Opinion
F041956.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. EMMETT EARL DODD, Defendant and Appellant.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Emmett Earl Dodd challenges the validity of his civil commitment as a sexually violent predator on the basis of instructional error and violation of equal protection. We will affirm the judgment.
PROCEDURAL AND FACTUAL SUMMARY
In April 2000, Dodd was civilly committed pursuant to the Sexually Violent Predators Act (SVP Act), Welfare and Institutions Code section 6600 et seq. While Dodd was confined at Atascadero State Hospital (ASH), a petition was filed to extend his commitment as a sexually violent predator. The probable cause hearing on the recommitment petition was held on July 26, 2002.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Trial on the recommitment petition commenced on November 12, 2002. The parties stipulated that Dodd previously had been convicted of at least two sexually violent offenses involving different victims.
Dr. Gabrielle Paladino, a staff psychiatrist at ASH, was Dodds treating psychiatrist from April 2000 to January 2001. Paladino prepared an evaluation of Dodd pursuant to section 6601 for the recommitment proceedings. In preparing the evaluation, Paladino reviewed probation and police reports, ASH records, and the initial evaluations prepared prior to Dodds first commitment as an SVP.
Evidence established that Dodd had a significant criminal history. Dodd was convicted of rape and assault with a deadly weapon in 1977 and incarcerated. He was released on parole in October 1980. In May 1981, Dodd was convicted of rape, attempted rape, assault with intent to commit rape, and three counts of first degree burglary. Dodd was incarcerated but released on parole in 1991. He violated parole and again was confined in state prison until July 29, 1991. In December 1991, Dodd was convicted of assault with intent to commit rape, false imprisonment, first degree burglary and misdemeanor assault.
Paladino stated that Dodd suffered from paraphilia, polysubstance dependence and antisocial personality disorder. Dodd appeared to be unable to have a consensual sexual relationship and had a history of alcohol, marijuana and LSD use. Paladino considered the paraphilia diagnosis very significant, considering Dodds criminal history of serial rapes in which he attacked single females with children present in the residences. In Paladinos opinion, Dodd is unable to control his urge for coercive sex and his volitional control is impaired. Paladino also concluded that Dodd was likely to engage in future predatory behavior.
Dr. Jesus Padilla, a clinical psychologist at ASH, also prepared an evaluation for Dodds recommitment. Padilla testified that Dodd had not participated in any sexual deviancy treatment while at ASH, had fought with another patient, and had been disciplined for making inappropriate remarks and brushing up against four female employees while confined at ASH.
Padilla also concluded that Dodd was suffering from paraphilia, substance abuse and antisocial personality disorder. Padilla stated that Dodds diagnosed mental disorders substantially affected his ability to control his volitional behavior and that Dodd was likely to reoffend.
Dr. Theodore Donaldson testified for the defense. Donaldson stated that Dodd was a psychopath with an antisocial personality disorder. Donaldson was of the opinion that Dodd did not suffer from paraphilia and that there was insufficient evidence to conclude Dodd had serious difficulty controlling his behavior. In Donaldsons opinion, Dodd was a recidivist criminal offender who did not care whether his actions harmed others, as opposed to a mentally disordered sex offender who had difficulty controlling his actions.
On November 14, 2002, the jury found that Dodd was a sexually violent predator. Dodds commitment was extended to April 4, 2004.
I. CALJIC No. 4.19
Dodd contends CALJIC No. 4.19 is constitutionally defective because it does not require the trier of fact to find that the offender is likely to commit future predatory sexual offenses. We disagree.
Section 6604 contains "an implied requirement that a trier of fact must find beyond a reasonable doubt that the defendant is likely to commit sexually violent predatory criminal acts before the defendant can be committed as a sexually violent predator." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186.) Prior to the issuance of the California Supreme Courts opinion in Hurtado, there was a conflict among the appellate courts. The 2002 version of CALJIC No. 4.19, therefore, provided the trial judge with bracketed language with which to instruct on the predatory element. (CALJIC No. 4.19 (2002 rev.) (6th ed. 1996).)
In Dodds case, the trial court instructed the jury with the 2002 revision of CALJIC No. 4.19, including a definition of the term "predatory," and language stating that a petition had been filed alleging that Dodd is a "sexually violent predator." The instruction further states that the prosecution has the burden of proving beyond a reasonable doubt that Dodd is a "sexually violent predator." The instruction concludes with a charge to the jury that it may not find Dodd to be a sexually violent predator without evidence of a current mental disorder that makes him likely to engage in "sexually violent [predatory] criminal behavior."
We think there was no instructional error. The fact that the word "predatory" appears in brackets in the instruction as given to the jury does not mean that the jury was not fully instructed on the predatory act requirement. Dodds case is factually distinguishable from Hurtado, where the jury did not receive any instruction on the predatory act requirement. (People v. Hurtado, supra, 28 Cal.4th at p. 1190.) Instructions are to be read as a whole. (People v. Smithey (1999) 20 Cal.4th 936, 987.) In Dodds case, the trial court did not redact the term "predatory" from the instruction. Reading the instruction as a whole, the jury was instructed adequately on the definition of "predatory" and the requirement that it find Dodd to be a sexually violent predator.
Furthermore, the California Supreme Court has held that the language of the SVP Act inherently and adequately conveys the crucial elements necessary to find that a person is a sexually violent predator. (People v. Williams (2003) 31 Cal.4th 757, 769.) The language of CALJIC No. 4.19, as given to the jury, tracks the language of the SVP Act. (Williams, at p. 763.)
Dodd also claims that CALJIC 4.19 is confusing or internally inconsistent because the term "predatory" is in brackets in the instruction, thereby indicating that the requirement is optional and can be disregarded by the jury. We disagree. Language in the instruction that the jury was to disregard was redacted, not bracketed. Moreover, if a defendant does not ask at trial that an instruction be clarified, he may not complain on appeal that an instruction is ambiguous or incomplete. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.) The trial court was under no obligation to issue a pinpoint, clarifying instruction in the absence of a request from Dodd. (People v. Garvin (2003) 110 Cal.App.4th 484, 488.)
Regardless, we conclude any error was harmless. Instructional error in failing to instruct the jury on the need to find a likelihood of future predatory acts is assessed pursuant to the harmless beyond a reasonable doubt standard. (People v. Hurtado, supra, 28 Cal.4th at p. 1194.)
Predatory acts are defined in section 6600, subdivision (e) as acts directed toward strangers, persons of casual acquaintance, and individuals with whom a relationship has been cultivated for purposes of victimization. The testimony established that Dodds paraphilia involved a predilection for sexual acts with nonconsenting adults. Dodd had a criminal history of illegally entering residences and raping single women. Dodd engaged in sexually violent behavior each time he was released from custody. Dodd had engaged in inappropriate behavior while civilly committed. Dodds prior rape convictions involved sexual activity with strangers, which means that his acts were predatory within the meaning of the SVP Act. (People v. Hurtado, supra, 28 Cal.4th at p. 1194.) There was virtually no evidence that Dodds mental disorder had or would manifest itself by victimizing persons other than strangers, casual acquaintances, or persons cultivated for the purpose of victimization. If the suggested error in the instruction were corrected, the result undoubtedly would have been the same. We therefore conclude that any instructional error was harmless beyond a reasonable doubt. (Ibid.)
II. Equal Protection
Dodd next argues that the SVP Act violates equal protection. Dodd acknowledges that published cases have rejected arguments identical to those he puts forth.
In order to establish a meritorious claim of violation of equal protection, Dodd first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (People v. Green (2000) 79 Cal.App.4th 921, 924.) With respect to similarly situated persons, equal protection applies to ensure that persons receive like treatment; equal protection does not require identical treatment. (Ibid.)
Dodd contends that the SVP Act violates equal protection compared to others who are subject to civil commitment. Dodd apparently contends he is similarly situated to those persons committed under the Mentally Disordered Sex Offenders Act (MDSO Act), or possibly the Lanterman-Petris-Short Act (LPS Act), but subject to disparate treatment because the SVP Act (1) requires a less exacting definition of mental disorder; (2) provides for less evidence justifying commitment; and (3) contains different treatment provisions.
We note that the MDSO Act was repealed in 1981. (Former § 6300 et seq., repealed by Stats. 1981, ch. 928, § 2, p. 3485.) Thus, the only extant civil commitment scheme for sexually violent predators in California is the SVP Act.
The LPS Act is found at section 5000 et seq.
Dodd contends that the SVP Act violates equal protection because the criteria for commitment, including the definition of mental disorder and the determination of dangerousness, are less exacting than the standards used in other civil commitment schemes. This contention has been addressed, and rejected, in both Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1168-1170 and People v. Buffington (1999) 74 Cal.App.4th 1149, 1156-1159. His contention that the SVP Act has reduced evidentiary standards that violate equal protection has been rejected by two appellate courts. (People v. Green, supra, 79 Cal.App.4th at pp. 925-927; People v. Buffington, supra, 74 Cal.App.4th at pp. 1159-1162.) Finally, the assertion that the treatment provisions of the SVP Act differ so as to violate equal protection also has been rejected. (People v. Buffington, supra, 74 Cal.App.4th at pp. 1162-1164.) Based upon the rationale and holdings of these cases, we reject Dodds argument that the SVP Act violates equal protection.
DISPOSITION
The judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.