Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-020373-7
GEMELLO, J.
Defendant challenges the jury instruction given at his civil commitment trial under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, former § 6600 et seq.) We dismiss the appeal as moot.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
In 1992, Noel Pritchett was convicted of lewd and lascivious conduct with a two-year-old girl and he was placed on probation. (Pen. Code, § 288, subd. (a).) In 1996, he was convicted of two counts of lewd and lascivious conduct with a two-year-old boy and was sentenced to 11 years in state prison. (Ibid.) In March 2002, about two weeks before Pritchett was scheduled to be released from prison, the district attorney filed a petition for commitment as a sexually violent predator. (Welf. & Inst. Code, former § 6604.) Following a bench trial, the court found that Pritchett was a sexually violent predator and ordered him committed for a two-year term expiring in 2004. Pritchett appealed his commitment and this division affirmed.
Details of the two predicate offenses and the testimony of two prosecution psychologists are included in the unpublished opinion affirming Pritchett’s initial order of commitment. (A100115N, filed Nov. 13, 2002.)
In August 2004, the district attorney petitioned for an extension of Pritchett’s commitment for another two-year term. The prosecution presented the expert testimony of Dr. Dale Arnold. He diagnosed Pritchett with pedophilia, which tends to be a chronic, lifelong condition; depression; and other disorders. Pritchett’s deviant attraction to children clearly affected his volitional control, which Arnold explained as Pritchett’s ability to control his impulses. Arnold further opined that Pritchett was emotionally impaired in that he did not “recogniz[e] the negative consequences of his behavior.” He was likely to reoffend if released. Dr. Jack Vognsen, another prosecution witness, testified as follows: he diagnosed Pritchett with pedophilia, among other disorders, and said he was likely to reoffend if released.
Dr. James Park, testifying for the defense, diagnosed Pritchett with post-traumatic stress syndrome, depression and pedophilia in remission. Dr. Park opined that Pritchett was not sexually compulsive and he did not use sex to cope with emotional states. Dr. Mary Jane Adams, also testifying for the defense, diagnosed Pritchett with dysthmic disorder but not pedophilia. Pritchett did not have the fixed, repetitive and compulsive behavior characteristic of pedophiles, but he demonstrated impulsive and opportunistic behavior. His primary problem was regulating his emotions, not volitional control.
The jury found beyond a reasonable doubt that Pritchett had a diagnosed current mental disorder as defined in the jury instruction (CALJIC No. 4.19) and that this disorder made him a danger to the health and safety of others in that it was likely he would engage in sexually violent predatory criminal behavior upon release. The court ordered Pritchett committed for another two-year term that expired September 6, 2006.
Discussion
Pritchett challenges the constitutionality of the standard SVPA jury instruction given at his trial (CALJIC No. 4.19). He argues the instruction allowed the jury to find him a sexually violent predator based on an emotional impairment without finding that he had a serious difficulty in controlling his behavior, as required by Kansas v. Crane (2002) 534 U.S. 407, 413.
Preliminarily, the People argue that we must dismiss this appeal as moot because the two-year commitment term has expired, and any subsequent commitment can only be imposed following procedures equivalent to an initial petition for commitment. The issue is moot as to defendant as his commitment expired in September 2006. Nonetheless, because defendant may be subject to subsequent commitment hearings, we exercise our discretion to decide the issue before dismissing the appeal. (See People v. Cheek (2001) 25 Cal.4th 894, 897-898.)
We are not informed whether Pritchett was released following the expiration of the challenged term, nor whether the district attorney filed a petition for extension of that commitment.
We are not convinced by appellant’s argument that the issue is likely to evade appellate review because of the short (two year) term of commitment. Were a defendant to immediately file an appeal, move to expedite the appeal and request that no continuances be granted, the appeal could be heard in a timely manner. Here, the opening brief was filed in June 2006, almost a year after the verdict; the respondent’s brief was filed in October; and the reply brief in December. There was no objection to the requested extensions of time granted for each brief.
The SVPA permits the involuntary civil commitment or recommitment of persons who are found beyond a reasonable doubt by a jury to be sexually violent predators. (§ 6603, subd. (a), former § 6604.) The term of commitment is two years. (Former § 6604.) The SVPA defines a sexually violent predator as one “who has been convicted of a sexually violent offense against two 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.” (Former § 6600, subd. (a)(1).) A “ ‘diagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity 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).) The standard SVPA jury instruction uses the statutory language. (CALJIC No. 4.19.)
Pritchett argues that former section 6600, and thus CALJIC No. 4.19, allows commitment on a finding of emotional impairment alone without a finding that a defendant has serious difficulty controlling his or her behavior. Pritchett considers an impairment of “volitional capacity” equivalent to the constitutionally required element of serious difficulty in controlling behavior. He then argues that because the SVPA defines a diagnosed mental disorder as a condition affecting emotional or volitional capacity, it does not necessarily encompass the element of a serious difficulty controlling one’s behavior. (§ 6600, subd. (c), emphasis added.) In other words, Pritchett argues that a defendant who suffers from a condition that affects his emotional capacity and predisposes him to commit criminal sexual acts such that he is a menace to society would not necessarily have serious difficulty controlling his behavior.
Pritchett acknowledges that the California Supreme Court held in People v. Williams (2003) 31 Cal.4th 757, 759 that the language of the SVPA, incorporated into CALJIC No. 4.19, “inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal sexual behavior” and that no additional instruction about serious difficulty controlling behavior is constitutionally required. Pritchett nevertheless contends that the court in Williams did not consider whether the “emotional capacity” language of the statute was constitutionally adequate because the facts before it did not present the issue. Pritchett contends that the holding in Williams does not preclude a finding of constitutional error.
Pritchett misreads Williams. The holding clearly encompasses the emotional capacity language in the SVPA’s definition of a diagnosed mental disorder. Williams holds that the SVPA “inherently embraces and conveys the need for a dangerous mental condition characterized by impairment of behavioral control. As we have seen, the SVPA accomplishes this purpose by defining a sexually violent predator to include the requirement of a diagnosed mental disorder ([former] § 6600, subd. (a)(1)) affecting the emotional or volitional capacity(§ 6600, subd. (c)), which predisposes one to commit criminal sexual acts so as to render the person a menace to the health and safety of others (ibid.), such that the person is ‘likely [to] engage in sexually violent criminal behavior’ ([former] § 6600, subd. (a)(1)). [Citation.] [¶] . . . SVPA states no category of committable disorder which does not expressly require a dangerous effect on emotional or volitional capacity.” (Williams, supra, 31 Cal.4th at p. 774, see also pp. 776-777.)
Williams specifically addressed the emotional capacity language in its analysis. First, Williams quoted the Crane court that “the States retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for commitment.” (Crane, supra, 534 U.S. at p. 413, quoted in Williams, supra, 31 Cal.4th at pp. 772-773.) Williams then noted that the United States Supreme Court declined to decide in Crane whether confinement based solely on an emotional impairment would be constitutional, but nevertheless it suggested that emotional and volitional impairments were largely synonymous. (Williams, at p. 773; see Crane, at pp. 414-415.) In Crane, the Supreme Court commented, “Here, as in other areas of psychiatry, there may be ‘considerable overlap between a . . . defective understanding or appreciation and . . . [an] inability to control . . . behavior.’ [Citation.] Nor, when considering civil commitment, have we ordinarily distinguished for constitutional purposes among volitional, emotional, and cognitive impairments. [Citations.]” (Crane, at p. 415, quoted in Williams at p. 773.) Williams then summarized the governing principle under Supreme Court precedent as “a constitutional civil commitment scheme must link future dangerousness to a mental abnormality that impairs behavioral control” and “state legislators may define this difficult-to-articulate concept as they wish.” (Williams, at p. 773, emphasis added.) Finally, Williams concluded that the plain language of the SVPA, including the “emotional or volitional capacity” language, inherently encompasses the constitutional requirements. “We are persuaded that a jury instructed in the language of California’s statute must necessarily understand the need for serious difficulty in controlling behavior.” (Williams, at p. 774.)
Pritchett relies on Justice Kennard’s concurring opinion in Williams to support his argument that the majority did not decide the issue of whether the emotional capacity language met constitutional standards. (Williams, supra, 31 Cal.4th at pp. 778-780 (conc. opn. of Kennard, J.).) Justice Kennard wrote, “Taking the language of the SVPA literally, a person could be confined as a sexually violent predator based on a condition that affects his emotional capacity by making the person likely to engage in sexually violent criminal behavior, even if he does not have serious difficulty in controlling his behavior.” (Williams, at p. 779.) Justice Kennard, however, went on to explain that she agreed with the majority’s construction of the SVPA as inherently encompassing the need for a dangerous mental condition characterized by impairment of behavioral control, and noted that this construction was premised in part on “the impossibility of distinguishing between the effects of mental illness on emotional capacity and volitional capacity.” (Williams, at p. 779.) We believe that Justice Kennard wrote separately to encourage trial courts to expressly instruct juries on the serious difficulty in controlling behavior requirement, not because the standard instruction was unconstitutional without that clarification, but because jurors might nevertheless be confused by the instruction. (Id. at pp. 779-780.) Also, expressly instructing juries on the requirement would guard against the risk that the Supreme Court might hold that a separate instruction is constitutionally required. (Id. at p. 780.) Our reading of the concurring opinion is that it confirms that the Williams holding encompasses the emotional capacity language in the statute. The concurring opinion does not support Pritchett’s argument on appeal.
Nevertheless, in subsequent commitment proceedings, the better practice would be for the court to instruct on commitment as a sexually violent predator using CALCRIM No. 3454.
Finally, Pritchett suggests that the California Supreme Court’s analysis of the emotional capacity language in Williams, supra, 31 Cal.4th 757was dictum because on the particular facts of that case there was uncontroverted evidence that the defendant had serious difficulty controlling his behavior. He quotes the court’s statement in the final paragraphs of its opinion that “we also agree with the Court of Appeal that if instructional error had occurred under Kansas v. Crane, supra, 534 U.S. 407, it was harmless beyond a reasonable doubt. [Citation.] . . . [I]t was essentially undisputed that defendant’s diagnosed mental disorder involved serious difficulty in controlling sexual behavior . . . .” (Williams, supra, 31 Cal.4th at p. 778.) When two independent reasons are given for a decision, neither one is mere dictum. (Steinfeld v. Foote-Goldman Proctologic Medical Group (1996) 50 Cal.App.4th 1542, 1549.) The California Supreme Court clearly held that the plain language of the SVPA, including the emotional capacity language, inherently encompasses the constitutionally required element of serious difficulty in controlling behavior. Moreover, even if this holding is technically dictum insofar as it relates to the emotional capacity language, it should be followed because the court announced the holding after a thorough analysis of the issue. (Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 946, 956, fn. 3.)
Pritchett argues that the SVPA violates constitutional standards because it allows commitment where a defendant’s probability of committing future offenses is lower than “more likely than not.” Pritchett acknowledges that his argument is foreclosed by People v. Roberge (2003) 29 Cal.4th 979, 988 and that we are bound to follow Roberge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We conclude that the standard SVPA jury instruction (CALJIC No. 4.19) comports with the Supreme Court mandates in Williams. It does not allow a jury to find a defendant is a sexually violent predator because he or she has an emotional impairment without finding that the defendant has serious difficulty controlling his or her behavior.
Disposition
Pritchett’s confinement as a sexually violent predator pursuant to the jury verdict challenged here terminated during the pendency of this appeal. We therefore dismiss the appeal as moot.
We concur.
SIMONS, Acting P.J., NEEDHAM, J.
Effective November 8, 2006, the SVPA was amended by Proposition 83, The Sexual Predator Punishment and Control Act: Jessica’s Law. (Prop. 83, approved by voters, Gen. Elec. (Nov. 7, 2006).) In this opinion, we cite the statutes in effect in 2004 when Pritchett was committed to the two-year term he challenges in this appeal (e.g., “former section 6600”). When we refer to the SVPA, we refer to the act in effect in 2004. We note that Proposition 83 did not change the definition of “diagnosed mental disorder” in section 6600, subdivision (c), which is the focus of our analysis.