctly notes the italicized language contained in paragraph 4 should be given sua sponte if evidence is presented about amenability to voluntary treatment. (2 Judicial Council of Cal., Crim. Jury Instns. (2012) Bench Notes to CALCRIM No. 3454, pp. 1051-1052; People v. Grassini (2003) 113 Cal.App.4th 765, 777.) Sua sponte instruction is required because our Supreme Court has stated or observed in several cases that "evidence of amenability to voluntary treatment, if such evidence is presented, is 'relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody,' " thereby indicating that "this is not a matter constituting a theory of defense but is essential to the determination to be made by the trier of fact, and thus constitutes a general principle of law necessary to the jury's understanding of the case." (Id. at pp. 777-778.) The Grassini court declined to decide whether such an instruction must be given sua sponte when evidence of amenability to treatment is not presented. (Id. at p. 777, fn. 3.) Atualevao contends that the above-italicized clause in CALCRIM No. 3454 "unfortunately and mechanically adopts the language from [Grassini]that does not convey the idea that is central to the holding." However, the jury was not presented with any evidence that Atualevao would voluntarily seek treatment for his mental disorder in the community if he were released. On the contrary, the evidence showed Atualevao did not consider himself mentally disordered or in need of sex offender treatment, and neither did his expert witnesses. Since the expert opinion suggested Atualevao was not amenable to treatment, whether inside or outside the institutional setting, the instruction's failure to mention amenability to treatment could not have prejudiced him.
There was evidence Atualevao sought treatment for alcohol abuse through 12-step programs and Native American rituals.
As for Atualevao's main point, that CALCRIM No. 3454 reverses the burden of proof, we disagree. Atualevao's argument singles out one clause of the instruction for scrutiny and analyzes it out of context. Viewed in light of the instruction as a whole and the evidence adduced at trial, rather than in artificial isolation, it is plain to us that the instruction asked the jury to determine whether the evidence presented proved beyond a reasonable doubt that (1) Atualevao had a diagnosed mental disorder, (2) that the mental disorder made it likely he would reoffend, and (3) whether institutionalization was necessary to make sure he did not reoffend again in the community. Contrary to Atualevao's suggestion, the instruction did not require the jury to decide the question of whether "the health and safety of others has been ensured." In our view, it is not reasonably likely that the jury would have understood the instruction to mean "a person must be committed unless they can ensure the safety of the community . . . effectively [creating] a presumption of dangerousness." The instruction does not shift the burden of proof to the defendant. No error occurred.
Atualevao also argues CALCRIM No. 3454 reduces the prosecution's burden of proof by asking the jury to determine if the risk of reoffense is "well-founded." The statute does not use the term "well-founded risk." That phrase apparently has its genesis in People v. Superior Court (Ghilotti)(2002) 27 Cal.4th 888 (Ghilotti), where the Supreme Court concluded "the phrase 'likely to engage in acts of sexual violence' (italics added), 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.)
Tracking Ghilotti's language, CALCRIM No. 3454 as given here provided: "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. The likelihood that the person will engage in such conduct does not have to be greater than 50 percent." (Italics added.) Atualevao argues that this instruction can mislead the jury into thinking it did not have to find the dangerousness element beyond a reasonable doubt.
Atualevao's argument is similar to Justice Werdegar's separate concurring opinion in Ghilotti in which she disagreed with the majority opinion's statutory interpretation of the word "likely." There she observed: "While it may be theoretically possible to ask a jury whether, beyond a reasonable doubt, there is a 'substantial danger' of reoffense, the use of such a low-risk threshold threatens to vitiate the effect of the high evidentiary standard and unanimity requirement. Because the low 'substantial danger' standard will virtually always be met, the requirement of proof beyond a reasonable doubt fades radically in significance. If the person has committed prior violent sex crimes and continues to suffer from a mental disorder predisposing him or her to further sex crimes, a 'substantial danger' is proven beyond any doubt." (Ghilotti, supra, 27 Cal.4th at p. 932 (conc. opn. by Werdegar, J.).) The majority considered and expressly rejected Justice Werdegar's criticism of its interpretation, stating: "[W]e disagree with Justice Werdegar's underlying premise. Contrary to her assumption, it is not incongruous to require a unanimous jury to be convinced beyond reasonable doubt that one (1) previously was convicted of qualifying violent sex crimes, (2) has a mental disorder which seriously impairs volitional control of violent sexual impulses, and (3) as a result of the disorder, presents a serious and well-founded risk of committing new acts of criminal sexual violence." (Id. at p. 924, fn. 15.)
In People v. Roberge (2003) 29 Cal.4th 979, the Supreme Court held that the definition of "likely" adopted in Ghilotti also "applies at trial, where the trier of fact decides whether the convicted sex offender, after serving the requisite prison term, is to be involuntarily committed." (Roberge, at p. 982.) Justice Werdegar joined in the Roberge opinion. Accordingly, we reject Atualevao's argument that the definition of "likely" provided this jury undermined the reasonable doubt standard. In addition, we note that the jury would have had to disregard the instructions as a whole which emphasized that the People must prove every element of the charge beyond a reasonable doubt in order arrive at Atualevao's interpretation of the instruction. We find no reasonable possibility the jury would have taken the word "well-founded," which along with "serious" and "substantial" describe the likelihood of the risk of reoffense, and apply it to the People's burden of proof. No error appears.
Due Process, Ex Post Facto, and Double Jeopardy
Atualevao contends the indeterminate commitment prescribed by the SVPA violates due process and the ex post facto clause. He acknowledges our Supreme Court has rejected those arguments in People v. McKee (2010) 47 Cal.4th 1172, 1188-1195 (McKee I.). As an intermediate appellate court, we are bound by those rulings. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Atualevao contends the Supreme Court has not ruled on his double jeopardy claim. However, in rejecting the ex post facto claim, the court ruled that the amended SVPA was not punitive. (McKee I, supra, 47 Cal.4th at p. 1195.) That ruling, which binds us, forecloses Atualevao's double jeopardy claim as well.
Indeterminate Commitment
Atualevao contends the indeterminate commitment prescribed by the amended SVPA violates equal protection. In McKee I our Supreme Court found that the amended SVPA was potentially unconstitutional in that similarly situated involuntary committees under other statutory commitment regimes are not treated the same way as SVP's with regard to commitment terms and burdens of proof for release. (McKee I, supra, 47 Cal.4th at pp. 1203, 1207.) The court remanded that case for an evidentiary hearing to allow the People an opportunity to justify the disparate treatment.
Following its decision in McKee I, the Supreme Court entered identical minute orders in each of the similar SVP appeals in which the court had issued grant-and-hold orders, remanding the cases and directing a suspension of proceedings pending further proceedings in McKee. An example is the following order from People v. Riffey (S164711, May 20, 2010):
"The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its decision and to reconsider the cause in light of [McKee I ]. (Cal. Rules of Court, rule 8.528(d).) In order to avoid an unnecessary multiplicity of proceedings, the court is additionally directed to suspend further proceedings pending finality of the proceedings on remand in McKee (see McKee [I], supra, 47 Cal.4th at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. 'Finality of the proceedings' shall include the finality of any subsequent appeal and any proceedings in this court."
Upon remand in McKee I, the trial court held a 21-day evidentiary hearing on the constitutional justification for the disparate treatment of SVP's and concluded the People had met their burden by presenting evidence to "support a reasonable perception by the electorate that SVP's present a substantially greater danger to society than do [mentally disordered offenders (MDO's)] or [persons found not guilty by reason of insanity (NGI's)]." (See People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II).) The evidence demonstrated that SVP's pose a higher risk of reoffending than MDO's or NGI's (id. at pp. 1340-1342), victims of sexual offenses suffer greater trauma than victims of other offenses due to the intrusiveness and enduring psychological, physiological, social and neuropsychological impacts of sexual assault or abuse (id. at pp. 1342-1344), and SVP's have significantly different diagnoses, treatment plans, motivations, degree or extent of compliance with treatment directives, and success rates than MDO's and NGI's (id. at pp. 1344-1347). The trial court concluded the evidence supported a reasonable inference that an indeterminate, rather than a determinate (e.g., two-year), term of civil commitment improves, rather than detracts from, the success of treatment plans for SVP's. (Id. at p. 1347.)
In McKee II, the Court of Appeal affirmed the trial court's decision and upheld the indeterminate commitment, finding that the disparate treatment of SVP's, as contrasted with MDO's and NGI's, was warranted because of the greater trauma suffered by victims of sexually violent offenses, the greater likelihood of recidivism by SVP's, and the diagnostic and treatment differences between SVP's and MDO's/NGI's. (McKee II, supra, 207 Cal.App.4th at p. 1347.) In October 2012, our Supreme Court denied a petition for review in McKee II (McKee II, supra, 207 Cal.App.4th 1325, review den. Oct. 10, 2012), and for our purposes the McKee proceedings are now final. Neither Atualevao nor the People have submitted supplemental briefing regarding the proper disposition of this appeal.
We concur with the reasoning and holding in McKee II. Moreover, we conclude the Supreme Court's direction in the orders of remand to "avoid an unnecessary multiplicity of proceedings" indicated the court's intention that the proceedings in McKee would resolve the issue as a matter of law for all SVP's, not merely for the defendant in that case alone or for SVP's convicted of crimes against children, like him. In light of the Supreme Court's denial of review in McKee II, we conclude that Atualevao's recommitment under the SVPA does not violate his equal protection rights. (See People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.)
DISPOSITION
The order for commitment finding Atualevao to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the State Department of Mental Health is affirmed.
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Marchiano, P.J.
We concur: _________________
Margulies, J.
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Dondero, J.