Opinion
NOT TO BE PUBLISHED
Superior Court County No. F334487 of San Luis Obispo, John A. Trice, Judge
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael C. Keller, Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Rudy Paredes appeals an order determining him to be a sexually violent predator ("SVP") and committing him to the Department of Mental Health ("Department") for an indeterminate term of treatment. (Welf. & Inst. Code, § 6600 et seq.) We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On September 30, 2005, the San Luis Obispo County prosecutor filed a petition to extend Paredes's commitment as an SVP pursuant to section 6600 et seq. The prosecutor alleged that on January 13, 2004, the trial court found that Paredes met the statutory criteria for an initial SVP commitment, and the commitment would expire on January 13, 2006. On April 20, 2006, the trial court found probable cause existed that Paredes met the SVP criteria.
In April 2007, Paredes filed motions challenging the recommitment petition on constitutional and other grounds. He asserted that the 2006 statutory amendments to the SVP law violate his constitutional rights to due process of law, equal protection of the law, and protection against ex post facto laws, among other things. The trial court denied the motions.
At trial, Doctor Jack Vognsen, a practicing psychologist, testified that he had interviewed Paredes several times. He opined that Paredes suffers from "paraphilia with a sexual attraction to nonconsenting [victims]," or paraphilia not otherwise specified ("NOS"). Vognsen described the mental disorder as chronic and lifelong. He also diagnosed Paredes with a substance abuse disorder and an antisocial personality.
Vognsen described three 1976 criminal convictions resulting from forcible sexual acts Paredes committed against women. Paredes overpowered and stabbed Ms. B., a realtor, with a screwdriver prior to raping her in an uninhabited apartment. Paredes forced a knife into Ms. S.'s vagina prior to raping her. Although he wore a stocking over his head, Ms. S. recognized him as a former classmate. Paredes entered Ms. C.'s home and raped her in front of her two young children. Vognsen opined that Paredes's sexual crimes involved "hypersexuality," sadism, and humiliation of his victims.
Following Paredes's release from prison, he violated parole by physically struggling with a woman until others came to her assistance. When police officers arrested Paredes, they discovered a stocking mask, surgical gloves, and drug paraphernalia inside his automobile. In 1989, he was arrested and later convicted of incest with his teenage daughter. Upon his release from prison, police officers arrested Paredes for annoying teenage girls by his sexual remarks and propositions. In 1995, Paredes violated parole by accompanying a woman to her apartment and insisting upon sexual activity. The victim's roommates interrupted his actions, and he left the apartment.
Vognsen evaluated Paredes's risk of recidivism with the "Static-99" and the "RRASOR" risk assessment tools. He opined that Paredes's risk of reoffending was approximately 48.6 percent over 10 years. Vognsen also considered additional risk factors, including Paredes's failure to cooperate with parole supervision, his many parole violations, and his "unruly" behavior at the state hospital, involving assaults upon staff members, an altercation with another patient, and demeaning sexual remarks to female staff. Vognsen also stated that Paredes refused to participate in sexual offender treatment.
Doctor Mark Scherrer, a clinical forensic psychologist, evaluated Paredes in 2005 and 2007. He reviewed Paredes's legal and medical records and concluded that he is an SVP. Scherrer also opined that Paredes suffers from paraphilia NOS, a chronic and life-long mental disorder, as well as substance dependence and an antisocial personality disorder with psychopathy. He opined that Paredes presents a serious risk of engaging in sexually violent predatory behavior, in part due to his "severe sexual deviancy," lack of self-regulation, and inability to cooperate with parole supervision.
Doctor Theodore Donaldson, a criminal psychologist specializing in forensic psychology, interviewed Paredes on February 20, 2003, and prepared an evaluation and an update. Donaldson opined that Paredes does not meet the SVP criteria of section 6600 et seq. because he does not suffer from "any specific sexual disorder." He opined that Paredes has an antisocial personality disorder and suffers from substance abuse. Donaldson described Paredes as "someone who takes things opportunistically," manifesting a "profound indifference" to others.
Doctor Robert Halon, a practicing psychologist, interviewed and evaluated Paredes, and also opined that he does not suffer from paraphilia or a mental disorder. Halon stated that Paredes is angry, narcissistic, and suffers from psychopathy. In Halon's opinion, Paredes is not an SVP because he does not suffer from a qualifying mental disorder.
On April 26, 2007, the jury found that Paredes is an SVP within the meaning of section 6600 et seq., beyond a reasonable doubt. The trial court ordered him recommitted to the Department for an indeterminate term of treatment.
Statutory Amendments
Between the filing of the recommitment petition and Paredes's trial, the Legislature and then the electorate amended the SVP Act, section 6600 et seq. ("Act"). The amended Act provides that an individual who is determined to be an SVP must be "committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility." (§ 6604.) Once committed, the individual must receive an annual examination of his mental condition. (§ 6605, subd. (a).) After the examination, the Department must file a report with the trial court stating whether the individual continues to meet the definition of an SVP or whether conditional or unconditional release of the individual would adequately protect the community. (Ibid.) The individual may, however, petition the trial court for conditional or unconditional release without the "recommendation or concurrence" of the Department. (§ 6608, subds. (a), (c).) As a result of the 2006 amendments, an SVP remains committed, either fully or in a conditional release setting, "until he successfully bears the burden of proving he is no longer an SVP or the Department of Mental Health determines he no longer meets the definition of an SVP." (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287.) An SVP's petition that is not authorized by the Department is determined by the court, without a jury. (§ 6608, subd. (d).) The trial court applied the amended Act to Paredes's recommitment proceeding.
On appeal, Paredes contends that: 1) the statutory amendments deny him due process of law; 2) the statutory amendments violate constitutional rights against ex post facto laws and double jeopardy; 3) the trial court lacked jurisdiction to hold the recommitment proceedings; 4) the statutory amendments deny him the equal protection of the law; and 5) he was illegally committed because the handbook the Department uses in evaluating prospective SVP's was not adopted as a regulation pursuant to the Administrative Procedure Act. (Gov. Code, § 11340 et seq.) Paredes rests his arguments upon the federal and California Constitutions.
Many of the issues that Paredes raises here are pending before our Supreme Court in People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, No. S162823; People v. Johnson (2008) 162 Cal.App.4th 1263, review granted Aug. 13, 2008, No. S164388; People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008, No. S164711; People v. Boyle (2008) 164 Cal.App.4th 1266, review granted Oct. 1, 2008, No. S166167; and People v. Garcia (2008) 165 Cal.App.4th 1120, review granted Oct. 16, 2008, No. S166682.
DISCUSSION
I.
Paredes argues that the amended Act violates due process of law afforded by the federal and state constitutions because following his indeterminate commitment, he will bear the burden of establishing by a preponderance of the evidence that he no longer presents a danger to others within the meaning of the Act. (§§ 6608, subds. (d), (i).) He relies in part upon the Supreme Court decisions in Addington v. Texas (1979) 441 U.S. 418, 432-433 [state must establish insanity and dangerousness warranting confinement by clear and convincing evidence]; Jones v. United States (1983) 463 U.S. 354, 370 [Constitution permits confinement of insanity acquittee until restoration of his sanity]; and Foucha v. Louisiana (1992) 504 U.S. 71, 79 [due process requires constitutionally adequate procedures to confine civil committee]. Paredes asserts that the amended Act makes it difficult for a committee to obtain release from indefinite commitment in circumstances not involving Department-authorized petitions. We disagree. In view of the statutory requirement that the state initially prove an SVP's status beyond a reasonable doubt, Paredes constitutionally bears the burden of proving by a preponderance of the evidence that he no longer presents a danger to others by reason of his mental disorder.
In Jones v. United States, supra, 463 U.S. 354, 363-368, the Supreme Court considered two important factors regarding indefinite civil commitment. First, it considered dangerousness as established by a criminal conviction obtained by proof beyond a reasonable doubt. (Id. at pp. 363-365.) Second, it considered mental illness as established by a preponderance of the evidence that the acquittee was insane at the time of his act. (Id. at pp. 366-368.) Here the jury made similar findings at Paredes's recommitment hearing. In determining that Paredes was an SVP, the jury necessarily found by proof beyond a reasonable doubt that he: 1) had been convicted of committing sexually violent offenses against one or more victims; 2) had a diagnosed mental disorder; and 3) as a result of that diagnosed mental disorder, is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory behavior. Thus the jury found that Paredes was both dangerous and mentally ill by evidence established beyond a reasonable doubt. As recognized in Jones, due process is flexible and calls for different procedural protections in different situations. (Id. at pp. 367-368.)
Moreover, the amended Act sufficiently protects Paredes's due process rights after his initial commitment. His burden of proof by a preponderance of the evidence is the same burden of proof that the Supreme Court implicitly approved in Jones v. United States, supra, 463 U.S. 354, 357, 368-370, for insanity acquittee review hearings. As the Jones review hearing is analogous to a petition for release pursuant to the amended Act, we are satisfied that the burden placed on Paredes to prove his right to release by a preponderance of the evidence in hearings involving petitions not authorized by the Department does not violate his constitutional rights to due process of law.
II.
Paredes contends that the amended Act is punitive and violates federal and state constitutional prohibitions against ex post facto and double jeopardy legislation. He acknowledges that Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1177, held that the former Act was civil in nature and therefore constitutional, but asserts that the amendments are criminal and punitive. Paredes points out that the amended Act increases punishment for sexual offenses and limits conduct credits for sexual offenders, among other things. He reasons that the indeterminate commitment, lack of a jury trial, and shifting of the burden of proof following the initial commitment involve increased punishment rather than treatment.
The United States Supreme Court and our Supreme Court have rejected challenges to the Act and the Kansas SVP Act respectively on ex post facto grounds. (Kansas v. Hendricks (1997) 521 U.S. 346, 370-371; Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1170-1179.) For several reasons, we conclude that the amended Act does not violate ex post facto and double jeopardy guarantees.
First, the amended Act retains the basic structure of civil commitment procedures to treat persons who have committed sexually violent acts. Its placement in the Welfare and Institutions Code, rather than the Penal Code, is evidence of legislative intent that the amended Act be considered a civil commitment scheme rather than criminal legislation. (Kansas v. Hendricks, supra, 521 U.S. 346, 361 [reviewing court defers to stated legislative intent unless clear proof that statutory scheme is punitive]; Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1171.)
Second, commitment of a dangerous, mentally ill person is a legitimate government objective that has long been viewed as nonpenal. (Kansas v. Hendricks, supra, 521 U.S. 346, 363; Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1173.) Third, treatment of the SVP remains a goal of the amended Act. (§ 6604.) Further, duration of commitment is not evidence of a punitive intent where it is linked to the commitment purpose of holding a person until his mental disorder no longer poses a threat to others. (Hendricks, at pp. 363-364; Hubbart, at pp. 1173, 1176.) Under both the amended Act and the former Act, once a committee is determined to no longer meet the SVP criteria, he is entitled to release. Fourth, the amended Act allows a jury trial at the initial commitment and on any petition authorized by the Department. (§§ 6603, subd. (a), 6604, 6605, subd. (d).) The circumstances that the amended Act does not allow a jury trial on a petition filed by an SVP without authorization from the Department do not render the Act a punitive statute.
In sum, the underlying purpose and intent of the law have not changed. The amended Act still requires a judicial finding that the person detained has committed a qualifying offense and suffers from a diagnosed mental disorder making it likely that he will engage in sexually violent criminal behavior. (§ 6600, subd. (a)(1).) Like the original law, the amended Act does not violate the federal and state constitutional prohibitions against ex post facto laws.
Moreover, the amended Act does not violate double jeopardy guarantees of the federal and state constitutions. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) The commitment remains civil in nature, not punitive; it does not constitute a second prosecution or second punishment for the same offense for which Paredes was previously convicted and incarcerated. (Kansas v. Hendricks, supra, 521 U.S. 346, 369.)
III.
Paredes contends that the trial court lacked jurisdiction to hold recommitment proceedings or to impose an indeterminate term. He asserts the court erred by applying the amended Act to him because the amendments do not contain provisions permitting recommitment of a previously committed SVP. Alternatively, Paredes argues that the two-year extension period of the former Act applies to him because the amendments may not apply retroactively. He claims that Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, and People v. Shields (2007) 155 Cal.App.4th 559, judicial decisions rejecting similar contentions, are wrongly decided.
As Paredes concedes, People v. Shields, supra, 155 Cal.App.4th 559, 562-564, Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, 1283-1289, and now People v. Carroll (2008) 158 Cal.App.4th 503, 508-510, 512-515, have rejected the jurisdiction and retroactivity arguments. We agree with and adopt the reasoning of these judicial decisions. We conclude that the trial court had jurisdiction to conduct the trial and commit Paredes for an indeterminate period of treatment under the amended Act. Moreover, the indeterminate commitment does not constitute a retroactive application of the amended Act.
IV.
Paredes asserts that the amended Act denies him equal protection of the law as afforded by the federal and California Constitutions, because he was committed for an indeterminate term and bears the burden to establish, without benefit of a jury trial, that he no longer meets the SVP criteria. In contrast, he points out that persons committed under other civil commitment statutes are committed for fixed terms and receive the benefit of jury trial at which the state bears the burden to prove that their commitments must be extended. Paredes argues that persons committed under the Act, the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) (MDO's), persons found not guilty by reason of insanity (id., § 1026 et seq.) (NGI's), and persons committed under the Lanterman-Petris-Short Act (§ 5000 et seq.) (LPS's) are similarly situated for purposes of evidentiary burdens and jury trial rights in recommitment proceedings. He adds that reviewing courts must strictly scrutinize involuntary civil commitment schemes because they affect a fundamental liberty interest. (Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1153, fn. 20; People v. Buffington (1999) 74 Cal.App.4th 1149, 1155-1156 [a legislative distinction that "involves a suspect classification or infringes on a fundamental interest... is strictly scrutinized and is upheld only if it is necessary to further a compelling state interest"].)
We reject Paredes's arguments. The contention that SVP's are similarly situated to MDO's, NGI's, and LPS's overlooks significant differences in the commitment schemes and their purposes concerning the degree and danger that persons committed under the respective schemes present. The contention also ignores the severity of mental illness, prognosis, and amenability to treatment of persons in the different groups. The Act concerns "'a small but extremely dangerous group of sexually violent predators....'" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) Other commitment schemes involve a broad range of mental illness and related conduct, e.g., LPS's include persons who have not committed any crime. (§ 5300.5, subd. (b).)
Moreover, an SVP is civilly committed in part because of the likelihood that he will engage in sexually violent criminal behavior upon release. SVP committees present a substantial danger to others, have a very high recidivism rate, require long-term treatment, and have only a limited likelihood of improvement. Committees under the other statutory schemes include those suffering mental illnesses of short duration with greater potential to be successfully treated with medication or other treatment. (See, e.g., People v. Buffington, supra, 74 Cal.App.4th 1149, 1163 [determining that SVP's and MDO's are not similarly situated for purposes of equal protection based upon differing treatment requirements].)
Even if we were to assume that the committee groups are similarly situated, their disparate treatment furthers a compelling state interest. SVP's receive an indeterminate term of civil commitment because they are less likely to be cured and more likely to reoffend than other civil committees. The law deems them more dangerous than persons who are committed under other civil commitment schemes. "The problem targeted by [the former Act] is acute, and the state interests - protection of the public and mental health treatment - are compelling." (Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1153, fn. 20.) The purpose of the amended Act is to protect the civil rights of the SVP committee and at the same time, protect society and the system from unnecessary or frivolous jury trials when there exists no competent evidence to suggest a change in the committee. (Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275, 1287.) The particular dangers that SVP's present and their limited success in treatment justify the state treating them differently from other civilly committed persons. We conclude the disparate treatment does not offend federal or state constitutional guarantees of equal protection of the law.
V.
By supplemental brief, Paredes asserts that his commitment is illegal because the protocol employed by the Department in evaluating SVP's was not adopted as a regulation pursuant to the Administrative Procedure Act. (Gov. Code, § 11340 et seq.)
Section 6601, subdivision (c) requires the Department to evaluate a sex offender "in accordance with a standardized assessment protocol, developed and updated by the [Department], to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall 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." Subdivision (d) of that section requires the Department to evaluate the sex offender by two practicing psychologists or psychiatrists and, upon their concurrence that the person evaluated is an SVP, to request the prosecutor to commit him pursuant to section 6600 et seq.
Consistent with the requirements of section 6601, subdivision (c), the Department published a protocol for use by evaluators in evaluating persons for SVP commitment. Recently, the Office of Administrative Law determined that the protocol, in material parts, was a regulation which the Department did not adopt according to procedures in the Administrative Procedures Act. As a result, Paredes and others were evaluated by psychologists or psychiatrists using an "underground" regulation. (Cal. Code Regs., tit. 1, § 250.)
Nevertheless, the Department's failure to comply with the requirements of the Administrative Procedures Act does not invalidate the order of recommitment. By analogy, our Supreme Court has held that defects in the preliminary hearing stage of a criminal prosecution do not invalidate the subsequent conviction unless the defendant establishes prejudice from the defect. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.) "The presence of a jurisdictional defect which would entitle a defendant to a writ of prohibition prior to trial does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought." (Id. at p. 529.) For example, the failure to obtain evaluation by two mental health professionals, as required by section 6601, subdivision (d), does not deprive the trial court of fundamental jurisdiction to determine an SVP petition. (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128-1131.) In those circumstances, the defect does not concern "the substantive validity of the complaint." (Id. at p. 1128.) Likewise, the defect in the adoption of the evaluation protocol did not prevent the trial court from acting on the SVP petition here. We do not believe the Legislature intended that either an SVP petition or a determination by the trier of fact that a sexual offender is an SVP should be invalidated because the public participation interests in the Administrative Procedure Act have not been vindicated. (Id. at p. 1131 ["We cannot believe the Legislature intended an offender who has previously been adjudicated as an SVP, and who in the opinion of the requisite evaluators is still dangerous, must be released only because a petition was filed prematurely"].)
Moreover, Paredes has not established prejudice from the Department's use of an underground regulation in his evaluations. At best, he speculates that the Department might adopt a materially different protocol that would result in a more favorable evaluation regarding his mental disorder.
The order is affirmed.
We concur: COFFEE, J. PERREN, J.