Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 18297C
SCOTLAND, P. J.
Defendant David Griffin appeals from an order (judgment) committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.) Finding no prejudicial error, we will affirm the judgment.
FACTS
The prosecution presented expert testimony of two licensed clinical psychologists, Dr. Robert Owen and Dr. Craig Updegrove, who had interviewed defendant and examined his medical and legal files. Both concluded defendant met the criteria for commitment as an SVP for the following reasons.
Defendant met the first criterion, having been convicted of committing a sexually violent offense against one or more victims. In 1987, he was convicted of committing a lewd act against a six-year-old girl by fondling her genitalia and penetrating her vagina with his finger. (Pen. Code, § 288, subd. (a).)
Dr. Owen diagnosed defendant with pedophilia with a primary attraction to prepubescent females, and schizoid personality disorder. Dr. Updegrove diagnosed defendant with pedophilia, fetishism, and voyeurism.
Defendant’s criminal history including and after his 1987 crime showed his preoccupation with sex focused primarily on children. In 1998, he was caught naked and masturbating while peeking through a fence at neighborhood children. Police then discovered defendant was in possession of sex toys, child pornography, 748 pornographic magazines, and candid photographs of children unaware of their photographs being taken. Defendant also had what appeared to be a police badge, an item used by some molesters to gain a child’s trust. In 2004, while on parole, he was caught masturbating to pornography in a local cemetery after putting panties on a casket liner. He also looked at the graves of little children, which he claimed was not part of his sexual fantasy. After his arrest, defendant admitted he would have sex with a child if left alone with one. To look at the underwear of little girls, he went to places where children would congregate. He detailed these incidents in a journal he would use to masturbate. One entry noted defendant would like to get a little girl alone so he could play with her.
In assessing whether defendant would reoffend, both doctors applied the Static-99, an actuarial assessment tool approved by DMH for that purpose. They opined that defendant was at a high risk for reoffending and that he was likely to commit a “hands-on” offense similar to his crime of fondling a six-year-old girl’s genitalia and penetrating her vagina with his finger.
During his own testimony, defendant recognized that he needed help, but said he could pay for treatment on his own. He believed that the one strike law was sufficient incentive to keep him from reoffending.
Two experts testified for the defense. Dr. Theodore Donaldson, a clinical psychologist, opined defendant was outside the actuarial framework of the Static-99 and was at a low risk of reoffending. Clinical psychologist Dr. Raymond Anderson did not believe in the diagnosis of pedophilia as defined by the diagnosis and statistical manual and rejected the Static-99 for predicting sexually violent behavior. He opined defendant was at a low risk of reoffending.
DISCUSSION
I
An SVP is “a person 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).)
The SVPA provides for the involuntary civil commitment of an SVP who is likely to continue engaging in sexually violent behavior after his release from prison. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144.) The person’s commitment under the SVPA follows the completion of a prison term. (§ 6601, subd. (a).)
The process takes place in several stages, both administrative and judicial. First, the inmate’s records are screened by prison officials, who may refer the inmate to DMH for full evaluation as to whether the inmate meets the criteria for commitment of an SVP under section 6600. (§ 6601, subd. (b).) DMH must evaluate the inmate in accordance with a “standardized assessment protocol, developed and updated by the [DMH],” to determine whether the person is an SVP. (§ 6601, subd. (c).) DMH’s evaluation must be conducted by two professionals. (§ 6601, subd. (d).) If they agree the person is an SVP, the director of DMH must ask the county to file a petition for commitment. (§ 6601, subds. (d) & (h).)
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 that the alleged SVP is likely to engage in sexually violent predatory criminal behavior upon 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 SVP scheme affords numerous rights to the individual, including the right to assistance of counsel, the right to retain experts, and access to medical and psychological reports. (§ 6603, subd. (a).)
The SVPA originally provided for a two-year civil commitment of any person found beyond a reasonable doubt to be an SVP. (People v. Williams (2003) 31 Cal.4th 757, 764.) Upon expiration of the two-year term, the commitment could be extended only if the government again established in a jury trial, beyond a reasonable doubt, that the person remained an SVP. (People v. Shields (2007) 155 Cal.App.4th 559, 562.)
In 2006, the SVPA was amended to provide for an indeterminate term of commitment as an SVP. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) Thus, the government no longer has to prove at regular intervals that the offender remains an SVP. Instead, the DMH must examine the person’s mental condition at least once every year and must report on whether the person remains an SVP. (§ 6605, subd. (a).)
If the DMH determines the person is no longer an SVP, the director must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).) If, after considering such a petition, the court finds probable cause to believe the person is no longer an SVP, the court must conduct a hearing, at which the government must prove beyond a reasonable doubt that the person is still an SVP. (Id., subds. (c) & (d).) If the government meets this burden, the offender is again committed for an indeterminate term. (Id., subd. (e).) If the government does not meet its burden, the person must be discharged. (Ibid.)
The only other possibility for release from confinement under the amended SVPA is a petition pursuant to section 6608. Under this provision, a person committed as an SVP may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director. (§ 6608, subd. (a).) In any hearing under section 6608, the petitioner bears the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i).)
With this statutory framework in mind, we turn to defendant’s claims on appeal.
II
Defendant claims his commitment must be reversed because it was predicated on DMH psychiatric evaluations prepared in accordance with a protocol that was not properly adopted as a regulation under the Administrative Procedures Act (APA). (Gov. Code, § 11340 et seq.) He argues DMH’s failure to follow APA procedures denied him the benefit of Welfare and Institutions Code section 6601, a violation of his right to a fair hearing. We conclude that, even if DMH failed to follow APA requirements in adopting its protocol for preliminary assessment of defendant’s mental condition, the failure does not undermine the legitimacy of his commitment.
Government Code section 11340.5, subdivision (a) of the APA provides: “No state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, which is a regulation as defined in [Government Code] Section 11342.600, unless the guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule has been adopted as a regulation and filed with the Secretary of State pursuant to this chapter.” The Office of Administrative Law (OAL) is charged with enforcing this requirement. (Gov. Code, §§ 11340.2, 11340.5, subd. (b).)
Patterson Flying Service v. Department of Pesticide Regulation Grier v. Kizer Tidewater Marine Western, Inc. v. BradshawThe People do not argue the OAL’s determination is incorrect. Given the People’s failure to challenge OAL’s position, and our ultimate conclusion defendant has failed to establish prejudicial error, we assume, without so deciding, that the protocol is an underground regulation in violation of the APA.
Nothing in OAL’s determination suggests the protocol was otherwise deficient or unreliable as an assessment tool. In fact, OAL’s determination states its review of the protocol was only for the purpose of deciding whether it was a regulation within the meaning of the APA; OAL was not evaluating the advisability or wisdom of the protocol. (2008 OAL Determination No. 19, supra, at p. 1.)
DMH psychiatric evaluations prepared prior to the filing of a petition under the SVPA do not affect disposition of the merits of the petition; they are only a procedural safeguard to prevent meritless petitions from reaching trial. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) 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 these evaluations at either the probable cause hearing or the trial. (People v. Superior Court (Preciado)(2001) 87 Cal.App.4th 1122, 1130.) Once the petition is filed, the People need prove only the essential fact that the alleged SVP is a person likely to engage in sexually violent predatory behavior. (Ibid.)
Similarly, the only purpose of the probable cause hearing under the SVPA 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, 247.) The hearing is analogous to a preliminary hearing in a criminal case. (Ibid.) Once the court determines there is probable cause as to each element necessary for an SVP determination, the matter proceeds to trial in the manner described above.
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. (People v. Hayes (2006) 137 Cal.App.4th 34, 51.) Irregularities are not considered jurisdictional, and reversal is required only if the defendant can show he or she was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. (People v. Talhelm (2000) 85 Cal.App.4th 400, 405.)
Defendant does not challenge the sufficiency of the evidence at the probable cause hearing or at trial. Because DMH evaluations serve only to prevent meritless petitions from reaching trial, and a trial was held where a unanimous jury found beyond a reasonable doubt that defendant is an SVP, defendant has failed to establish any prejudice. Stated another way, because defendant has not shown that a different result was probable had DMH’s protocol been vetted through APA procedures, his claim of prejudicial error fails. (People v. Medina (2009) 171 Cal.App.4th 805, 820)
III
Defendant contends the SVPA’s indeterminate term of commitment, with limited review, violates the constitutional guarantees of due process and equal protection, and the constitutional prohibitions against ex post facto and cruel and unusual punishment. Recognizing that this issue is currently pending before the California Supreme Court (People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823; People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008, S164711), we conclude that the SVPA passes constitutional muster.
A
“A defendant challenging the statute on due process grounds carries a heavy burden. Courts have a ‘“duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.”’” (People v. Otto (2001) 26 Cal.4th 200, 209–210.)
Defendant contends his indeterminate commitment under the amended SVPA violates the due process clause of the Fourteenth Amendment to the United States Constitution because an SVP’s mental state may change and “the State should not be able to civilly commit an individual for perpetuity through the fiat of placing the burden on him to prove by a preponderance of the evidence that he is fit for release.”
However, as we have noted, DMH must review the mental condition of an SVP at least annually and must authorize that person to file a petition for discharge if DMH determines he is no longer an SVP; and the person can petition for discharge without the concurrence or recommendation of DMH. These procedures and the frequency of medical reviews do not create the risk of erroneous deprivation of an SVP’s liberty interest.
Contrary to defendant’s claim, shifting the burden of proof after the initial SVP civil commitment does not violate due process of law. SVPs are afforded a full panoply of protections before commitment to DMH for an indeterminate term of custody, including the right to counsel, trial by jury, the right to retain experts or other professionals, and a requirement of proof beyond a reasonable doubt. A person petitioning under section 6608 has already been found beyond a reasonable doubt to be an SVP, i.e., an individual with a mental illness likely to reoffend. Hence, when the committed person is the one asserting that change, contrary to the extant determination of DMH, it is not unfair or unreasonable to require the committed person to carry the burden of proof. (See Evid. Code, § 500 [“a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting”].)
Jones v. United States (1983) 463 U.S. 354 [77 L.Ed.2d 694] considered an analogous statutory scheme providing that a person committed after a finding of not guilty by reason of insanity was entitled to a judicial hearing to determine his eligibility for release. (Id. at pp. 356-359 [77 L.Ed.2d at pp. 700-702].) The Supreme Court found no due process violation in requiring the committed person to prove by a preponderance of the evidence that he is no longer mentally ill or dangerous. (Id. at pp. 366-368 [77 L.Ed.2d at pp. 706-707].) The reasoning applies here.
B
Defendant contends an indeterminate commitment with limited judicial review violates his right to equal protection of law because, he believes, an SVP is similarly situated to persons who are committed as mentally disordered offenders (MDOs) (Pen. Code, § 2960 et seq.) and those who are committed after a finding of not guilty by reason of insanity (NGI). We disagree.
“[T]he concept of equal protection of the laws is that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. [Citation.] The first requirement of a meritorious claim, therefore, is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.] If the persons are not similarly situated for purposes of the law, then the equal protection claim necessarily fails. [Citation.]” (People v. Taylor (2009) 174 Cal.App.4th 920, 935.)
SVPs and MDOs differ with respect to their amenability to treatment. “[T]he MDO law targets persons with severe mental disorders that may be kept in remission with treatment [citation], whereas the SVPA targets persons with mental disorders that may never be successfully treated [citation].” (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222.) “Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (People v. Buffington (1999) 74 Cal.App.4th 1149, 1163.)
SVPs and NGI acquittees differ significantly in how they are committed. A person who is found not guilty because he or she was insane at the time of the crime is automatically committed, without an evidentiary hearing to determine if the person is still insane at the time of commitment. (Pen. Code, § 1026.) In contrast, a person cannot be committed under the SVPA until a trier of fact finds beyond a reasonable doubt that the person is an SVP. (§ 6604.) Thus, SVPs and NGI acquittees are not similarly situated for the purposes of equal protection analysis. (People v. Taylor, supra, 174 Cal.App.4th at p. 936.)
C
Claiming his SVP commitment is a punishment, defendant contends that the changes in the law allowing for a potentially indefinite commitment violate the constitutional prohibitions against ex post facto and cruel and unusual punishments. His contention fails because an SVP commitment is not punishment.
A commitment pursuant to the SVPA is civil in nature and legally does not amount to punishment (People v. Yartz (2005) 37 Cal.4th 529, 536; People v. Vasquez (2001) 25 Cal.4th 1225, 1231-1232; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1179; People v. Taylor, supra, 174 Cal.App.4th at pp. 936-937; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn 2.), even after amendments providing for an indefinite commitment (People v. Taylor, supra, 174 Cal.App.4th at pp. 936-937.)
IV
The trial court refused to give defendant’s requested pinpoint instruction that would have told the jury: “The phrase ‘affecting his emotional or volitional capacity’ means that there must be proof that respondent has recently tried but has been unable to control his behavior. Behavior, for purposes of this instruction, means the commission of a contact offense against a child under 14 years of age.”
Relying on this court’s decision in People v. Galindo (2006) 142 Cal.App.4th 531 (hereafter Galindo), defendant argues it was prejudicial error to reject the pinpoint instruction. However, Galindo addressed a petition to extend the commitment of a criminal defendant committed pursuant to an NGI verdict. (Galindo, supra, 142 Cal.App.4th at p. 533; Pen. Code, § 1026.5.) It has no bearing on defendant, who was committed under a different statutory scheme.
The California Supreme Court has considered whether special instructions are necessary to address the issue of “serious difficulty in controlling behavior” discussed in Kansas v. Crane (2002) 534 U.S. 407, at page 413 [151 L.Ed.2d 856, 862]. (People v. Williams, supra, 31 Cal.4th at p. 763.) “[T]he SVPA requires a diagnosed mental disorder affecting the person’s emotional or volitional capacity that predisposes the person to commit sex crimes in a menacing degree.... [T]his requirement alone implies ‘serious difficulty’ in controlling behavior, as required by Kansas v. Crane.” (Id. at p. 776, italics omitted.) Thus, “a commitment rendered under the plain language of the SVPA necessarily encompasses a determination of serious difficulty in controlling one’s criminal sexual violence, as required by Kansas v. Crane, supra, 534 U.S. 407. Accordingly, separate instructions or findings on that issue are not constitutionally required, and no error arose from the court’s failure to give such instructions in defendant’s trial.” (People v. Williams, supra, 31 Cal.4th at p. 777, fns. omitted.)
Here, the trial court instructed the jury with a modified version of CALJIC No. 4.19, which closely follows the language of the SVPA. The California Supreme Court has held analogous language inherently and adequately conveys the crucial elements necessary to find a person is an SVP. (People v. Williams, supra, 31 Cal.4th at pp. 763, 777.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., ROBIE, J.