Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kern County, No. FP3628A, Jerold L. Turner, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Procedural Summary
This appeal is from an order civilly committing appellant Alfred Scroggins under what is commonly known as the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) to the State Department of Mental Health (Department) for an indeterminate term. Scroggins had been committed as a sexually violent predator (SVP) since 2003. The recommitment petition was filed on December 16, 2008. Scroggins waived his right to a jury trial and the matter was tried by the court in late 2009. The court found that Scroggins was an SVP as defined by the SVPA and ordered him recommitted for an indeterminate term. Scroggins challenges the validity of his commitment on a number of constitutional and statutory grounds. Based on the California Supreme Court’s recent ruling in People v. McKee (2010) 47 Cal.4th 1172, we reverse the trial court’s order.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
In September 2006, Senate Bill No. 1128 amended the SVPA primarily by changing the former two-year civil commitment for an individual found to be an SVP to an indeterminate-term commitment. There were several significant procedural changes implemented by the 2006 amendments as well. (Stats. 2006, ch. 337, §§ 53-62, hereafter Senate Bill No. 1128.) Later, the voters approved Proposition 83 (“Jessica’s Law”), which also amended the SVPA and several other statutes addressing violent sex offenses. (See Historical and Statutory Notes, 73E West’s Ann. Welf. & Inst. Code (2010 ed.) foll. § 6604, p. 149; Prop. 83, § 27, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006).) Like Senate Bill No. 1128, Proposition 83 changed the two-year civil commitment term to an indeterminate civil commitment.
Factual Summary
The court heard evidence at trial from three experts on whether Scroggins was an SVP as defined by the statute: psychologists Dawn Starr for the prosecution, and clinical psychologists Theodore Donaldson and Jesus Padilla for the defense.
Dr. Starr evaluated Scroggins three times, twice with direct contact. She diagnosed Scroggins with pedophilia (nonexclusive) and alcohol dependence. Pedophilia is a sexual disorder in which the individual has recurrent and intense sexual urges, fantasies, or behaviors directed toward prepubescent children. Starr testified that Scroggins had committed several qualifying offenses under the SVPA, including the 1963 molestation of an eight-year-old girl, and the 1979 sodomy of three boys, ages 11, 12, and 13. One of the boys was Scroggins’s mentally disabled son. A short time after being paroled in 1985, Scroggins committed a second sexual assault against his son, for which he was convicted. In 1989, again after being paroled, Scroggins molested his seven-year-old granddaughter, for which he was convicted. According to Starr, Scroggins attempted another assault on a four-year-old boy, but was not convicted of that offense. The latter offenses occurred despite mental health treatment and parole conditions that Scroggins not be around children. Scroggins’s offenses often included threats of harm if the children told anyone about what happened.
Starr testified that when using the various diagnostic and predictive tools available to her, including the Static-99 actuarial tool and the newer Static-99R and Static 2002R, Scroggins scored in the high-risk category of reoffending, even under the newer tools, until a reduction for his age was applied. When his age was considered under the newer tools, Scroggins scored in the low-to-moderate risk of reoffending. Scroggins was 72 at the time of trial. In Starr’s opinion, Scroggins posed a high risk of reoffending, despite his age, because he showed little insight into his disorder, did not participate in treatment, and had a history of sexual offending that had escalated over the years. Each time he was released from custody he would quickly reoffend.
Starr admitted that Scroggins did not have problems with impulsivity or breaking the law in other areas. His legal problems all relate to sexually assaulting children. Starr testified that Scroggins continued to offend as he aged. Scroggins committed his last offense at age 52. As he got older, Scroggins was out of custody less and less time before reoffending. Starr admitted though that only a small number of people commit sex offenses in their 50’s, 60’s, and 70’s.
Dr. Padilla evaluated Scroggins three times. The first two times he found Scroggins to be an SVP. The third time he concluded that Scroggins did not meet the criteria of an SVP. Initially, Scroggins scored a six on the STATIC-99, which places him in the high-risk category. On the newer STATIC-99R, however, Scroggins scored a three, which means he did not present a serious risk of reoffending because he is now over the age of 60 years. According to Padilla, Scroggins is still “certainly dangerous” and likely to reoffend. The only reason Scroggins falls outside the high-risk category on the actuarial tool is “[d]ue to his age, ” which renders him less likely to commit a sexually violent predatory offense.
Padilla testified that Scroggins has diabetes, congestive heart failure, and high cholesterol; he did not know whether the medication used to control these conditions affected Scroggins’s sex drive. Padilla indicated that Scroggins does have a diagnosed mental disorder, pedophilia. He testified that Scroggins started treatment in July 2008 on his lawyer’s recommendation, but that it is unlikely Scroggins will continue treatment outside a custody setting because he had declined to participate in treatment for years before 2008.
Dr. Donaldson testified he had interviewed Scroggins in the past and had written three reports for him. In Donaldson’s opinion, Scroggins does not currently suffer from a mental disorder. Donaldson testified there is a distinction between pedophilia, a mental disorder, and child molestation, a criminal behavior. According to Donaldson, Scroggins shows no current evidence of pedophilia because his earlier offenses were opportunistic, with children readily available, and he showed no interest in children during his incarceration. According to Donaldson, mental illness does not go away in prison and people who are pedophiles manage to get child pornography even when incarcerated. There is no evidence Scroggins engaged in this type of behavior while incarcerated or even when he committed the crimes. Donaldson found no evidence that Scroggins tried to control his behavior and could not do so. According to Donaldson, there was no evidence Scroggins even considered his behavior to be wrong. As a result, Donaldson concluded that the prior offenses were not the product of a mental illness, but instead were the product of criminal behavior. Donaldson concluded that there is insufficient evidence to support a diagnosis of pedophilia. He also said that the risk of reoffending is reduced over the age of 60 and extremely reduced over the age of 70.
Discussion
I. Equal protection claim
We begin with Scroggins’s equal protection claim. Scroggins contends that he has been denied equal protection because SVP’s receive treatment disparate from other similarly situated persons, specifically, mentally disordered offenders (MDO) subject to commitment under the Mentally Disordered Offenders Act (Pen. Code, § 2960 et seq.) or those civilly committed because they were found not guilty of a crime by reason of insanity (NGI). (Pen. Code, § 1026 et. seq.) The California Supreme Court has decided this issue in People v. McKee, supra, 47 Cal.4th at pages 1196-1208.
Relying on In re Moye (1978) 22 Cal.3d 457 and In re Smith (2008) 42 Cal.4th 1251, the court in McKee found that SVP’s, MDO’s, and NGI’s are similarly situated for equal protection purposes because all three classes of individuals are involuntarily committed to protect the public from those who are dangerously mentally ill. (People v. McKee, supra, 47 Cal.4th at p. 1203.) The court also concluded that these three classes of individuals are treated differently with respect to obtaining release from the involuntary commitment under their commitment statutes and, because these classes of individuals are similarly situated for equal protection purposes, they can be treated differently only upon proper justification. (Id. at pp. 1202, 1207.)
The McKee court concluded that the People have not yet carried their burden of justifying the differential treatment between these three classes of individuals, although it acknowledged that it might be possible to do so. (People v. McKee, supra, 47 Cal.4th at p. 1207.) The court remanded the matter to the trial court to determine whether the People could demonstrate “the constitutional justification for imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (Id. at pp. 1208-1209.) As of this date, the matter is still pending.
McKee does not explain whether the justification will be a one-time finding, forever applicable to all SVP’s committed under the statutory scheme, or whether in every case there must be justification for treating a particular SVP differently than MDO’s and NGI’s. The opinion appears to contemplate a categorical justification with its citation in footnote 9 to Department of Justice studies and the like. (People v. McKee, supra, 47 Cal.4th at p. 1206, fn. 9.) However, it also suggests in footnote 10 that there may be classes of SVP’s that pose a greater risk to particularly vulnerable victims, such as children. (Id. at p. 1208, fn. 10.) Until we receive further direction from the state Supreme Court, we remand to the trial court to determine whether sufficient justification has been shown in this case for treating SVP’s differently than MDO’s and NGI’s, but will order that proceedings be suspended until further guidance is provided in McKee.
II. Due process, ex post facto, double jeopardy claims
Scroggins contends that California’s SVPA violates the state and federal Constitutions on due process grounds, the prohibition against ex post facto laws, and places him twice in jeopardy. Scroggins acknowledges that the California Supreme Court in McKee has decided these issues against him and that this court is bound by the decision in McKee under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. He raises the issues in order to preserve any federal remedy available to him.
We need not expand upon the analysis provided in the court’s opinion in McKee. An initial civil commitment for an indefinite term does not violate due process merely because it is indefinite. (See Jones v. United States (1983) 463 U.S. 354, 368 [statute providing for indefinite commitment of 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 [upholding Kansas SVPA, which provided for commitment until mental abnormality or personality disorder has so changed that 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 held “as long as he is both mentally ill and dangerous, but no longer.” (Foucha v. Louisiana (1992) 504 U.S. 71, 77.) As the court stated in McKee, the SVPA as amended meets this constitutional standard of due process. The required periodic reviews of the SVP’s mental health status and the petition-for-release procedures minimize the risk of erroneous deprivation of liberty. (§§ 6605; 6608.) California’s scheme assures that an individual remains committed only as long as he or she meets the statutory definition of an SVP. (People v. McKee, supra, 47 Cal.4th at p. 1193, see also Kansas v. Hendricks, supra, 521 U.S. at pp. 364-365.) The amended SVPA has repeatedly withstood challenges on due process grounds. Consistent with McKee, we conclude there are no due process deficiencies.
It is established now that a commitment under the SVPA, even as amended, is civil in nature and does not amount to punishment. (People v. McKee, supra, 47 Cal.4th at pp. 1194-1195.) Since the SVPA as amended is not punitive in nature, the constitutional provisions prohibiting ex post facto laws and double jeopardy are inapplicable. (See Kansas v. Hendricks, supra, 521 U.S. at p. 369 [similar law in Kansas not punitive in nature, double jeopardy does not apply]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1179 [SVPA did not violate constitutional proscription against ex post facto laws because SVPA does not impose punishment or implicate ex post facto concerns]; see also Collins v. Youngblood (1990) 497 U.S. 37, 43 [ex post facto clause prohibits only those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts”].)
III. Underground regulation
Next, Scroggins claims that the order of commitment is invalid because it was obtained by the use of evaluations procured by the Department in violation of the Administrative Procedures Act (APA). (Gov. Code, § 11340 et. seq.) Government Code section 11340.5, subdivision (a), of the APA provides that “[n]o 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 is charged with enforcing this requirement. (Gov. Code, §§ 11340.1, 11340.5, subd. (b).)
The SVPA requires that a suspected SVP undergo two psychological evaluations conducted pursuant to a protocol established by the Department. Evaluations concluding that an individual is an SVP lead to what is essentially a probable cause hearing and ultimately to trial. (§ 6601, subds. (c) & (d); Cooley v. Superior Court (2002) 29 Cal.4th 228, 247 (Cooley).) The protocol is statutorily mandated for use in the administrative actions leading up to the filing of an SVP petition (§ 6601, subds. (c) & (d)) and was used in this case as the foundation for the expert opinion that Scroggins was an SVP as defined by the SVPA. The evaluations play a significant part in the trial process, as well as in the probable cause hearing. (People v. Scott (2002) 100 Cal.App.4th 1060, 1063 [evaluation is collateral procedural condition designed to ensure SVP proceedings initiated only when there is substantial factual basis for doing so, but after petition is filed, issue becomes whether there is evidence that alleged SVP is likely to engage in sexually violent predatory criminal behavior].)
The Office of Administrative Law found that the protocol used in Scroggins’s commitment proceedings was an “underground regulation” and unlawful. (2008 OAL Determination No. 19, Aug. 15, 2008 (OAL file No. CTU 2008-0129-01).) “‘An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA]. [Citation].’” (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429.) The Fourth District Court of Appeal has also concluded that the protocol is an underground regulation in violation of the APA. (In re Ronje (2009) 179 Cal.App.4th 509, 513.)
Scroggins contends that, because the protocol is illegal, the trial court lacked jurisdiction to commit him. This claim has been rejected in three separate published Court of Appeal decisions, including In re Ronje, supra, 179 Cal.App.4th 509, People v. Medina (2009) 171 Cal.App.4th 805 (Medina), and People v. Taylor (2009) 174 Cal.App.4th 920. We agree with the analysis in these three decisions and see no reason to deviate from their conclusion that the invalidity of the protocol does not deprive the trial court of the fundamental jurisdiction to hear the SVPA commitment proceeding.
The next step is to determine whether remand is required to allow evaluation under a properly adopted protocol. Respondent argues that this issue has been forfeited, citing Medina, supra, 171 Cal.App.4th at page 817 and People v. Taylor, supra, 174 Cal.App.4th at pages 937-938, because Scroggins failed to raise it in the trial court. Scroggins responds that if the issue has been forfeited, he was denied effective assistance of counsel. In light of the ineffective-assistance-of-counsel claim, we will decide the issue on the merits.
The initial identification of an SVP begins with screening by the Department of Corrections and Rehabilitation for possible conviction of a sexually violent predatory offense and of the inmate’s social, criminal, and institutional history. (§ 6601, subds. (a)(2), (b).) If the screening identifies the inmate as a likely SVP, two psychiatrists or two psychologists or one of each use evaluation protocols to determine whether the inmate meets the statutory criteria of an SVP. (§§ 6000, 6601, subds. (b), (c).) “The purpose of this evaluation is not to identify SVP’s but, rather, to screen out those who are not SVP’s.” (Medina, supra, 171 Cal.App.4th at p. 814.) Only if both evaluators concur that the inmate “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody” does the Department then request the filing of a petition for commitment. (§§ 6601, subd. (d), 6602.)
“The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. ‘[T]he requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.”’ (People v. Scott, supra, 100 Cal.App.4th at p. 1063.) “The legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process. [Citation.]” (Medina, supra, 171 Cal.App.4th at p. 814.)
Judicial proceedings, all of which occur after the use of an evaluation protocol, have several stages. The first stage is a “facial review of the petition, ” by which the court determines “‘whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that [the defendant] is likely to engage in sexually violent predatory criminal behavior upon his or her release.’” (People v. Hayes (2006) 137 Cal.App.4th 34, 42 (Hayes); § 6601.5.)
If the court makes that determination, the second stage is a probable cause hearing at which the inmate has the right to receive the assistance of counsel, to present “oral and written evidence, ” and to “‘challenge the accuracy’” of the evaluations by cross-examining the experts. (Cooley, supra, 29 Cal.4th at p. 245, fn. 8; § 6602, subd. (a).) At the probable cause hearing, the court determines “whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).) The probable cause hearing in an SVPA case, like the preliminary hearing in a criminal case, tests the sufficiency of the evidence behind the allegations and protects the accused from having to face trial on groundless charges. (Cooley, supra, at p. 247; Hayes, supra, 137 Cal.App.4th at p. 43.) The probable cause hearing “is only a preliminary determination that cannot form the basis of a civil commitment; the ultimate determination of whether an individual can be committed as an SVP is made only at trial. (§ 6604.)” (Cooley, supra, at p. 247.)
It is for this reason that the decision in In re Ronje, supra, 179 Cal.App.4th at page 517 is procedurally distinguishable from this case. There, the court did not require a showing of prejudice. The petitioner sought an order from the court requiring that the preliminary determination (of whether petitioner was an SVP) be done using a valid protocol. The case had not yet proceeded to trial but was in the preliminary determination stage. The court granted the request, setting aside the early preliminary determination without a showing of prejudice. The court expressly limited its order that the preliminary decision be redone, however, to “‘pretrial challenges of irregularities.’” (Ibid.) The standard of review of both a probable cause hearing in an SVPA case and a preliminary hearing in a criminal case is harmless error, irregularities “‘which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if the defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error.…’” (Hayes, supra, 137 Cal.App.4th at p. 50, citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; cf. People v. Hurtado (2002) 28 Cal.4th 1179, 1190.)
If the court makes the probable cause determination, the third stage of an SVPA proceeding is a trial, where the court or the jury determines “whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release.…” (§ 6602, subd. (a).) Scroggins received the benefit of a full trial, and it was only after a full trial that he was determined to be an SVP. After Scroggins waived his right to a jury, the matter was tried by the court. The court found beyond a reasonable doubt that Scroggins was a person who, by reason of a diagnosed mental disorder, posed a danger to the health and safety of others in that he is likely to engage in acts of sexual violence upon his release into society. This determination was made not on the initial protocol evaluations, but reached after consideration of the testimony of the experts who had interviewed, evaluated, and diagnosed Scroggins. The experts were thoroughly cross-examined about their findings; their conclusions were questioned; the methodology used was challenged. There is no suggestion in the record that the evaluators felt constrained by the protocol and would have concluded differently had they not been required to follow it.
The use of invalid assessment protocol evaluations as a basis for filing an SVP commitment petition does not require reversal of a commitment order unless the defendant demonstrates “that he or she was deprived of a fair trial or otherwise suffered prejudice.” (Medina, supra, 171 Cal.App.4th at p. 819; see also People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Scroggins does not allege that he was deprived of a fair trial, and he does not demonstrate other prejudice. There is no evidence that, had the protocol used in his case been submitted to APA review, it would have been changed or that any changes would affect Scroggins’s personal standing as an SVP. The Office of Administrative Law’s determination includes a caveat that its review of the protocol was only for the purpose of deciding whether it was a regulation within the meaning of the APA and that it was not evaluating the advisability or wisdom of the protocol itself. (OAL Determination No. 19, supra, at p. 1.) The record is simply insufficient to show that a different result was probable had the Department’s protocol been vetted through APA procedures. (Medina, supra, at p. 820.) Scroggins argues that he has demonstrated prejudice because it is reasonably likely that he would have avoided initiation of commitment proceedings or the petition would have been dismissed if he had been evaluated under the current protocol. But Scroggins was not entitled to be evaluated under the current protocol; he was only entitled to be evaluated under an APA-compliant protocol. Because there is no evidence that the protocol would have been different had it been vetted, Scroggins cannot show prejudice.
DISPOSITION
The order for commitment finding Scroggins to be an SVP within the meaning of section 6600 et seq. and committing him to the custody of the Department is affirmed, except for the commitment for an indeterminate term, which is reversed. The matter is remanded to the trial court for reconsideration of whether an indefinite commitment violates equal protection. The trial court, however, shall suspend further proceedings pending finality of the proceeding on remand in McKee. (McKee, supra, 47 Cal.4th at pp. 1208-1210.) “Finality of the proceedings” in McKee shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.
We Concur: Hill, P.J., Poochigian, J.