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People v. Kohler

California Court of Appeals, First District, First Division
Jan 20, 2009
No. A119663 (Cal. Ct. App. Jan. 20, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. PHILLIP KOHLER, Defendant and Appellant. A119663 California Court of Appeal, First District, First Division January 20, 2009

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Del Norte County Super. Ct. No. 94116C

FLINN, J.

Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Phillip Kohler (defendant) appeals an order committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP) for an indeterminate term. Defendant contends that the court abused its discretion, and violated his federal due process rights, by denying his request for a continuance to allow his court-appointed expert to complete an evaluation and testify on his behalf at trial. Defendant also contends that amendments to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) that became effective in 2006, changing the commitment to an indefinite term and modifying the procedure for petitions for release, violate his state and federal constitutional right to equal protection, due process, and the prohibition of ex post facto laws.

All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.

We shall hold that the court did not abuse its discretion by denying the continuance, nor did that ruling result in a violation of due process. We shall also hold that the amended version of the SVPA does not violate any of the aforementioned constitutional provisions, and shall affirm the judgment.

Facts

Defendant was initially committed as an SVP in 2001. Since then his commitment has been extended several times for two-year periods. On May 16, 2007, the district attorney filed another petition.

At the court trial, the primary evidence consisted of the testimony of Dr. Sinik, a forensic psychologist, who evaluated defendant and determined that he met the criteria for an SVP commitment. The first qualifying offense involved the attempted rape of a 17-year-old college student, who managed to escape. A couple of days later, defendant returned to the same location and forced another student into a car at knifepoint with the intent of raping her. A fight ensued; he stabbed her to death and threw her body into a river. He was convicted of assault with a deadly weapon and second degree murder, and committed to Atascadero State Hospital until he was released in 1984. In 1994 he molested several very young children, pleaded guilty to one count of lewd conduct with a child, and was sentenced to eight years in prison.

Dr. Sinik diagnosed defendant with nonexclusive pedophilia, paraphilia, bipolar disorder and a cognitive disorder. He also opined that, as a result of his mental disorders and history, defendant was likely to engage in sexually violent predatory criminal acts if released. He evaluated defendant’s risk of reoffense as in the “high risk” range, using the Static-99. He noted that defendant had a life-long pattern of sexual deviance, including sodomizing his four- and five-year old brothers when he was 14 or 15. He had continued to commit sexual offenses even after he had been incarcerated and taken two specialized treatment courses. Defendant was paroled in 1998. He was returned to prison after he violated parole five times, for reasons including possession of pornography depicting minors and rape themes. Other factors that increased his risk of recidivism were that he emotionally identified with children, had a personality disorder and intimacy deficit, was sexually preoccupied, was unable to self-regulate, and had poor problem-solving skills.

Defendant had improved his anger management problem, and was trying very hard to progress in Phase Two of the sex offender treatment program. Dr. Sinik was concerned about the fact that defendant continued to deny that he had sexually molested children, but was otherwise hopeful he would eventually be released.

Defense counsel extensively cross-examined Dr. Sinik about the basis for his opinion that defendant met the criteria of an SVP. Defense counsel also brought out that defendant was working hard and making progress in his current treatment, was exercising better emotional control, and had recently used some new anger management tools to avoid a fight when another patient “took a swing at him.” He also was taking his medication and accepted the need for it. Defense counsel established that unlike many other patients, defendant was willingly working with the treatment program, and that his paraphilia and pedophilia were controlled in the hospital setting.

Analysis

I.

Denial of Continuance

Defendant contends that the court abused its discretion, and violated his federal due process rights, when it denied his motion to continue the trial to allow his court-appointed expert additional time to complete an evaluation, write a report, and make himself available to testify at trial.

A. Procedural Background.

On June 28, 2007, the court set the court trial for August 1, 2007. The court continued the trial to August 8, 2007, and on August 3, 2007, at the request of the district attorney and with the consent of defense counsel, the court continued the trial again to September 12, 2007.

On August 23, 2007, defense counsel moved for the appointment of a psychologist, Dr. Vanoni. The court granted the request on August 27. On August 31, 2007, defense counsel informed the court that Dr. Vanoni had not completed his evaluation, but the trial date remained set for September 12, 2007.

In the meantime, defendant filed a motion to dismiss, based in part on the argument that the 2006 amendments to the SVPA impliedly repealed the procedure for recommitment, and also filed a motion to limit expert testimony. On September 12, 2007, the court continued the trial to October 25, 2007, and scheduled a hearing on the defense motions for October 18.

On October 18, 2007, after the court denied the motion to dismiss, defense counsel informed the court that he had run into Dr. Vanoni, who was in the county appearing at another trial, and had a brief discussion in which he learned that Dr. Vanoni had been ill and had not met with defendant on October 1 as scheduled. Defense counsel stated he had not yet determined whether Dr. Vanoni would nonetheless be able to complete a report by the upcoming trial date, but alerted the court that he might file a motion to continue. When the district attorney reminded the court of the difficulty of getting experts up to “our rural area,” and that he had confirmed the trial date for his two experts, the court suggested that in lieu of a continuance Dr. Vanoni could travel to the county to evaluate defendant and testify at trial, all in one trip. After some debate about whether it would be fair to allow Dr. Vanoni to testify without first providing a written report to the district attorney, the court and the parties concluded the discussion was hypothetical since no motion to continue had yet been filed. The district attorney added that he would not object to Dr. Vanoni filing a report late if the parties stipulated to submit to the court based on the written reports of the experts, as had been done with respect to prior petitions.

Defense counsel filed a motion to continue the next day. At the October 23, 2007 hearing, defense counsel represented to the court that a member of his staff had personally handed defendant’s file to Dr. Vanoni on September 30, and that defense counsel had e-mailed Dr. Vanoni on September 12 when the October 25 trial date was set to inform “him of the file, the case and everything.” During the week of October 15, 2007, defense counsel learned, when he ran into Dr. Vanoni in the courthouse, that Dr. Vanoni had not met with defendant to complete his evaluation. Dr. Vanoni explained to defense counsel that he missed the scheduled meeting with defendant on October 1 because he had been ill and overlooked defendant’s file. He also informed defense counsel that he could not see defendant and file a report until November 2.

Defense counsel also informed the court that Dr. Vanoni could not make himself available to testify on the scheduled trial date, due to “some other commitments.” The court asked for details regarding the other commitments, but defense counsel was unable to provide any. The court also asked whether defense counsel had any information to suggest that Dr. Vanoni would come to a different conclusion than the other experts who had evaluated defendant. Defense counsel stated he questioned whether defendant suffered from any mental illness based upon his own observation that defendant seemed to understand everything, and was not delusional. He acknowledged that he was not an expert, but added he had no more information because he had not yet “actually had [Dr. Vanoni] look at my client.” Later in the hearing defense counsel clarified that Dr. Vanoni had seen defendant in August, but told defense counsel in light of defendant’s long history he needed to see defendant again for more testing and evaluation. Defense counsel thought he had allowed enough time for Dr. Vanoni to see defendant when he returned from a trip to Europe, but then Dr. Vanoni got ill.

The prosecutor opposed the motion. He noted the original trial date had been set for August 1, 2007, that counsel had informed the court on August 31 that the evaluation had begun but was not yet complete, and defense counsel had not explained what other commitments Dr. Vanoni had that would take priority over a trial, especially when the date had been confirmed by all parties on September 12, 2007. The prosecutor added that at least one of his experts had already postponed surgery to be available for trial. The prosecutor also reiterated, as an alternative to a continuance, that Dr. Vanoni could be given time to write a report, and the parties could submit the matter to the court based upon the written doctor’s reports.

The court denied the motion to continue. The court stated that there had “been ample time for the evaluation to have occurred.” The court noted that although the original trial date had been set in late June, defense counsel did not seek appointment of an expert until August 27, 2007. Moreover, “when [defense counsel] learned Dr. Vanoni was going to be in Europe for a lengthy period of time, there was no action taken then to try to substitute some other doctor in his place but instead . . . you took the chance that he would be able to get it done when he got back. And . . . there is no reason to believe that Dr. Vanoni’s conclusion would be any different from any of the other doctors that have examined the defendant. If there were some reason to think so you would have a stronger case for continuance, but at this point there is nothing of record to show that anything will be gained by having one further evaluation when there have been a number . . . of them already.”

B. Analysis of Court’s Exercise of Discretion.

The party moving for a continuance must make a showing of good cause, which may include: “[t]he unavailability of an essential . . . expert witness because of death, illness, or other excusable circumstances” or “[a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” (Cal. Rules of Court, rule 3.1332(c)(1), (6).) In exercising its discretion to grant or deny a continuance, the court may also consider the proximity of the trial date, the length of the continuance and whether any previous continuances have been granted, the availability of alternative means to address the problem that gave rise to the motion for a continuance, and prejudice to the parties or witnesses if the continuance were granted. (Cal. Rules of Court, rule 3.1332(d)(1)-(5).)

We review the court’s decision to grant or deny a continuance under the abuse of discretion standard. (People v. Mungia (2008) 44 Cal.4th 1101, 1118; Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 200; Pham v. Nguyen (1997) 54 Cal.App.4th 11, 18-19.) The issue is not whether this court would have exercised its discretion in the same manner as the trial court, but rather whether the court’s ruling “exceeds the bounds of reason, all circumstances being considered.” (People v. Beames (2007) 40 Cal.4th 907, 920.)

The same standard applies to requests for continuance in both civil and criminal proceedings. (People v. Ranger Ins. Co. (2000) 81 Cal.App.4th 676, 679.)

The denial of a continuance may also result in a denial of due process. “However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.] Although ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.’ [Citation.] Instead, ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ ” (People v. Beames, supra, 40 Cal.4th at p. 921.) In determining whether denial of a continuance results in a federal due process violation, relevant factors include: “[1] the extent of appellant’s diligence in his efforts to ready his defense prior to the date set for hearing . . . [2] how likely it is that the need for a continuance could have been met if the continuance had been granted . . . [3] the extent to which granting the continuance would have inconvenienced the court and the opposing party, including its witnesses. . . [4] the extent to which the appellant might have suffered harm as a result of the court’s . . . denial.” (U.S. v. Rivera-Guerrero (2005) 426 F.3d 1130, 1138 -1139.)

The court’s decision in this case does approach the limits of its reasonable discretion, given that the continuance defendant sought was only for nine calendar days, and Dr. Vanoni’s testimony was the only evidence defendant sought to present in his defense. Nonetheless, as we shall explain more fully below, the record fully supports the court’s conclusion that counsel was not diligent, and the court weighed other proper countervailing factors, such as the proximity of trial, the number or prior continuances, the effect of another continuance on the availability of other expert witnesses, and whether another continuance was likely to result in obtaining evidence material to the defense. The court also stated its willingness to consider alternatives to a continuance, such as submission of a written report. When all these relevant factors are considered, we cannot say that the court’s decision to deny the continuance exceeded the bounds of reason, or deprived defendant of meaningful opportunity to present a defense.

Defendant asserts that the record does not support the court’s conclusion that defense counsel was not diligent, because Dr. Vanoni unexpectedly became ill and defense counsel acted quickly once he learned that Dr. Vanoni had missed the October 1 appointment to complete his evolution of defendant. But other facts support the court’s conclusion that defense counsel was not diligent in his efforts to obtain an expert evaluation of defendant, or in securing the presence of his expert at trial: The original August 1, 2007 trial date was set in late June, yet defense counsel took no steps to have a defense expert appointed until August 23, 2007. When he finally made the request, trial was set for September 12, only a few weeks away. Defense counsel also knew as early as August 31 that Dr. Vanoni had decided he would need to conduct further evaluation, and he would be unable to do so for weeks because he was leaving for an extended vacation in Europe. Nonetheless, defense counsel did not then ask for a continuance, or seek to have a different expert appointed. Instead, either before or after the court continued the trial date to October 25, defense counsel arranged for Dr. Vanoni to meet with defendant again on October 1. Defense counsel did not follow up with Dr. Vanoni to find out the status of his evaluation after the October 1 appointment, and only learned two weeks later that Dr. Vanoni had not actually met with defendant on October 1, when he happened to run into Dr. Vanoni while the doctor was in the courthouse on another matter. The foregoing facts support the court’s conclusion that it was not Dr. Vanoni’s unexpected illness, but rather defense counsel’s lack of diligence, that caused the inability to complete the evaluation of defendant. No doubt, Dr. Vanoni’s illness itself was a factor beyond defense counsel’s control, but the time constraints counsel faced at the final stages of trial preparation were created by his prior lack of diligence.

Moreover, Dr. Vanoni’s unexpected illness did not explain his sudden unavailability to testify at trial, and the consequent inability of defense counsel to pursue the alternative to a continuance the court had tentatively proposed. “While the unavailability of a witness is considered good cause for a continuance . . ., the unavailability must be combined with the fact the witness has been subpoenaed (or is beyond the reach of a subpoena and has agreed to be present), and the witness’s absence is ‘an unavoidable emergency that counsel did not know and could not reasonably have known at the time of the pretrial or trial setting conference.’ ” (Pham v. Nguyen, supra, 54 Cal.App.4th at p. 18.) At the hearing the day before defense counsel filed the motion for a continuance, the court had expressed a willingness to consider the option of allowing Dr. Vanoni to testify without filing a written report, so that Dr. Vanoni could travel to the county in time for trial, complete his evaluation of defendant, and testify, without first filing a written report. The next day, defense counsel informed the court that he had e-mailed Dr. Vanoni on September 12, the day the trial date was set, to inform “him of the file, the case and everything.” Dr. Vanoni now informed counsel he was unavailable to testify at trial due to other commitments. Counsel provided the court with no other details or reasons why Dr. Vanoni’s unavailability to testify on the date set for trial had only just come to light. In the absence of more specific information about the nature of Dr. Vanoni’s other commitments, it was not unreasonable for the court to conclude, in light of the proximity of the trial date and the failure to inform the court earlier of Dr. Vanoni’s conflicts, that Dr. Vanoni’s unavailability for trial was not “an unavoidable emergency.” (See ibid. [court did not abuse its discretion in denying a request for continuance when the “request was predicated on the trial court’s taking the ‘unavailability’ of the expert on faith, without any substantial explanation”].)

Defendant also asserts that the court improperly based its decision to deny the continuance based upon the numerous other prior findings that he was an SVP made in context of prior recommitment petitions, and on an assumption that another expert would not reach a different conclusion. (See People v. Munoz (2005) 129 Cal.App.4th 421, 430 [holding that because issue is whether the defendant has a currently diagnosed mental disorder, prior findings that defendant is an SVP, while not irrelevant, must be handled in a manner that avoids suggesting to jury that issue is whether anything has changed since last petition].) The court did not, however, deny the continuance based upon the prior findings. Instead, given the number of prior continuances, albeit not all at the defense’s request, and the prosecutor’s representation that one of the experts he intended to call had already had to reschedule surgery once, the court properly tried to ascertain whether another continuance was likely to yield evidence helpful to the defense. It therefore asked whether defense counsel could provide any information to suggest that Dr. Vanoni would reach a conclusion different than the other experts. This inquiry was relevant to the question whether denial of another continuance would result in prejudice. Since Dr. Vanoni had examined defendant in August, it was not unreasonable for the court to ask defense counsel to give some basis for further delaying trial beyond the hope that upon further testing Dr. Vanoni would be able to provide testimony that would aid the defense.

Defendant’s reliance upon U.S. v. Rivera-Guerro, supra, 426 F.3d at p. 1138, for the proposition that, despite counsel’s lack of diligence, the court should have granted a continuance based upon the bare possibility that this expert testimony could be favorable to defendant, is misplaced. In that case, the court held the district court had abused its discretion in denying a continuance of a hearing to allow the defendant to obtain expert testimony opposing a plan to involuntarily medicate him to restore his competency to stand trial. The court rejected the argument that defense counsel’s lack of diligence in seeking appointment of an expert before the hearing supported denial of a continuance, because the government had frustrated defense counsel’s efforts to obtain enough specific information about the proposed medication to allow a defense expert to prepare an opinion. (Id. at pp. 1138-1139 & fn. 5.) The court further found that defense counsel supported her assertion that if a continuance were granted she could provide expert testimony to aid the defense position that the defendant should not be involuntarily medicated: She described the type of evidence she would present, and submitted many articles showing “a respectable, though minority, portion of the medical community” disagreed with the government’s experts on key issues of efficacy and risk of the recommended medication. (Id. at pp. 1140-1141.) By contrast, here defense counsel was informed of the opposing expert’s opinions well in advance of trial, yet had not diligently pursued the appointment of a defense expert or the completion of the examination, and asked the court yet again to grant a continuance based upon nothing more than the hope that Dr. Vanoni might be able to provide an opinion more favorable to defendant.

Defendant also fails to demonstrate that the denial of the continuance violated his due process rights by depriving him of a fair trial, and cannot show on this record that the denial of a continuance resulted in prejudice requiring reversal. The court never foreclosed the possibility of allowing the defendant to submit Dr. Vanoni’s written report after the trial, yet defense counsel did not ask the court to revisit that possibility. Defendant also had a full opportunity at trial to cross-examine the state’s experts, and it was not a close question whether he met the criteria for commitment as an SVP. Moreover, the record contains nothing more than speculation that another expert opinion would have aided his defense. We do not know whether Dr. Vanoni ever completed his evaluation of defendant, or what his conclusion were. On this record we find no violation of due process, and also conclude that defendant has failed to demonstrate prejudice warranting reversal.

II.

Constitutional Challenges to The SVPA

Defendant next contends that amendments to the SVPA that became effective in 2006 violate his state and federal constitutional right to equal protection, due process, and the prohibition of ex post facto laws.

The California Supreme court has granted review in: People v. McKee, review granted July 9, 2008, S162823, formerly published at 160 Cal.App.4th 1517; People v. Riffey, review granted August 20, 2008, S164711, formerly published at 163 Cal.App.4th 474; People v. Johnson, review granted August 13, 2008, S164388, formerly published at 162 Cal.App.4th 1263; People v. Boyle, review granted October 1, 2008, S166167, formerly published at 164 Cal.App.4th 1266; and People v. Garcia, review granted October 16, 2008, S166682, formerly published at 165 Cal.App.4th 1120. The issues pending in these cases include whether the amended SVPA violates equal protection, due process or ex post facto principles.

Summary of Relevant Provisions of the SVP Act.

On September 20, 2006, the Governor signed Senate Bill No. 1128 (2005-2006 reg. sess.), which went into effect immediately as emergency legislation (Stats. 2006, ch. 337, § 62, p. 83). Among other things, Senate Bill No. 1128 amended the SVPA to provide for an indeterminate commitment term for persons determined to be SVP’s. (Stats. 2006, ch. 337, §§ 55, p. 80; 56, p. 81; 62, p. 83.) Shortly thereafter, the voters in the November 2006 general election approved Proposition 83, which also provided for indeterminate terms of commitment for SVP’s. As a result of these 2006 amendments to the SVPA, if the People bring a petition and prove beyond a reasonable doubt that an individual is an SVP, the individual is committed for an indefinite term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1281 (Bourquez) [review den. Feb. 27, 2008].)

Thereafter the DMH must, at least once a year, conduct an examination of the person’s mental condition and issue a report. (§ 6605, subd. (a).) If, as a result of the examination, DMH determines that the person no longer is an SVP, the DMH must authorize the person to file a petition for conditional release or an unconditional discharge. (§ 6605, subd. (b).) If, at a show cause hearing on that petition, the trial court determines “probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged,” the court must set an evidentiary hearing on the issue. (§ 6605, subd. (c).) At the hearing, the person has the right to retain an expert or, if indigent, to have the court appoint an expert on his or her behalf. The committed person also is entitled to all constitutional protections that were afforded to him or her at the initial commitment proceeding. (§ 6605, subd. (d).) “The burden of proof at the hearing shall be on the state to prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (Ibid.) If the court or jury finds in the committed person’s favor, the person shall be unconditionally released and discharged. (§ 6605, subd. (e).)

Even if the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file a petition pursuant to section 6608. (§ 6608, subd. (a).) No hearing shall be held on a section 6608 petition until the person has been committed for at least one year. (§ 6608, subd. (c).) Under section 6608, the court may deny the petition without a hearing if it finds the petition is frivolous. (§ 6608, subd. (a).) If the petition is not frivolous, the court must hold a hearing “to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d).) The burden of proof is on the committed person to prove his case by a preponderance of the evidence. (§ 6608, subd. (i).) If the court determines the committed person would not be a danger, the court shall order the person placed in a conditional release program for one year, and hold a hearing at the end of the year to determine if the person should be unconditionally released. (§ 6608, subd. (d).) Once a section 6608 petition has been denied, the court shall deny any subsequent 6608 petition “unless it contains facts upon which a court could find that the condition of the committed person [has] so changed that a hearing [is] warranted.” (§ 6608, subd. (a).)

Finally, in addition to the annual review, if the director of DHS at any time determines “that the person’s diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community,” the director shall forward a report and recommendation for conditional release to the court and the parties and the court shall set a hearing in accordance with the procedures set forth in section 6608. (§ 6607.) DMH may also seek judicial review under section 7250 if it has reason to believe the person is no longer an SVP. (§ 6605, subd. (f).)

Equal Protection.

Defendant first contends the SVPA, as amended, violates his constitutional right to equal protection. He asserts that an SVP is similarly situated to persons committed under the Mentally Disordered Offender Act (MDO) (Pen. Code, § 2960 et seq.) and persons committed after being found not guilty by reason of insanity (NGI) (Pen. Code, § 1026 et seq.), yet only SVP’s are subject to indeterminate terms of commitment, and only SVP’s bear the burden of proving they no longer meet the criteria for commitment when seeking release.

“ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 (Cooley).) Defendant’s essential premise, that the classes of MDO’s and persons committed after an NGI verdict are similarly situated with SVP’s with respect to the commitment term and procedure for review of status and release after an initial commitment, overlooks important differences between commitments of MDO’s and persons committed after an NGI verdict with respect to the degree and type of danger they pose, the severity of mental illness, prognosis, and amenability of treatment.

Unlike an SVP, a person committed after an NGI verdict need not have committed any particular type of crime, nor is there any requirement that the person have a mental illness that predisposes them to commit any particular type of crime in the future. (Pen. Code, § 1026; cf. § 6600, subd. (c); Cooley, supra, 29 Cal.4th at p. 253.) A person found not guilty by reason of insanity is committed based upon a determination that he or she was insane at the time the crime was committed and has not recovered sanity. The commitment is in lieu of incarceration for the underlying criminal offense, and therefore the length of the commitment is linked to the maximum term for that offense. (Pen. Code, § 1026.5, subd. (a)(1).)

The MDO law applies to a broader range of qualifying felonies than the SVPA. It also includes persons with severe mental disorders that may be kept in remission with treatment, whereas persons committed under the SVPA have mental disorders that create a risk of future sexually violent criminal behavior that may never be successfully treated. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1222; People v. Buffington (1999)74 Cal.App.4th 1149, 1163; see also Pen. Code, § 2962, subd. (a); § 6606, subd. (b).) “Involuntary commitment under the MDO Act is directly related to the crime for which the defendant was incarcerated. [Citations.] The ‘severe mental disorder’ of an MDO must be a cause or an aggravating factor of the violent crime for which the prisoner was sentenced to prison. [Citation.] The ‘diagnosed mental disorder’ of an SVP, by contrast, need not have contributed to the prior ‘sexually violent offense.’ [Citation.] The MDO Act considers, at least in part, past evaluation and treatment, while the SVPA considers only the likelihood of future sexually violent criminal behavior without commitment. [Citations.]” (People v. Buffington, at pp. 1162-1163.)

In contrast to a person committed as an MDO or a person found not guilty by reason of insanity, an SVP is a person who has committed specific types of crimes and has a mental disorder that “predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) An SVP is not committed until there is a determination by a fact finder, beyond a reasonable doubt, that he currently suffers from a mental illness that makes him dangerous, among other criteria. (§§ 6600, 6604.) An SVP, because of his or her mental illness, “presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) Moreover, the danger to the community is particularly high, because in addition to a high rate of recidivism, their offenses are typically directed “toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (§ 6600, subd. (e); People v. Hurtado (2002) 28 Cal.4th 1179, 1182.) SVP’s represent a very small number of dangerous people that have committed certain specified crimes and suffer a certain type of mental illness. (See Cooley, supra, 29 Cal.4th at p. 253 the SVP Act targets “ ‘a small but extremely dangerous group of SVP’s . . . .’ ”.)

In sum, SVP’s have committed a particular class of crime associated with a high rate of recidivism that poses a greater risk to the general public, and suffer from mental illness that typically requires longer-term treatment with a lower likelihood of success than an MDO or person committed upon an NGI verdict. In light of these differences between the type of crimes committed, the risk of reoffending, the degree of danger the person poses to the public, the need for and susceptibility to treatment, and the prognosis, we conclude that individuals found to be SVP’s under the SVPA are not similarly situated to an MDO, or persons committed following a verdict of NGI. Therefore, singling out the class of SVP’s for an indeterminate commitment term and different procedures for review of status and release after an initial commitment does not violate their right to equal protection.

Due Process.

Defendant also contends that the SVPA violates state and federal constitutional due process principles by providing for an indeterminate commitment term and placing the burden of proof on the SVP in a subsequent petition for release, and allowing the court to summarily dismiss subsequent petitions for release as frivolous. (§ 6608, subds. (a), (i).)

An initial civil commitment for an indefinite term does not violate due process merely because of the potential for a lengthy commitment. (See Jones v. United States (1983)463 U.S. 354, 368 (Jones) [statute providing for indefinite commitment of a criminal defendant acquitted by reason of insanity and requiring defendant to prove by preponderance of evidence that he is no longer insane or dangerous in order to be released does not violate due process]; see also Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks) [upholding Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that the committed person is no longer dangerous].) An indefinite civil commitment is consistent with due process if the statute provides fair and reasonable procedures to ensure that the person is only held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.)

The initial commitment hearing provides a significant level of due process protection by requiring the prosecution to prove that the person qualifies for commitment beyond a reasonable doubt. (§ 6604.) This is a higher standard than the clear and convincing standard upheld in Addington v. Texas (1979) 441 U.S. 418, 433. The procedures for postcommitment review and release in the SVPA are also constitutionally adequate to ensure that the committed person is released once he or she no longer qualifies as an SVP. The SVPA requires at least annual reviews of an individual’s mental health status and forwarding of the reviews to the committing court and the prosecuting attorney. It also requires DMH to authorize the individual to file a petition for release if the examination reveals he or she is no longer an SVP. The annual examinations by DMH, the right to an independent examination, and the petitioning procedures pursuant to sections 6605 and 6608 minimize the risk of an erroneous determination. The substitution of annual review by the DMH and the procedure for authorized and unauthorized petitions, for the requirement in the former version of the SVPA of automatic full judicial review every two years, strikes a reasonable and fair balance between protection of the rights of committed persons not to be detained any longer than their mental illness and dangerousness requires, and the interest of the state in protecting the public from persons who are mentally ill and dangerous, and in avoiding unnecessary relitigation of issues, in the absence of some evidence of a change in the conditions underlying the initial commitment. (See, e.g., Hendricks, supra, 521 U.S. at p. 363 state has legitimate interest in protecting community from the mentally ill and dangerous; see also U.S. v. Wattleton (2002) 296 F.3d 1184, 1200-1201 state also has an interest in avoiding unnecessary relitigation of issues.)

Nor does the amended SVPA violate due process by requiring the committed person to bear the burden of showing that he or she is no longer a mentally ill and dangerous SVP when the DMH does not authorize a petition under section 6605. It is not unreasonable to rely on the findings of DMH that an individual’s mental status remains unchanged, and the committed person still is provided with a meaningful opportunity to prove it has changed. Placing some burden on the committed individual after the state has proved beyond a reasonable doubt that he or she is an SVP, and after the DMH, in an annual review, has found no change, is not unreasonable. The burden of proof by a preponderance of evidence requirement is no heavier than the burden of proof placed on a person found not guilty by reason of insanity that the United States Supreme Court implicitly approved in Jones, supra, 463 U.S. at pages 357, 366-368. The review hearing procedure approved in Jones is analogous to a petition for release pursuant to section 6608.

Nor are we persuaded that the provision of the SVPA that permits the trial court to summarily dismiss a petition for release pursuant to section 6608 violates due process because it is arbitrary, unfair or deprives a committed person of a meaningful opportunity to be heard by a court. Defendant cites no authority for the proposition due process includes a right to a full evidentiary hearing or trial on a claim a court has determined to be frivolous, or not supported by a minimal threshold showing of probable cause. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, fn. 4, disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 55, 68, fn. 5 [“The right to petition is not absolute, providing little or no protection for baseless litigation or sham or fraudulent actions”].) The provision allowing the court to summarily dismiss a section 6608 petition is fair and reasonable in light of the fact that the DMH has already performed an annual review and made a determination that the person’s condition has not changed, and the SVP nonetheless has the opportunity to obtain judicial review, and has the assistance of counsel to make his initial showing. (§ 6608, subd. (a).) A judicial officer is charged with making the determination regarding probable cause, or the frivolousness of the petition, the standard for determination a petition is frivolous is quite narrow, and the decision is subject to appellate review. (Code of Civ. Proc., § 904.1, subd. (a)(2); see also People v. Collins (2003) 110 Cal.App.4th 340, 349-352.)

Ex Post Facto.

Defendant next contends that the amendment providing for an indeterminate term violates the constitutional prohibition of ex post facto laws because the amendments became effective on November 7, 2006, approximately five years after defendant was first determined to be an SVP. The ex post facto clause applies only to penal statutes. A commitment statute that is civil in purpose and does not impose punishment does not violate this constitutional prohibition. (Hendricks, supra, 521 U.S. at pp. 370-371.)

It is well settled that a commitment under the version of the SVPA prior to the 2006 amendments is civil in nature and does not amount to punishment. (See Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179 (Hubbart) [SVPA does not impose punishment or implicate ex post facto concerns]; see also Hendricks, supra, 521 U.S. at p. 369 [the prohibition of ex post facto laws did not apply to Kansas Sexually Violent Predator Act, which provided for commitment until mental abnormality or personality disorder has so changed that the committed person is no longer dangerous because commitment was not punitive].)

Defendant nonetheless contends the 2006 amendments fundamentally changed both the purpose and effect of the SVPA and rendered the commitment punitive by imposing an indeterminate term, and eliminating the automatic full judicial review of the committed person’s status every two years. These changes did not alter the fundamentally civil purpose of an SVP commitment. The court in Hubbart observed that “nothing in Hendricks[, supra, 521 U.S. 346] purports to limit for ex post facto purposes the precise length of time during which dangerously disordered persons may be confined, or the particular procedural circumstances under which they may be released. In rejectingHendricks’s claim that the scheme imposed punishment because confinement was ‘potentially indefinite,’ the court made clear that the critical factor is whether the duration of confinement is ‘linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others.’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1176.) As we have explained in addressing defendant’s due process challenge to the indeterminate term, the amended SVPA does not permit commitment once a person no longer qualifies as an SVP, and provides adequate procedures to ensure that a person who is involuntarily committed under the SVPA continues to meet the legal criteria for SVP commitment, and that the individual will be released if he or she is no longer mentally ill. Since neither the indeterminate term nor the changes in postcommitment release procedures authorizes involuntary commitment of individuals who are no longer mentally ill, we conclude that commitment pursuant to the SVPA continues to be civil, not punitive. Absent a punitive purpose and effect rendering the commitment penal, the constitutional prohibitions of ex post facto laws are not implicated.

Conclusion

The judgment is affirmed.

We concur: MARCHIANO, P. J., MARGULIES, J.


Summaries of

People v. Kohler

California Court of Appeals, First District, First Division
Jan 20, 2009
No. A119663 (Cal. Ct. App. Jan. 20, 2009)
Case details for

People v. Kohler

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PHILLIP KOHLER, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Jan 20, 2009

Citations

No. A119663 (Cal. Ct. App. Jan. 20, 2009)