Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 93F2982
BLEASE, Acting P. J.
Defendant John Benton Curtis appeals from the order of recommitment to the Department of Mental Health (Department) as a sexually violent predator (SVP) following a jury trial. (Welf. & Inst. Code, § 6600 et seq.)
All further section references are to the Welfare and Institutions Code unless otherwise specified.
He challenges his recommitment on grounds (1) the psychiatric evaluations conducted as prerequisites to the filing of the petition are invalid because the Department failed to comply with the Administrative Procedure Act (APA) (Gov. Code, § 11340.5, subd. (a)) when it promulgated the standard assessment protocol used to conduct the evaluations and (2) the trial court failed to instruct sua sponte on the issue whether defendant has serious difficulty controlling his sexual behavior.
We find no error requiring reversal and shall affirm the order of commitment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, defendant was convicted of two counts of committing a lewd and lascivious act with a minor under the age of 14 years (Pen. Code, § 288, subd. (a)) and was sentenced to a prison term of 20 years. Upon his scheduled release from prison in 2005, he was found to be an SVP and committed for two years to the Department under the Sexually Violent Predator Act (SVPA).
Defendant’s 20-year prison term was based in part on an additional 10 years for two prior serious felony convictions.
On February 26, 2007, a petition for recommitment was filed and the court found probable cause existed to believe he is “likely to engage in sexually violent predatory criminal behavior upon his release . . . .” (§ 6602.)
The matter proceeded to a jury trial where the prosecution relied on documentary evidence and the testimony of psychiatrist Dr. Mohan Nair. Dr. Nair testified that defendant refused to be interviewed by Dr. Nair, so he based his evaluation on defendant’s records.
According to Dr. Nair, defendant committed three qualifying offenses, one in 1977, when defendant was 22 years old and he orally copulated a 13-year-old boy, a second in 1986 when he molested and orally copulated a three-year-old boy, and a third in 1993 when he fondled and orally copulated a six-year-old boy. Defendant committed his first sexual offense when he was 14 years old and admitted committing repeated sexual acts with children from that time on. He has also admitted having strong sexual fantasies and urges towards children knowing these were wrong.
Defendant suffers from pedophilia, a life-long mental disorder that predisposes him to have persistent sexual urges, fantasies, and behaviors towards prepubescent children that has been present for longer than six months and is not the result of some other mental disorder. Defendant’s history indicates that within a very short period following his release from prison or a locked hospital he molested little children.
Dr. Nair used several actuarial tests to determine whether defendant is likely to reoffend and found, based on his test scores, he falls into the high-risk group for reoffending. Dr. Nair opined that defendant is a sexually violent predator and that there is a substantial and well-founded likelihood defendant will be unable to control his sexual urges towards children and will reoffend if released into the community.
Defendant exhibited many high risk factors including poor performance in treatment and failure to complete a sexual offender treatment program, molesting more than two victims under the age of 12 who are unrelated to him, childhood maladjustment resulting in removal from his home, several commitments to a state hospital beginning when he was 14 years of age, the absence of any stable employment history, his inability to maintain a stable intimate partner, his emotional identification with children, his lack of remorse and concern for others, the fact he blames the victim for the assault and does not believe he is to blame, and the inability to control himself even under supervised release.
Dr. Nair explained that predatory sexual behavior involves sexual assault on a stranger or person whose relationship with the defendant was created for the purpose of sexual victimization.
The jury found defendant was an SVP and the court committed him to the Department for appropriate treatment and confinement for an indeterminate term. (§ 6604.)
DISCUSSION
I.
Psychiatric Evaluations
Defendant contends his commitment must be reversed because the petition was not supported by valid psychiatric evaluations in as much as they were prepared in accordance with a protocol that was not adopted as a regulation under the APA as required by Government Code section 11340.5, subdivision (a). Respondent argues this claim has no merit because it does not undermine the legitimacy of his commitment, defendant has failed to exhaust his administrative remedies, and the protocol does not qualify as a regulation.
We need not reach the merits of defendant’s claim because this claim does not undermine the reliability or validity of defendant’s commitment.
A. Overview of the Relevant Provisions of the SVPA
The SVPA provides for the involuntary civil commitment of certain offenders who are found to be sexually violent predators. (§ 6600 et seq.; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902.) To establish that an offender is an SVP, the prosecution must prove the person (1) has been convicted of one or more of the enumerated sexually violent offenses against one or more victims and (2) 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), 6604.)
The person’s initial commitment under the SVPA follows his completion of a prison term (§ 6601, subd. (a); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145) and the process takes place in several stages, both administrative and judicial. The inmate’s records are first screened by prison officials (§ 6601, subd. (b)), who may refer the inmate to the Department for a full evaluation as to whether he or she meets the criteria for commitment of an SVP under section 6600. (§ 6601, subds. (d), (h), (i).)
Department evaluators are required to evaluate the person in accordance with a standardized assessment protocol, developed and updated by the Department, to determine whether the person is an SVP. The protocol must “require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).)
The Department’s evaluation must be conducted by two practicing psychiatrists or psychologists or one practicing psychiatrist and one practicing psychologist designated by the Director of the Department. If the Department’s evaluators concur that the person has a diagnosed mental disorder so that he is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director must forward a request for a commitment petition to the county where the offender was convicted. (§ 6601, subd. (d).)
If the county’s legal counsel concurs with the Director’s recommendation, a petition for civil commitment is filed in the superior court (§ 6601, subd. (i)) and a judicial hearing is held to determine whether there is probable cause to believe the alleged SVP is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the court determines probable cause exists, it must order that a jury trial be held. (§§ 6602, subd. (a), 6603, subd. (a).)
At trial, the state has the burden of proving “beyond a reasonable doubt” that the person is an SVP. (§§ 6604.) The person has several rights including the rights to the assistance of counsel, to retain experts or professional persons to perform an examination on his or her behalf, to have access to all relevant medical and psychological records and reports, to demand a jury trial, and to a unanimous verdict. (§ 6603, subds. (a), (b), (f).) If the individual was found to be an SVP prior to November 8, 2006, he was committed for two years to the custody of the Department for appropriate treatment and confinement in a secure facility designated by the Director. (Former § 6604, Stats. 2000, ch. 420, § 3.)
Effective November 8, 2006, the SVPA was amended by Proposition 83, an initiative measure that changed the commitment from a two-year renewable term to an indefinite term of commitment. (§§ 6604.) It therefore eliminated the requirement for recommitment proceedings every two years. (§ 6604.)
At the end of the two-year commitment, the person must be discharged unless a subsequent petition for extended commitment is filed and found true after a full hearing at which the SVP is entitled to the same rights afforded at the initial commitment hearing. (Former §§ 6604 and 6604.1; Stats. 2000, ch. 420, § 3.) However, before a new petition for recommitment could be filed, a “full evaluation" of the person must be conducted by two practicing psychiatrists or psychologists designated by the Director or one such psychiatrist and psychologist. (§ 6601, subd. (d); Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1182.)
B. Defendant’s Probable Cause Hearing
At the beginning of 2007, two recommitment evaluation reports were prepared and a petition for recommitment was filed. A probable cause hearing was held at which time defendant agreed to submit the matter on the reports of the Department’s two evaluators without objection to their reports. The trial court found probable cause and ordered that a trial be held.
Just before trial, defendant filed an in limine motion to dismiss the petition asserting that the evaluations, which are a prerequisite to filing a petition, are invalid for the same reasons raised on appeal. The court denied the motion and the matter proceeded to trial.
C. Analysis
The psychiatric evaluations prepared prior to the filing of a petition under the SVPA do not affect disposition of the merits of the petition but serve only as a procedural safeguard to prevent meritless petitions from reaching trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063; People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.) Once the petition is filed, a new round of proceedings is triggered. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1146.)
The statutory scheme does not require the People to prove the existence of such evaluations at either the probable cause hearing or at trial. (Preciado, supra, 87 Cal.App.4th at p. 1130.) Once the petition is filed, the People need only prove the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. (Ibid.)
Similarly, the sole purpose of the probable cause hearing under the SVPA (§ 6602) is to weed out groundless petitions by testing the sufficiency of the evidence to support the SVPA petition. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235, 247 (Cooley); People v. Hayes (2006) 137 Cal.App.4th 34, 43-44 (Hayes).) The hearing is analogous to a preliminary hearing in a criminal case. (Cooley, supra, 29 Cal.4th at p. 247.) It is an adversarial hearing (People v. Munoz (2005) 129 Cal.App.4th 421, 429) where the judge conducting the hearing must review all necessary elements of an SVP determination and conclude there is probable cause as to each element. (Cooley, supra, 29 Cal.4th at pp. 246–247.) Once that determination is made, the matter proceeds to trial (Hayes, supra, 137 Cal.App.4th at p. 44) where the prosecution has the burden of proving beyond a reasonable doubt that the alleged person is an SVP and as stated, the person has the right to court appointed counsel, the right to retain experts and access relevant psychological and medical reports, and the right to a unanimous verdict. (§§ 6603, subds. (a), (b), (e), (f), 6604.)
Consequently, challenges to a probable cause finding in an SVP proceeding are handled in the same manner as challenges to a preliminary hearing finding in a criminal case. (Hayes, supra, 137 Cal.App.4th at p. 51.) Irregularities are not considered jurisdictional (People v. Talhelm (2000) 85 Cal.App.4th 400, 405) and reversal is required only if the defendant can show he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. (Hayes, supra, 137 Cal.App.4th at p. 50, relying on People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529–530.)
Here defendant does not challenge the sufficiency of the evidence at the probable cause hearing or at trial. Therefore, because the evaluations serve only to prevent meritless petitions from reaching trial (People v. Scott, supra, 100 Cal.App.4th at p. 1063; Preciado, supra, 87 Cal.App.4th at p. 130) and a trial was held where a unanimous jury found beyond a reasonable doubt that defendant is an SVP, he has failed to establish any prejudice. Accordingly, his claim fails.
II.
There Was No Sua Sponte Duty To Instruct On Controlling Behavior
Defendant contends the trial court committed reversible error by failing to instruct the jury sua sponte on the concept of “serious difficulty in controlling behavior” because there is substantial evidence to support an inference that he does not have serious difficulty controlling his sexual behavior. He acknowledges that the court in People v. Williams (2003) 31 Cal.4th 757 (Williams) found the standard SVP instruction adequately conveys the idea of control, but urges us to consider Justice Kennard’s concurring opinion in Williams. We cannot do so because we are bound to follow the majority opinion in Williams. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
A trial court’s sua sponte duty to instruct the jury is limited to “the general principles of law relevant to and governing the case." (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) Here, the trial court instructed the jury in accordance with CAL CRIM No. 3454, the standard jury instruction defining an SVP.
In Williams, supra, 31 Cal.4th 757, the court rejected the defendant’s claim that the constitution requires a separate “‘control’ instruction” which informs the jury that commitment requires a finding the defendant has serious difficulty controlling his sexual behavior. (Id. at p. 759.) The court found instructions that tracked the statutory language were sufficient because “the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling one’s criminal sexual violence . . . .” (Id. at p. 777.)
Likewise, in Hubbart, supra, 19 Cal.4th at page 1158, the court decided that the SVPA satisfied due process because it “establishes the requisite connection between impaired volitional control and the danger posed to the public” by defining “an SVP as a person who has committed sexually violent crimes and who currently suffers from ‘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.] Through this language, the SVPA plainly requires a finding of dangerousness. The statute then ‘links that finding’ to a currently diagnosed mental disorder characterized by the inability to control dangerous sexual behavior. [Citation.]” (Fn. omitted.)
The standard jury instruction given by the trial court in this case also tracks the statutory language. It therefore satisfied the trial court’s sua sponte duty to instruct in accordance with the general principles of law and in the absence of a request for further instruction, had no further duty to instruct the jury. We therefore reject this claim of error.
The court in In re Howard N. (2005) 35 Cal.4th 117, 137-138 reached a different result. The court held that failure to give a specific “control” instruction in a commitment proceeding under section 1800 governing extended detentions for dangerous persons was reversible error where there was little evidence the defendant’s mental abnormality caused him serious difficulty controlling his dangerous behavior.
DISPOSITION
The order of commitment is affirmed.
We concur: HULL, J., ROBIE, J.
Defendant had two factors in his favor, his age (he is in his 50’s) and the fact he is not presently demonstrating sexual preoccupation.
Here however, as detailed in the Factual Statement, Dr. Nair testified that defendant suffers from pedophilia, a mental disorder characterized by a life-long predisposition to have persistent sexual urges, fantasies, and behaviors towards children and he has demonstrated a lack of volitional control by his inability to control his sexual behavior towards young boys despite his knowledge that his behavior is wrong and he has been repeatedly incarcerated and punished for it. His history since the age of 14 years shows a pattern of committing new sex crimes within a very short period of time after being released from state hospitals or prisons. He was found to be a mentally disordered sex offender and spent time at Stockton State Hospital, Napa State Hospital, and Atascadero State Hospital. At Atascadero, his performance was considered poor and he engaged in activities, such as cutting out pictures of little boys from magazines, which indicated a continuation of his sexual fantasies. Additional high risk factors that make it likely he will reoffend include his polysubstance abuse, having an antisocial personality disorder, and possible mild mental retardation. Actuarial tools uniformly predicted that he has a “moderately high” to “high” likelihood of reoffending.