Opinion
E031403.
10-14-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN GLENN CAMPBELL, Defendant and Appellant.
Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Quisteen S. Shum and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
1. Introduction
Kevin Glenn Campbell appeals a jury finding that he is a sexually violent predator (SVP) under Welfare and Institutions Code section 6600. He charges the court erred by giving jury instructions that did not require the jury to find Campbell (1) has "serious difficulty controlling his behavior due to his mental condition" and (2) is likely to engage in future acts of sexually violent predatory behavior. The core of Campbells defense is that, because he can control his behavior, he should only be punished criminally, not by civil commitment.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
We hold the jury instructions as given were not prejudicial error.
2. Factual and Procedural Background
In 1997, the district attorneys office filed a petition to commit Campbell as an SVP. Campbells qualifying offenses were two rape convictions, one in 1983, involving a 15-year-old girl, and another in 1991. During both attacks he used a knife and, in addition to raping the victims, he forced them to copulate him orally. The first SVP trial ended in a mistrial in 2000. At the second trial in March 2002, a jury found Campbell was an SVP.
Three psychologists for the prosecution testified Campbell manifested paraphilia and personality disorders and was likely to reoffend.
Campbell testified that surgery for a malignant parotid tumor has paralyzed half his face. He has a 60 percent chance of living another 10 years. His experience with cancer has made him reconsider his life. He admitted committing his crimes voluntarily.
The two defense experts testified Campbell had little or no difficulty controlling his behavior and he was not likely to reoffend.
3. Serious Difficulty Controlling Behavior
At trial, the court instructed the jury that, in order to commit Campbell as an SVP, the People had to prove "beyond a reasonable doubt that the Respondent is a sexually violent predator." The court refused to give an instruction requiring an independent finding that Campbell has serious difficulty in controlling his behavior.
As conceded by the parties at oral argument, the issue of whether CALJIC No. 4.19 adequately instructs on the need for a finding of "serious difficulty in controlling behavior" has been decided by the California Supreme Court. We therefore reject defendants arguments on this issue.
People v. Williams (2003) 31 Cal.4th 757.
4. Likely To Engage in Sexually Violent Predatory Behavior
Because this case preceded People v. Hurtado, the jury was not correctly instructed it had to find Campbell was likely to engage in sexually violent predatory behavior. In Hurtado, the California Supreme Court observes section 6600, subdivision (e), defines predatory behavior as that directed against a stranger, a casual acquaintance, or a person targeted as a victim. The high court has also explained the phrase "likely that he or she will engage in sexually violent criminal behavior" incorporates within its meaning sexually violent predatory behavior. As stated in People v. Roberge: "Not all of the[] dictionary definitions of `likely are consistent with the particular and technical meaning the SVPA assigns that term: the person charged as a sexually violent predator poses a substantial danger, that is, a serious and well-founded risk, of committing a sexually violent predatory crime if released from custody."
People v. Hurtado (2002) 28 Cal.4th 1179.
People v. Hurtado, supra, 28 Cal.4th at page 1182.
Section 6600, subdivision (a)(1).
People v. Roberge (2003) 29 Cal.4th 979, 988-989, italics added.
Had the trial court possessed the necessary foreknowledge of the Supreme Court decisions, that is how it might have instructed the jury. But, even if the jury instruction was wrong, it was not prejudicial.
People v. Roberge, supra, 29 Cal.4th at page 989.
At the probable cause hearing, not at trial, the superior court decides whether sexually violent criminal behavior is predatory, i.e., directed against a stranger, a casual acquaintance, or a target. The evidence at the probable cause hearing showed Campbells modus operandi is to attack strangers. The psychologists evaluated Campbell and determined he met the criteria of a "sexually violent predator" who had committed "predatory sexually violent crimes" and would commit similar crimes again. Campbell is incorrect in his assertion that the record does not contain evidence regarding whether appellant is likely to engage in "future sexually violent predatory behavior." The record is replete with such evidence.
People v. Hurtado, supra, 28 Cal.4th at page 1183.
Section 6600, subdivision (e).
Because predatory behavior was established at the probable cause hearing, we can conclude beyond a reasonable doubt Campbell did not suffer prejudice from the challenged jury instruction.
People v. Roberge, supra, 29 Cal.4th at page 989.
5. Disposition
We affirm the judgment.
We concur: Ramirez, P.J. and Richli, J.