Opinion
For Opinion on Hearing, see 121 Cal.Rptr. 540, 535 P.2d 404.
Opinion on pages 317-325 omitted.
HEARING GRANTED
[105 Cal.Rptr. 557]Thomas C. Lynch, and Evelle J. Younger, Attys. Gen. by Arnold Overoye and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
Roger L. Gambatese, Davis, for defendant and appellant.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
On August 29, 1967, defendant pleaded guilty in the municipal court to a violation of former subdivision (1) of Penal Code section 647a (molesting a child under the age of 18), a first offense, and therefore under that section was guilty of a misdemeanor.
On October 3, 1967, the municipal court of its own motion, having decided that there was probable cause for believing that defendant was a mentally disordered sex offender within the meaning of Welfare and Institutions Code section 6300, certified him to the superior court for hearing and examination to determine whether he was such a sex offender.
All code citations unless otherwise specified are to the Welfare and Institutions Code. The article defining and describing the disposition of such offender, formerly codified as Welfare and Institutions Code sections 5500-5522, was recodified as Welfare and Institutions Code sections 6300-6330 operative July 1, 1969. All of the facts relevant here occurred after the recodification operative July 1, 1969 but before the 1970 amendments. Therefore we cite the Welfare and Institutions Code as it existed during that period.
From approximately October 1967 to February 1970 defendant was an out-of-state fugitive.
On March 26, 1970, after a contested hearing, the superior court found there was sufficient cause to believe defendant was a mentally disordered sex offender and committed him to Atascadero State Hospital for observation and diagnosis for a maximum period of 90 days. (§§ 6305, 6307-6309, 6312, 6314, 6316.) Defendant's stay was less than the maximum period. The medical director of that hospital reported to the court that, in his opinion, defendant was a mentally disordered sex offender who would not benefit by care or treatment in a state hospital and was a danger to the health and safety of others. Accordingly, on June 9, 1970, the court ordered defendant returned to the municipal court. (§ 6316.) On September 2, 1970, the municipal court recertified defendant to the superior court. On October 23, 1970, after a further hearing, the latter court made the same finding as that previously made by the medical director. The superior court then ordered defendant committed for an indefinite period to the Department of Mental Hygiene. (§ 6316.) Defendant made a timely demand for a trial by jury of the question whether he was a mentally disordered sex offender. (§ 6318.) On November 9, 1970, the trial proceeded to verdict.
The 1970 amendment of section 6316 (Stats.1970, ch. 685, § 3) eliminated a fixed placement in a state hospital and substituted a placement for 'an indefinite period.'
In conformity with section 6321 the superior court instructed the twelve jurors that it was the People's burden to prove by a preponderance of the evidence that defendant was a mentally disordered sex offender and that the agreement of nine jurors was required to reach a verdict. The jury, by a vote of 10 to 2, found defendant to be a mentally disordered sex offender. He appeals from an order committing him to the Department of Mental Hygiene for an indeterminate period. This court will affirm the order.
THE LAW APPLICABLE.
The statutory law of California provides in section 6321:
'The trial shall be had as provided by law for the trial of civil causes, and if tried before a jury the person shall be discharged unless a verdict that he is a mentally disordered sex offender is found by [105 Cal.Rptr. 558] at least three-fourths of the jury. If the judge adjudges or the verdict of the jury is that he is a mentally disordered sex offender the judge shall adjudge that fact and make an order similar to the original order for commitment to the department for placement in a state hospital. . . .' It follows--as a matter of both California statutory and case law--that the burden of proof which the trial court imposed upon the People was correct. It was to convince the jury, or more accurately three-fourths of it, by a preponderance of the evidence, that defendant was a mentally disordered sex offender. (Evid.Code, § 115; Sierra Nat. Bank v. Brown (1971) 18 Cal.App.2d 98, 105, 95 Cal.Rptr. 742.) Unless defendant can convince this court that there is some constitutional defect in the law, the instruction given by the trial judge was correct.
The contention first made is that the superior court commitment proceedings outlined above violate due process. The principal authority relied upon is In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. That decision involved a 12-year-old boy who had entered a locker and stolen $112 from a women's pocketbook. The proceeding being reviewed by the United States Supreme Court was one brought under the New York Family Court Act, and the question was whether the boy should be declared a juvenile delinquent and committed. The judge of the juvenile court acknowledged that the proof might not establish guilt beyond a reasonable doubt but rejected the juvenile's contention that such proof was required by the Fourteenth Amendment. He followed instead a section of the New York Act which authorized a dispositional hearing (and placement in a training school for an initial period of 18 months subject to specified annual extensions) after a hearing 'based on a preponderance of the evidence.' There was no criminal trial before the commitment proceedings. The juvenile court ordered the commitment. The commitment was approved by the New York Court of Appeals. The U.S. Supreme Court reversed.
The majority of the high court said (in a five-to-two decision) on page 361 of 397 U.S., on page 1071 of 90 S.Ct., that from the earliest days of our nation the demand for a higher degree of persuasion which generally crystallized into the formula as proof 'beyond a reasonable doubt' has been 'the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt' in a criminal action. And the rule is enunciated that 'the due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'
The applicability of these rules when applied to criminal proceedings involving adults cannot be doubted. In re Winship, supra, applied them to proceedings adjudging juveniles delinquent for guilt of crimes. Defendant equates a juvenile with a mentally disturbed sex offender.
Much of the basic philosophy of Winship, supra, and the conclusions reached therein are drawn from In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. That earlier case expressly declines to embrace all due process-equal protection precepts it may have been requested to adopt. Gault, supra, states at page 13 of 387 U.S., at page 1436, of 87 S.Ct.: 'We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile 'delinquents.' For example, we are not here concerned with the procedures or constitutional rights applicable to the prejudicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process. See note 48, infra. We consider only the problems presented to us by this case. . . .' (Our italics.) It has not been suggested to us that Winship extends beyond Gault--merely that it holds the Gault rule applies at the adjudicatory stage of determination of juvenile delinquency.
Before we examine the equation defendant proposes, we note differences in [105 Cal.Rptr. 559] facts. Here (1) defendant Bonneville, so far as the record discloses, was never at any stage of the proceedings, a juvenile; (2) as we have heretofore mentioned, he had already been arraigned once for the criminal offense upon which his status as a mentally disordered sex offender depends; and he pleaded guilty. That plea is the equivalent to trial (a) by a jury of twelve persons, (b) selected from a cross-section of the community (c) which jury agrees unanimously (d) with the People having sustained the burden of (e) establishing beyond a reasonable doubt that said defendant was guilty of all elements of (a lesser offense than) the offense for which he was on trial, to wit: molesting a child under 18.
There is no contention that the plea of guilty made in the original proceedings under Penal Code section 647 a was in any respect irregular or improper or that the section itself is invalid. Compare this case with In re Bevill (1968) 68 Cal.2d 854, 863, 69 Cal.Rptr. 599, 442 P.2d 679. It is noteworthy that the cited case states on page 858, on page 601 of 69 Cal.Rptr., on page 681 of 442 P.2d: '. . . [P]roceedings for commitment are civil in nature and are collateral to the criminal proceedings. (Citation.) A person committed as a mentally disordered sex offender is not confined for the criminal offense but because of his status as a mentally disordered sex offender. (Citation.) The confinement is pursuant to a law the primary purpose of which is protection of society.'
In the course of this court's inquiry as to a possible similarity between Winship and this case we have sought to express the meaning of 'due process' as it may apply in this type of case and its application to the decisional problem involved. Winship was followed in the U.S. Supreme Court over a year later by McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647. (The latter case also involved juvenile commitments.) It too was a divided opinion in which the court split several ways. But there was no dispute between the members of the court in their understanding of the meaning of constitutional due process. As stated by Mr. Justice Brennan in his partially concurring, partially dissenting opinion (on p. 554 of 403 U.S., on page 1990, of 91 S.Ct.): 'The Due Process Clause commands not a particular procedure, but only a result; in my Brother Blackmun's words, 'fundamental fairness . . .'.'
The problems treated in McKeiver, supra, had previously been analyzed by our own California Supreme Court in In re Dennis M. (1969) 70 Cal.2d 444, 75 Cal.Rptr. 1, 450 P.2d 296 (again involving the commitment of a juvenile). The court states as a prelude to the conclusion:
'Such deliberate acts of the Legislature come before us clothed with a presumption of constitutionality. 'All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears. [Citations.]' (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21, 23, 166 A.L.R. 701; accord, State of California, Subsequent Injuries Fund v. Ind. Acc. Comm. (1957) 48 Cal.2d 365, 371, 310 P.2d 7; In re Davis (1966) 242 Cal.App.2d 645, 651, 51 Cal.Rptr. 702.) No such showing is here made with regard to the statutory standard of proof in juvenile matters.' (Id., p. 453, 75 Cal.Rptr. p. 6, 450 P.2d p. 301.) The court concluded on this point:
'In the light of the foregoing analysis, we cannot conclude that the standard of proof provision of Welfare and Institutions Code, section 701 (ante, fn. 7) is 'clearly, positively and unmistakably' unconstitutional. (Lockheed Aircraft Corp. v. Superior Court (1946) supra, 28 Cal.2d 481, 484, 171 P.2d 21.) Accordingly, in the absence of a specific ruling on the issue by [504 P.2d 560] [105 Cal.Rptr. 560] the United States Supreme Court, we adhere to the pre-Gault view of our courts that the established standard is valid and 'No constitutional rights of the appellant have been infringed by the use of the preponderance of evidence test to determine the truth of the allegation that he had committed a crime.' (In re Johnson (1964) supra, 227 Cal.App.2d 37, 40, 38 Cal.Rptr. 405, 406.)
Such ruling was, of course, made in Winship, supra.
'On appeal, of course, the issue is of narrower scope. We 'cannot examine evidence to determine where the preponderance of the evidence lies. [Citations.] Our function is to determine whether the record contains any substantial evidence tending to support the finding of the trial court.' (In re Corey (1964) 230 Cal.App.2d 813, 823-824, 41 Cal.Rptr. 379, 385.) Such evidence is present in the case at bar.' (Id., p. 460, 75 Cal.Rptr. p. 10, 450 P.2d p. 305.)
In People v. Valdez (1968) 260 Cal.App.2d 895, 67 Cal.Rptr. 583, defendant was arrested as a narcotic addict and user. After a court hearing in which it was determined by the trial court that, under the statute in effect, the burden was upon the state to prove its case by a preponderance of evidence and not by proof sufficient beyond a reasonable doubt, an order was made committing defendant to California Rehabilitation Center at Corona.
On appeal the appellate court of the second district stated (on p. 902, on page 588 of 67 Cal.Rptr.): 'We think that the trial court applied the standard prescribed by the Legislature and that such standard meets the requirements of due process and equal protection.' It decided, as we have decided in the case at bench with reference to the statute applicable to mentally disordered sex offenders, that as far as the Legislative intent was concerned, proof at the trial on commitment was the same as 'provided by law for the trial for the mentally ill and that was the same as a civil trial before a jury--requiring a verdict of guilt by at least three-fourths of the jury.' This the Valdez court notes is also by a preponderance of the evidence. ( Id., p. 903, 67 Cal.Rptr. 583.)
The court then says (on p. 903, 67 Cal.Rptr. 588):
'Turning to due process, we may assume that in criminal cases it is part of the due process guaranteed by the Fourteenth Amendment that guilt must be established beyond a reasonable doubt.' (Fn. omitted.)
But the court also states, on page 903, 67 Cal.Rptr. 583, after citing many cases which we need not repeat here, that narcotic commitment proceedings have been regarded as 'civil,' 'non-punitive,' and 'remedial.' It adds on page 904, on page 589 of 67 Cal.Rptr.: 'A situation may well arise where such characterization may break down in the face of the reality the addict's involuntary confinement. (Cf. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.) We do not believe, however, that the distinction between confinement as a criminal and loss of liberty as an addict whom the state hopes to cure, insufficiently artificial to prohibit a difference in the burden of proof. It must be remembered that in a narcotic commitment case the jury is in reality asked to confirm what is essentially a medical diagnosis. The People's burden of persuasion ought to be no greater than the degree of assurance with which reputable physicians express themselves. (Bauman v. San Francisco, 42 Cal.App.2d 144, 163-165, 108 P.2d 989.)
'The equal protection point almost answers itself. Surely it cannot be successfully urged that the difference between a conviction for a crime and a commitment for treatment is so insubstantial that any classification based upon such difference is arbitrary and has no substantial relation to the legitimate object of the legislation. (Baxstrom v. Harold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 ; Katzev v. County of Los Angeles, 52 Cal.2d 360, 368-370, 341 P.2d 310.)'
[105 Cal.Rptr. 561]We have discussed in some detail the foregoing cases--In re Gault, supra, McKeiver v. Pennsylvania, supra, In re Dennis M., supra, and People v. Valdez, supra. First, because all of them seem to have points which dispute defendant's theories drawn from Winship, supra, which case we believe he has misinterpreted. Second, because, as we wish to stress, in not one case have we found that a court has been said to have denied a defendant his constitutional rights guaranteed by the Fourteenth Amendment, where prior to commitment proceedings, he has had a criminal trial or its equivalent.
While we have discussed the commitment proceedings we do not wish, under the facts of this case, to overemphasize their importance. The facts of the case at bench are far more compelling to require our affirmance.
(1) Of greatest importance is the fact that in the adjudication of guilt defendant was afforded every right the constitution provides.
(2) He was given every further right the law could reasonably be expected to afford to contest the fact that he was a mentally disordered sex offender. As a practical matter, proof of that fact is, as we have shown, a matter peculiarly within the expertise of psychiatrists--usually, at least, and it was so in the case at bench. The standard of their testimony after study and examination is 'reasonable medical testimony.' (See, fn. 2 of People v. Phillips (1966) 64 Cal.2d 574, 579, 51 Cal.Rptr. 225, 229, 414 P.2d 353, 357, where the court said): '. . . To hold that medical opinion fails as a matter of law to sustain a jury in reaching a conviction 'beyond a reasonable doubt,' because the testimony rests upon 'reasonable medical certainty,' would in substance foreclose the realistic use of medical testimony at criminal trials.' (Our italics.)
(3) He has been afforded every means to a cure the law affords.
(4) The machinery of the statutes offers periodic reappraisal in what we must deem to be a reasonable effort to insure that if and when a cure has been effected so that he is no longer a danger to society he will be released.
We are similarly satisfied that defendant's guaranty of equal protection of the law has not been violated. As a matter of fact, the classification is both reasonable and perhaps affords to the offender facing possible commitment as a mentally disordered sex offender greater benefits and more post-commitment rehabilitation benefits than some of the other classes we have discussed in this opinion.
The order appealed from is affirmed.
REGAN, Acting P. J., and JANES, J., concur.
Hearing granted; MOLINARI, J., sitting under assignment by the chairman of the Judicial Council.